Summary: Miss B, complains for her grandmother, Ms C, the Council placed her in a care home without explaining the charges she would incur and delayed undertaking a financial assessment. Miss B says Ms C lived in the care home for three months before the Council told her she would need to pay a top-up fee she could not afford. We found fault with the Council for failing to provide Miss B with accurate and timely information about the cost of residential care. The Council will remedy the injustice caused to Miss B and her family by its faults by apologising and cancelling the top-up fee.

The complaint

1. The complainant, who I will refer to as Miss B, complains for her grandmother, Ms C, the Council placed her in a care home without explaining the charges she would incur and delayed undertaking a financial assessment. Miss B says Ms C lived in the care home for three months before the Council told her she would need to pay a top-up fee she could not afford. Miss B says moving Ms C to a new care home would risk her health declining.

Back to top

The Ombudsman’s role and powers

2. 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)
3. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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)

Back to top

How I considered this complaint

5. I considered:
• Miss B’s complaint and the information she provided;
• documents supplied by the Council;
• relevant legislation and guidelines; and
• the Council’s policies and procedures.
6. Miss B, Ms C and the Council had the opportunity to comment on a draft decision. I considered their comments before making a final decision.

Back to top

What I found

Legislation and Guidance

7. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated June 2020) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the council’s duties towards adults who need care and support and its powers to charge.
8. Councils must undertake a Care Act assessment for any adult with an appearance of need for care and support. We expect councils to complete assessments in a timescale that is proportionate to the complexity of the issues, and normally within four to six weeks.
9. The Care Act says that, if a person needs residential care and their capital falls below the threshold of £23,250, they will be eligible for council-funding to pay for this. The council will carry out a financial assessment to decide if the service-user should pay a contribution towards the care charges.
10. If a person is eligible for council funded care, the council must find them a care home within their personal budget. The personal budget is the cost to the council of meeting the person’s needs.
11. Where a council is responsible for meeting a person’s care and support needs and their needs have been assessed as needing a care home to ensure that they are met, the person must have the right to choose between different providers provided:
• the accommodation will meet the person’s assessed needs.
• to do so would not cost the council more than the adult’s personal budget for accommodation of that type.
• the accommodation is available.
• the provider of the accommodation is willing to enter a contract with the council to provide the care at the rate identified in the person’s personal budget.
12. The council must ensure at least one option is available that is affordable within a person’s personal budget.
13. If a person chooses a more expensive placement than the council will pay, someone must be willing and able to pay the difference between the amount the council will pay (including the resident’s financial contribution) and the full cost of the placement for as long as necessary. This is called a top-up. Normally a
    third-party such as a relative will pay the top-up.
14. Only when a person has chosen more expensive accommodation can a ‘top-up’ payment be sought.
15. The Council must ensure the person paying the top-up enters a written agreement, agreeing to meet that cost. The council must provide the person paying the top-up with enough information and advice to ensure that they understand the terms and conditions.
16. If the arrangements for a top-up fail for any reason, the council must meet the cost or make alternative arrangements, subject to a new needs assessment that considers the person’s well-being.
17. Council should have regard to the following principles:
• good communication of clear information and advice to ensure well informed decisions.
• clear and transparent arrangements for choice and any top-up arrangements.
• clear understanding of potential consequences should top-up arrangements fail with clear exit strategies.
18. Councils must provide information about the choices open to individuals and must explain a person’s rights under the Care Act. This must include advice and information to help people understand charges so they can make informed financial decisions.

Complaints procedure

19. Adult Social Care complaints are managed in line with the Local Authority Social Services and National Health Services Complaints (England) Regulations 2009 which were introduced in April 2009.
20. The Council must:
• investigate the complaint in a manner appropriate to resolve it speedily and efficiently; and
• during the investigation, keep the complainant informed, as far as reasonably practicable, as to the progress of the investigation.
21. If the council does not send the complainant a response within six months, it must:
• tell the complainant in writing and explain the reason why; and
• send the complainant in writing a response as soon as reasonably practicable after the relevant period.
22. The Council does not have an adult social care complaints policy. It said it is developing one. It said it follows the Local Authority Social Services and National Health Services Complaints (England) Regulations.

