Summary: Mrs X complained that the Council failed to effectively search for a suitable care placement for her mother, Mrs P. She says the family felt pressured to accept an unaffordable placement. The Council undertook a thorough search for a placement for Mrs P. However, ultimately, it was at fault for failing to provide a genuine choice of placement. This caused Mrs P an injustice as she felt she had to pay a top-up fee to place her mother in a suitable care home.

The complaint

1. Mrs X complained that the Council:
1. Failed to conduct a proper search of placements that were suitable for Mrs P in line with the wishes expressed in her Care Assessment.
2. Pressured the family to accept a placement with a top up fee that was unaffordable, and
3. Failed to communicate helpfully.
2. Mrs X says the Council’s approach has caused her distress because she is unable to afford the top-up fee for her mother’s placement and has found the Council’s approach unhelpful and distressing.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I spoke with Mrs X
6. I researched the relevant law and guidance and made enquiries of the Council.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law

Choice of care homes

8. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home place for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions.
9. The council must ensure:

• the person has a genuine choice of accommodation;
• at least one accommodation option is available and affordable within the person’s personal budget; and,
• there is more than one of those options.

10. Annex A of the Care and Support Statutory Guidance 2014 (“the Guidance”) sets out that a person will have the right to choose the particular provider or location of a care home, subject to conditions. It says that in these cases, councils should make sure there are clear and transparent arrangements for choice and for any ‘top-up’ arrangements.
11. It also says that a person’s choice must not be limited to settings or individual providers with which the Council already contracts with or operates, or those that are within the local authority’s geographical boundary. It must be a genuine choice across the appropriate provision. Only when a person has chosen a more expensive accommodation can a ‘top-up’ payment be sought.
12. It says that if a person chooses to be placed in a setting that is outside the local authority’s area, the local authority must still arrange for their preferred care. In doing so, the local authority should have regard to the cost of care in that area when setting a person’s personal budget.

Top-up payments

13. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top-up fee is the difference between the personal budget and the cost of a home.
14. However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:

• the person can find someone else (a ‘third party’) to pay the top-up; or
• the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themself.

15. In such circumstances, the council needs to ensure the person paying the top-up is willing and able to meet the extra costs for the likely duration of the agreement.

What happened

16. Below is an account of the material facts in this complaint. It is not meant to be a chronology of everything that happened.
17. Mrs X’s mother, Mrs P, suffers from dementia. In July 2021, she was living in sheltered accommodation. The Council and Mrs X believed Mrs P needed to move into a care home.
18. Mrs X contacted the Council to begin the process. In July 2021, the Council completed an assessment of Mrs P’s needs. Within that assessment it noted that her family was important to her and that she needed to have continued contact with them.
19. In August 2021, Mrs P went to stay with her sister who was in her eighties and found caring for Mrs P quite difficult.
20. In September 2021, Mrs X contacted the Council and explained that Mrs P would have to move out of her sister’s house by 5 November 2021 and therefore needed a care home quickly. She said a home near her own would be best so that she could keep in contact as she could not go to the Council’s area regularly as she does not drive. She said she used to visit Mrs P after work, (as her offices were near Mrs P’s previous supported accommodation), but she had taken a new job and would no longer be able to do so. She suggested several homes in her area which could be suitable.
21. The Council told Mrs X that her request for a home in her area would be decided by a panel.
22. On 4 October 2021, Mrs X pressed the Council for an update. She explained that, because of Mrs P’s sister’s own health problems, Mrs P could not stay with her for much longer. She also said Mrs P would have to provide notice to her supported accommodation tenancy soon if she was going to move out. A Council officer, Officer D, told her that Mrs P’s case would be presented to panel the next day.
23. Officer D told Mrs X that the Council had agreed to fund a residential placement for Mrs P. She said that, before checking for placements in the area Mrs X wanted, she would have to first check if there were any beds available in the Council’s area that could meet Mrs P’s care needs. Officer D said that one of the homes Mrs X had suggested would involve the family having to pay a top-up fee as it was above Mrs P’s personal budget.
24. The panel notes do not record that the Council decision had been to look in the Council’s area first. However, in other records, there is an indication that the panel’s view was that officers should make their search for accommodation in the local area first before looking closer to Mrs X’s home.
25. Mrs X responded saying:

• Family members could not afford to pay a top-up fee in the long-term.
• She did not feel Mrs P or the family’s wishes had been considered as they all felt a placement near Mrs X would be most suitable for Mrs P.
• She wanted to know if the Council had tried to negotiate costs with the more expensive home setting.

26. Officer D responded that the Council had to be mindful of the public purse. She also said that if the homes in the local Council’s area did not make an offer, she would look at placements in the area preferred by Mrs X.
27. The Council says it is its policy, as Mrs P had been living in its area and her family had been visiting her there, to first look at homes there before looking elsewhere if necessary. It says it also looked in the area where Mrs P’s sister lived and in other nearby areas, but these options were, it says, refused by Mrs X.
28. Mrs X continued to argue that a home near her would be more suitable for Mrs P. She offered to take care of Mrs P for a few weeks while waiting for a space to become available in her local area. I have not seen any evidence that this option was considered.
29. On 7 October 2021 the Council made enquiries with three homes in its local area. One home said it could meet Mrs P’s needs but Mrs X declined this option. She said Mrs P “…would be completely cut off from me and from her sister.” She said she wanted Mrs P to stay in a home near her house.
30. She told the Council that she had taken legal advice and that, if the home she wanted was the only home available, the Council would have to increase Mrs P’s personal budget and should not ask the family to pay a third-party top-up fee.
31. On 8 October 2021, the Council made a referral to a home in Mrs X’s preferred area which I shall call Home 1. Mrs P eventually obtained a placement there.
32. The Council also made enquiries with two other homes in Mrs X’s preferred area. In one case, there were no vacancies and the other was more expensive so would require a large top-up fee. I have seen evidence that the Council tried to negotiate a more manageable fee but this was not successful.
33. On the same date, the Council told the home in its local area to ‘stand down’ because Mrs P’s family did not want a placement in that area.
34. On 13 October 2021 Mrs X asked the Council for an update. The Council made enquiries with the three homes in Mrs X’s preferred area again and updated her.
35. On 15 October 2021, an internal record showed that Mrs P’s social worker agreed with Mrs X that a placement in Mrs X’s area would be in Mrs P’s best interest. She said: “Living there, she will be able to have frequent visits and possibly be taken out on visits. She actually has no family living in [the local area] now and would be isolated from family.” Mrs P’s social worker considered Mrs P’s options, including placing her in respite until a place became available near Mrs X.
36. On 19 October 2021, Council officers made enquiries again and were given a rough estimate of the fees for Home 1. It was lower than the actual cost. The next day, a vacancy at Home 1 arose. Council officers tried to secure this. When they did so, it became clear that the actual cost of the placement was almost £100 more than had been initially anticipated.
37. Internal records show that the Council considered that, as Mrs X could have accepted a placement in its local area that was within budget, she would have to pay a top-up if she wanted Mrs P to secure a placement at Home 1.
38. Another social worker who spoke to Mrs X said she thought that it would be beneficial for Mrs P to be placed near her family. She also noted that Mrs X had confirmed that she could not afford to pay the top-up fee.
39. Council officers sought senior management advice. The response was that, if there was no suitable placement available in the local area, the Council would have to agree to a placement at Home 1.
40. Officers negotiated a lower fee at Home 1. The top-up was therefore reduced to just over £25 per week. The records show the Council called Mrs X, who agreed to pay this sum. However, it was noted that Mrs X was not happy and felt that the family should not have to contribute. Mrs X later complained that she had agreed to pay under duress.

Analysis

41. Mrs P’s care plan said she needed to have continued contact with her family. Mrs X does not drive and told the Council that, if Mrs P were to be placed in the Council’s area she would be cut off from her family.
42. The Guidance is clear that if a person chooses to be placed in a setting that is outside a local authority’s area, the local authority must still arrange for their preferred care. It says that in doing so, it should have regard to the cost of care in that area when setting a person’s personal budget.
43. That does not mean a person can ignore cheaper, suitable placements and expect a council to pay extra for a more expensive option. The Guidance does not allow for that situation. But that was not the case here.
44. The Council appears to believe that Mrs X had been given a genuine choice of accommodation but chose the more expensive and preferred option. It viewed that Mrs X could have agreed to place Mrs P in the home in its area which was within budget and that, therefore, she should pay the top-up fee.
45. But I do not consider Mrs X was given a ‘genuine choice’. Mrs X was given a choice between a home, within budget, that was not suitable and a home outside of budget but that was suitable. It was not just Mrs X’s view that Mrs P needed to have regular contact with her family and that living in the Council’s local area would have prevented this. The records show that two Council social workers agreed.
46. This is not, therefore, a case where Mrs X demanded a more expensive home. In this case, Mrs X was only given one viable option. That being the case, the Council should have offered to pay the top-up fee.
47. Further, councils should ensure that a third-party payer is willing and able to make payment of the top-fee fee before charging it. In this case, Mrs X said that the family could not afford to pay top-ups in the long-term and only agreed to pay in the short term because placing her mother in a home in the Council’s local area was not a real option. Therefore, despite the fact that Mrs X signed the agreement to pay top-ups, the records show she had made it clear to the Council that she was neither willing nor able to pay. The Council did not provide any evidence to show how it satisfied itself that Mrs X was in fact able and willing to pay. In response to enquiries, the Council said it was developing a top-up financial questionnaire, to be included in a person’s financial assessment. It now has concerns that this approach might not be supported in law. It is in the process of taking legal advice to try and find a way to ensure that when a person agrees to pay a top-up fee, the Council can be reasonably satisfied that they are willing and able to meet the extra costs for the likely duration of the agreement.
48. The Council also says Mrs X refused to allow it to search in other areas which were close to her. However, I have not seen any evidence that supports this claim. In any event, even if the Council thought Mrs X would decline other options, if the Council had presented Mrs X with those options and costings - and they had been suitable, affordable and available - Mrs X would not have been able to argue that she had not been given a genuine choice.

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Agreed action

49. Within one month of our final decision, the Council should:

• Apologise to Mrs X for the fault identified in this decision.
• Arrange to refund the payments Mrs X has so far paid for top-up fees and to pay the top up fees in the future.

Within two months of our final decision, the Council should:

• Inform the Ombudsman of the outcome of its legal advice and what steps it has taken to ensure that it can be reasonably satisfied that a person agreeing to pay a top-up fee is willing and able to meet the extra costs of that fee for the duration of any agreement.

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Final decision

50. I have found the Council at fault and have made recommendations to address the injustice caused by the fault. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman