Summary: Ms X complained about the Council’s delay in arranging a respite stay for her mother Mrs Y and its refusal to fund a long term stay at their preferred care home which requires a significant top up. The Council was not at fault.

The complaint

1. Ms X complained the Council failed to offer her mother, Mrs Y, a suitable care home for a respite stay, near enough for family to visit regularly. She said this caused her distress and frustration as she needed a break from her caring role. Ms X said she therefore placed Mrs Y in a nearby care home for respite, which required a top-up of £375 per week. Ms X said Mrs Y is now settled at the care home and the family want her to stay there long term, but the Council will not fund it and the family cannot afford to pay the top up long term. Ms X said moving Mrs Y would be detrimental to her health and mental well-being and would limit her opportunity to see family.

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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. 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

4. I have considered the information provided by Ms X and have discussed the complaint with her on the telephone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
5. I gave Ms X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Relevant law and guidance

Paying for care

6. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
7. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
8. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees. This is called the client contribution.
9. In circumstances where a placement in a care home is necessary, the Care Act 2014 says there must be at least one placement choice available that is affordable within the person’s personal budget (the amount the council has determined it will cost to meet the person’s needs). 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 these circumstances, the council must not ask anyone to pay a top up fee.

Top ups

10. 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 additional amount, i.e. top up the personal budget.
11. The Care and Support Statutory Guidance 2014 sets out that the council must ensure that the person paying the top up is willing and able to meet the additional cost for the likely duration of the arrangement, recognising that this may be for some time into the future. Therefore, it must ensure that the person paying the top up enters into a written agreement with the council, agreeing to meet that cost.
12. The council must make clear in writing the consequences should there be a break down in the arrangement to meet the cost of the top up. This should include that the person may be moved to an alternative accommodation where this would be suitable to meet their needs and affordable within the personal budget. The council must undertake a new assessment before considering this course of action, including consideration of a requirement for an assessment of health needs, and have regard to the person’s wellbeing.

Funded nursing care

13. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If it is determined a person’s overall needs would be most appropriately met in a care home providing nursing care (a nursing home), then this would lead to eligibility for NHS-Funded Nursing Care.

What happened

14. Mrs Y has dementia and other health conditions. From March 2021, she lived with her daughter Ms X and received four care visits a day. The following is a summary of what happened and does not refer to every contact between the Council and Ms X.
15. In September 2022 Ms X contacted the Council to request a respite stay, with a view to a longer term care home stay for Mrs Y as she was finding it increasingly difficult to manage her care.
16. A social worker completed a needs assessment in October 2022 and recommended a two week respite stay. The Council offered a care home, but Ms X considered it was too far away and requested the Council find somewhere locally as she did not drive and she intended to visit Mrs Y regularly.
17. Ms X contacted the Council and asked if respite could be provided at care home A. The Council contacted care home A and it confirmed it had a place, but it required a large top up which the Council was unwilling to fund.
18. The social worker completed an application for funded nursing care and the NHS confirmed Mrs Y qualified for this in late October 2022. The Council therefore identified a nursing home, care home B, accessible on public transport for Mrs Y, at the rate the Council was willing to pay so no top up was required. Ms X refused it as she said it was not easy to get to on public transport and she did not consider the area was safe.
19. In early November 2022 the Council offered two other nursing homes with vacancies at the Council rate but these were much further away. The Council contacted four further homes but they did not have a vacancy. It identified six care homes with places available but all of which were some distance away (over one hour on public transport) and five of them required a large top up. Ms X did not agree to any of the offers.
20. The Council identified another care home, care home C, but it did not have a place at the time. Ms X agreed to Mrs Y being placed on the waiting list for this care home.
21. Ms X again requested care home A. The Council explained it required a large top up and sent her a link to the Care and Support Statutory Guidance. Ms X advised she could not pay a top up. The Council considered its offer of care home B was a suitable offer and that it had discharged its duty to offer a suitable care home, within budget. However, it agreed to continue to try and identify a suitable care home for Mrs Y.
22. In mid December 2022 Ms X told the Council she had decided to wait until after Christmas to explore respite further.
23. In early January 2023 Ms X requested another care home she had identified, care home D. The Council explained it required a top up of £372.33 per week. The Council also explained it was a residential care home not a nursing home. It advised Mrs Y could go there if the family were willing to pay the top up and if care home D could demonstrate it could meet Mrs Y’s needs with the support of District Nurses. Ms X confirmed the family was willing to pay the top up by email and signed an agreement for a respite stay for two weeks. Care home D confirmed it could meet Mrs Y’s needs with District Nurse involvement. Mrs Y moved into care home D.
24. Ms X complained to the Council about the delay in finding respite and queried the amount the Council would pay towards Mrs Y’s care costs.
25. In early February 2023 the social worker presented Mrs Y’s case to the Council’s resource allocation panel. The Council agreed to extend the respite for two weeks while it assessed whether the family could afford to pay the top up long term.
26. Ms X contacted the Council in mid February. She was unhappy with the amount the Council would pay towards Mrs Y’s care and that the FNC could not be used towards the cost of the care home. The Council explained FNC was to pay for 24 hour nursing provision in a care home so could not be paid as Mrs Y’s nursing needs were being met by District Nurses. It said Mrs Y could be placed on the waiting list for care home C again, which was a nursing home that Ms X had previously been willing to consider which did not require a top up. Ms X wanted Mrs Y to remain at care home D because of its location close to where she lived and asked the Council to reconsider the amount it would pay.
27. The Council responded to Ms X’s complaint in late February 2023. It set out the offers of placements made to Ms X and its view that it had offered more than one affordable option in line with the Care and Support Statutory Guidance. It explained why Mrs Y could not receive FNC as care home D was a residential home. It explained it may be advisable to move Mrs Y to a nursing home in the longer term.
28. The Council further extended the respite placement. Mrs Y’s social worker left and the Council allocated the case to another social worker to undertake a review of Mrs Y’s needs to determine if she could be moved to alternative accommodation.
29. The review concluded Mrs Y lacked capacity to make a decision about where she should live permanently, and a best interest decision was required. The social worker noted that care home D was currently meeting Mrs Y’s needs but due to Mrs Y’s health conditions she would be better placed in 24 hour nursing care where there was 24 hour nursing support from a registered nurse and where no top up was required. They noted Ms X agreed for a new home to be identified since she could not pay the top up.
30. Mrs Y is on the waiting list for a place at care home C, a nursing home which does not require a top up.

Findings

Arranging respite

31. When Ms X requested respite the Council assessed Mrs Y’s needs and agreed to arrange this. It sought to meet Ms X’s request for a care home within a reasonable distance. It offered a nursing home within the Council’s budget, accessible by public transport within a reasonable time. Ms X considered the area was not safe to travel to on public transport. However, the Council was satisfied the offer was appropriate. It offered several other homes which did not need a top up, although they were further away plus other care homes which required a top up. The Council acted in line with the Care and Support statutory Guidance so there was no fault in the Council’s actions.

Long term care

32. Ms X chose care home D and the Council was satisfied it could meet Mrs Y’s needs for a respite stay. Ms X wanted Mrs Y to stay in the placement long term and although she had agreed to pay the top up for two weeks respite, she refused to pay it for any longer period.
33. Care home D is significantly above the rate the Council was willing to pay. The Council is not required to pay a top up if there is another care home within budget, with a place available, that can meet the person’s needs. The Council sought to resolve the issue but Ms X was not willing to pay the top up. At this point the Council should have carried out a prompt reassessment to determine where Mrs Y needed to live to have her needs met in a long term placement.
34. The Council has now reassessed Mrs Y’s needs and has concerns about the suitability of care home D as a long term option given her nursing needs. Ms X has agreed to Mrs Y’s move to a nursing home and Mrs Y is on the waiting list at care home C.
35. As Ms X only signed the top up agreement for a two week stay the Council has decided she will not be charged the remaining outstanding top up fees. Mrs Y is on the waiting list for care home C and in the meantime continues to be supported at care home D. So even if I was to say the delay in the reassessment of Mrs Y’s needs was fault, there is no evidence this caused Mrs Y or Ms X an injustice.

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Final decision

36. I have completed my investigation. The Council was not at fault.

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Investigator's decision on behalf of the Ombudsman