What happened

23. This chronology includes key events in this case and does not cover everything that happened.
24. Miss B is Ms C’s granddaughter. Miss B has power of attorney for Ms C for health and welfare and finances.
25. In July 2022, Miss B asked the Council to undertake a Care Act assessment and assess Ms C urgently for a care home placement. She said Ms C had mixed dementia and her partner was no longer able to care for her at home.
26. The Council decided to offer Ms C a care home placement for a period of assessment. The Council told Miss B it had two care homes with spaces and neither had a top-up fee. Miss B chose care home 1.
27. The Council spoke to care home 1. Care home 1 told the Council it had a top-up fee of £50 a week. The Council told care home 1 this was not what its procurement team advised. Care home 1 confirmed there was a top-up fee and said it would discuss this with Miss B.
28. Care home 1 assessed Ms C and offered her a place. Ms C moved into care home 1 in July 2022 for a period of assessment.
29. Miss B contacted the Council in October 2022. She said Ms C moved into care home 1 in July 2022 for an assessment and asked for an update. The Council said it was waiting to allocate Ms C’s case to a social worker.
30. The Council completed a Care Act assessment in November 2022. It found Ms C required assistance to meet all her care and support needs. It decided she needed a long-term residential placement. The Council’s support plan was for Ms C to remain at care home 1. The assessment recorded a personal budget allocation was not required and Ms C did not have more than the upper capital limit in savings. The Council told Miss B there would be a top-up fee of £50 a week for care home 1. Miss B told the Council they would struggle to pay the top-up fee.
31. In December 2022, the Council gave Miss B information about other care homes that had places, including one that did not have a top-up fee. Miss B told the Council she was worried about the impact on Ms C of moving her to a different care home.
32. Miss B spoke to her family, they decided they would try to pay the top-up fee. Miss B told the Council. The Council said it would carry out a financial assessment for Ms C.
33. In January 2023, the Council sent Miss B information about paying for residential and nursing home care. It explained the rules for paying top-up fees.
34. The Council undertook an internal review of Ms C’s Care Act assessment. It found the cost and payment section of the assessment was not complete. The Council completed this within a week of the audit.

Complaint

35. Miss B complained to the Council in December 2022. She said the Council placed Ms C in a care home in July 2022 for a period of assessment, but it did not undertake an assessment until October 2022. She said the assessment decided Ms C should remain living in care home 1. She said the Council told her she would need to pay a top-up fee. Miss B said the family could not afford the top-up fee, but they did not want to move Ms C. She explained Ms C was settled and familiar with the care staff and her new surroundings. She said a move could cause Ms C’s health to decline. Miss B complained if they had known about the top up fee when the Council arranged the placement, they may have asked for Ms C to be placed in a different care home.
36. The Council responded:

“Unfortunately, due to the current volume of casework we are unable to allocate your complaint to an officer to investigate at this moment in time. However, I can confirm that your correspondence has been passed to an officer to consider.

We are currently allocating complaints received in date order. We will continue to review the situation and will contact you again when we are in a position to allocate your complaint...”

37. Miss B contacted the Council again in April 2023. She said she had still not received a response to her complaint and the family had received an invoice for £1000 in top-up fees.
38. We emailed the Council in April 2023 and it still had not assigned the complaint to an investigator. We considered the Council had enough time to investigate and respond to Miss B. Therefore, we used our discretion to investigate without the Council investigating it first using its complaint procedure.

Enquiry response

39. In response to enquiries the Council said the reason for its delay responding to adult social care complaints was because it suspended processing complaints during COVID-19 and this created a backlog, and because of staff shortages.
40. The Council said it was addressing the backlog by:
• increasing funding for the team from two to four members of staff.
• getting support from other staff in the Council.
• considering allocating complaints to independent agency investigators.

Analysis

41. The Council failed to provide Miss B with clear and accurate information about the cost of care home 1. When the Council arranged a care home placement for Ms C for a period of assessment, it provided Miss B with information about two care homes. It said neither of these charged a top-up fee. Miss B chose care home 1 on this basis. The Council was subsequently told by care home 1 there was a top-up fee. There is no evidence the Council discussed this with Miss B which was fault. Miss B chose care home 1 on the understanding it did not charge a top-up fee. The Council’s failure to provide Miss B with accurate information about the cost of care home 1 before Ms C moved in prevented her from making an informed decision about where Ms C should live and whether the family could pay a top-up.
42. Ms C moved into care home 1 in July 2022 for a period of assessment. We expect councils to complete assessments in a timescale that is proportionate to the complexity of the issues, and normally within four to six weeks. The Council did not start the assessment until October 2022 and complete it until January 2023. This delay was fault. Because of the Council’s delay undertaking the assessment, the Council delayed providing Miss B with information about the cost of Ms C’s care, how this could be paid for, and different care homes and their charges. These delays meant Miss B could not make an informed decision about Ms C’s care until five months after Ms C was placed in care home 1, by which time she was settled in the placement and Miss B felt it would not be in her best interest to move her.
43. The Council did not consider Miss B’s complaint. This was fault. As a result, Miss B lost the opportunity for her complaint to be resolved sooner which may have stopped the Council from sending Ms C’s family an invoice for top-up fees and reduced the distress they experienced. We welcome the measures the Council had put in place to address the delays in its adult social care complaint investigations.

Back to top

Agreed action

44. Within one month of the final decision, the Council will:
• Cancel the bill sent to Ms C’s family for top-up fees for care home 1.
• Ensure Ms C’s family are not charged a top-up fee going forward for care home 1.
• Apologise to Ms C’s family for the distress caused by the Council’s faults.
• Pay Miss B £250 for the distress caused to her and her family by the Council’s faults, including its failure to respond to her complaint.
• Remind staff of the Council’s duty to provide accurate and timely information to help people understand care home charges so they can make informed financial decisions.
• Remind staff of the Council’s duty to undertake Care Act and financial assessments in a timely manner.
45. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

46. I have completed my investigation and uphold Miss B’s complaint. Miss B and her family were caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman