Summary: Mrs X complains about the way in which the Council handled her husband’s transition from self-funded to council-funded care. We find fault with the Council for poor communication, and failing to provide the care and support plan and financial assessment in time, causing her distress and frustration. We have recommended remedies for the injustice.

The complaint

1. Mrs X complains the Council failed to:
1. carry out an assessment for her husband,
2. provide a care and support plan,
3. provide a personal budget,
4. complete the financial assessment and confirm the Council would contribute,
5. tell her it was carrying out an assessment of Mr Y’s mental capacity,
6. respond to communications satisfactorily, and
7. sought a top up fee “unlawfully”.

2. This caused frustration and distress to Mrs X who has found the whole procedure to be stressful.
3. Mrs X would like the Council to provide her with a correct care plan and a breakdown of the financial assessment.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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)
5. 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

6. I spoke with Mrs X about her complaint. I considered the complaint correspondence and documents from Mrs X, and the relevant legislation and guidance.
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 and guidance

Assessment

8. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
9. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

Care and Support Plan and Personal Budget

10. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has.
11. The care and support plan must set out a personal budget. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
12. Care and Support Statutory guidance explains the personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.

Mental capacity assessment

13. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
14. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

15. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
16. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

Financial assessment

17. People have to pay a contribution towards the cost of their care and support. To work out the charge, the council will complete a financial assessment of their capital and income. A person with assets above the upper capital limit, currently £23,250, will have to pay the full cost of their own care. The upper capital limit is also called ‘the capital threshold’ or just ‘the threshold’.

Top-up payment

18. A top-up fee is the difference between the amount in the personal budget and the cost of a care home. 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.

What happened

19. Mrs X’s husband Mr Y lives in a care home (the Home). He was self-funding his care but his savings were close to the capital threshold (see paragraph 17).
20. Mrs X says she asked the Council to complete a care needs assessment for Mr Y in February 2022 and the Council did not respond until March.
21. Mrs X was concerned as the Home said it was raising its fees from April, and Mr Y was coming close to the threshold with his savings. She asked the Council to appoint a social worker and to complete a financial assessment.
22. The Council assigned a social worker in April and a care needs assessment was scheduled for the end of April.
23. Mrs X was unhappy with the assessment. She tells me the meeting was rushed, the social worker seemed to have no knowledge of Mr Y’s needs, and the meeting ended abruptly.
24. The Council emailed the care needs assessment to Mrs X in May. Mrs X says the social worker called her seeking a £50 top up fee for the cost of the Home.
25. In June Mrs X brought a formal complaint to the Council. She said she was still awaiting the financial assessment, the Council did not respond to her in a timely manner, and the social worker sought a top up fee “unlawfully”.
26. At the end of June the Council calculated it would take over funding from 22 August. However the social worker did not tell Mrs X until 23 July.
27. The Council agreed to look at alternative care homes without a top up fee after a meeting with Mrs X in August. It provided details of three independent care homes, and their costs to Mrs X on 18 August.
28. On 15 August the Council attended the Home to do a Mental Capacity assessment with Mr Y. The Council told Mrs X the day after.
29. The Council’s case notes suggest it carried out the assessment because Mr Y has Dementia. The assessment confirmed Mr Y would like to remain in the Home he was in.
30. Mrs X brought a stage two complaint in August, still awaiting the care and support plan and financial assessment, with the other complaints in paragraph 1 above.
31. The complaint responses from the Council in July and September said the following:
1. It apologised for failing to communicate in a timely manner. It said the assessment was carried out in May as Mr Y was going below his savings threshold requiring it to consider the request to take over funding. The finance department will contact Mrs X in August to do the financial assessment as it is not needed until the care home has been agreed and contracted.
2. There was no evidence that a top up fee had been unlawfully requested.
3. The Council is assessing Mr Y for the first time. It is considering the financial assistance, and Mr Y’s care and support plan is still being completed.
4. It gave an indication of Mr Y’s personal budget as assessed in September.
5. The Council will usually complete a financial assessment once a suitable placement has been identified, and it is still awaiting confirmation from Mrs X in this regard. However on this occasion it has set out the “projected” financial implications of the placements Mrs X is considering. The Council also set out the costs of three further independent care home placements.
6. It apologised for the delay in telling Mrs X about its view on Mr Y’s capacity. The Home says that Mr Y has capacity in this matter. As it had conflicting reports the Council instructed an independent person to complete a capacity assessment for this specific decision. At the time of the assessment Mr Y had capacity to choose where he wants to live and he has said he would like to stay in the Home. He also expressed that he would like Mrs X to be involved in the decisions.
32. Mrs X received a copy of the care and support plan in September 2022, but she says it was inaccurate and she is still awaiting an amended completed plan. She sent amendments to the Council in June.
33. The Council wrote to Mrs X on 29 September with the financial assessment and personal budget detailing how much Mr Y has to pay, and the top up fee. These charges came into effect from 28 August so the Council backdated them.
34. This letter gave the wrong date when the Council would start funding (28 August instead of 22 August) so the Council sent a further letter to Mrs X on 7 October with the correct date and calculations. Unfortunately Mrs X did not receive this so she called the Council to chase this up on 12 October and a copy was sent to her on 1 November.
35. Mrs X would like to know the amount the Council are paying towards Mr Y’s care. I can see from case notes that a social worker confirmed to Mrs X in a telephone call in February the Council pay a flat amount of £559.61 for nursing care and funded nursing care of £187.60 is paid on top.

Analysis

Assessment (complaint a)

36. The Care Act does not stipulate a timeframe to complete a social care assessment including a financial assessment. The Care and Support Statutory Guidance says social care assessments need to be completed in a “reasonable timeframe”.
37. Mrs X first contacted the Council on 9 February. The social worker was instructed on 31 March, then there was a delay of a month getting a date Mrs X, the social worker and Mrs X’s advocate could make for the assessment. The assessment was sent to Mrs X on 13 May.
38. Although I can understand Mrs X says this is unreasonable, I do not find fault with the Council for the time it took to provide the assessment to her because it was not urgent, Mr Y was settled in his Home, and it was a request to take over funding which was not due until August so the assessment was provided three months before the Council had any legal responsibility to fund Mr Y’s care.

Care and support plan (complaint b)

39. The notes sent to me by the council following my enquiries show the social worker was told to start the care and support plan on 12 May, but it was not sent to Mrs X until September. Mrs X tells me that she amended it but has still not received the completed amended care plan.
40. The records show there were delays due to negotiations about the third party top up fees however, provisionally, I find fault with the Council as there was an unreasonable delay in completing the care and support plan and sending it to Mrs X. It appears Mrs X has not yet received a copy of the plan which includes her amendments.

Personal budget and financial assessment (complaints c and d)

41. The Care and Support Statutory Guidance (CSSG) says the person’s personal budget should be included in their care and support plan. The Council wrote in the complaint response to Mrs X that it would carry out the financial assessment in August, once the care home placement had been agreed.
42. The Council did not provide this information to Mrs X until a month after the funding threshold had been met. This is fault as Mrs X should have received it before the changes took place, with the care and support plan and personal budget. The Council backdated payment to August so there was no financial loss, but the delay caused avoidable distress and frustration to Mrs X.

Capacity assessment (complaint e)

43. The Council is allowed to carry out an assessment of Mr Y’s mental capacity to decide where he wants to live. The Mental Capacity Act says an assessment is needed where there is doubt about capacity and in Mr Y’s case, there were conflicting views.
44. However, my provisional view is the Council should have told Mrs X, the failure to do so was poor communication with a close relative involved with Mr Y’s care and was fault. It caused Mrs X avoidable distress.

Communication (complaint f)

45. It is clear from the records Mrs X was distressed and worried about the financial situation. The Council should have communicated with Mrs X and managed her expectations better and provisionally, the failure to do so was fault.
46. When Mrs X first contacted the Council on 8 February it gave an estimated start date of about two months. Mrs X called the Council at the end of June in a distressed state and was told the Council would take over funding from 22 August. The social worker did not confirm this with Mrs X until 23 July. This was four months later than the initial advice. It caused avoidable confusion.

Top up fee (complaint g)

47. The Council is entitled to explore whether a relative can afford a top up fee. There is no evidence of "unlawfully" requesting one. The Council provided details of three other independent care homes and their costs to Mrs X.
48. The Council also successfully negotiated the top up fee for the Home where Mr Y wanted to stay from over £100 per week to £25 per week.
49. I therefore do not find fault with the Council as it offered three replacement Home’s which did not require a top up fee.

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Agreed action

50. Within one month of the Ombudsman’s final decision the Council should:
1. Write a personalised apology to Mrs X for failing to properly explain the process of assessment, and for sending the financial assessment a month after the changes had taken place. It should also apologise for failing to tell her it was assessing Mr Y’s mental capacity;
2. Pay Mrs X £200 for the frustration and distress caused by the faults above;
3. Consider the amendments Mrs X asked for and send a final care and support plan;
4. Remind staff involved with this case about the importance of regular and timely communication.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I find fault with the Council for failing to adequately communicate with Mrs X, and failing to provide a care plan and financial assessment in time. We have agreed remedies for the avoidable frustration and distress.

Investigator’s final decision on behalf of the Ombudsman