Summary: Mr X complains that the Council’s communication regarding the financial implications of moving Mr Y into a care home was poor. We find the Council failed to explain the financial implications of placing Mr Y in a care home in writing. But this did not prevent Mrs Y from making an informed decision on whether to place Mr Y in the care home. The Council also failed to request funding for Mr Y’s care home place as it had undertaken to do. Had it done so, it is likely the Council would have contributed to Mr Y’s care home place from the date of his placement. The Council has agreed to remedy the injustice to Mrs Y by apologising to her and backdating its contribution to Mr Y’s care home fees to May 2022.

The complaint

1. Mr X complains on behalf of Mrs Y. He complains that the Council’s communication regarding the process and financial implications of his father moving into residential care was poor. In particular he considers the Council:

• Failed to clearly explain to Mrs Y how Mr Y’s care home placement would be funded and failed to provide information about the funding in writing to enable Mrs Y to understand the funding arrangements and make an informed decision about Mr Y’s placement. Mr X says Mrs Y may have placed Mr Y at a different home if the Council had properly explained the financial implications to her and her family.
• Continued to fail to provide clear information about how Mr Y’s placement would be funded as the Council has not clearly explained the distinction between Mr Y’s client contribution and third party top up in its letters notifying Mrs Y what she needs to pay. As a result Mrs Y is unclear about what fees she should be paying.
• Refused to increase the Council’s contribution to allow Mrs Y and her family to source care at a care home rated good by the Care Quality Commission. As a result Mr Y’s family are having to pay a substantial top up fee for his care home place.

2. Mr X also complains that the Council:

• Did not make allowances in Mr Y’s financial assessment to allow Mrs Y to live in their home;
• Failed to carry out a care assessment for Mr Y in late 2021/early 2022 to determine if he should move into residential care or a carers assessment for Mrs Y when she raised her concerns that she was struggling to care for him.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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

7. I have:

• considered the complaint and the information provided by Mr X;
• discussed the issues with Mr X;
• made enquiries of the Council and considered the information provided;
• invited Mr X and the Council to comment on the draft decision. I considered the comments received before reaching a final decision.

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What I found

Law and guidance

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.
10. 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. This also extends to shared lives, supported living and extra care housing settings.
11. 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.

12. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or, in certain circumstances, the resident is willing and able to pay the additional cost. This is called a ‘top-up’ or third party contribution.
13. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
14. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
15. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
16. The personal budget is defined as the cost to the local authority of meeting a persons needs. However, the local authority should take into consideration cases or circumstances where the cost may need to be adjusted to ensure needs are met. In all cases the local authority must have regard to the actual cost of good quality care to ensure that the amount is one that reflects local market conditions. (Annexe A, paragraph 11 of the Care and Support Statutory Guidance)

What happened

17. The following is a summary of the key facts relevant to my consideration of the complaint. It does not include everything that happened.
18. Mrs Y cared for Mr Y who has dementia. In November 2021 Mrs Y spoke to the carer’s support team as she was struggling to care for Mr Y. A social worker contacted Mrs Y and carried out a carer’s assessment. This notes Mrs Y required a break from caring for Mr Y. Another social worker contacted Mrs Y to discuss what she required. The record of the call notes Mrs Y said she would try other options at home before considering respite care.
19. A social worker then visited Mr and Mrs Y at home in December 2021 to explore what support they needed. The records of the visit note Mr and Mrs Y asked for respite care and community support. The social worker recorded a plan of action which included consideration of a referral for a carers assessment for Mrs Y. The action plan also said the social worker would write up a conversation to conclude eligibility regarding the Care Act.
20. Mrs Y contacted the social worker in early January 2022 as Mr Y’s needs had increased and she was struggling to care for him. The Council’s note Mrs Y said she had chosen a care home for respite care for Mr Y. I shall call this care home A. The Council’s records also note the social worker outlined how care home places were funded in calls with Mrs Y.
21. The social worker concluded Mr Y had eligible needs under the Care Act 2014 for care and support. The Council has acknowledged it delayed in considering if Mr Y had eligible needs.
22. The Council’s records show the social worker and Mr X discussed respite care for Mr Y as Mrs Y wanted Mr Y to stay at care home A. The records note the social worker told Mr X that Mr Y was now eligible for support from the Council but it was unlikely it would pay the full fee.
23. In early February 2022, Mr Y entered care home A for a period of respite. The Council’s records show the social worker discussed funding for care home A with Mr X and explained a means tested contribution would be required towards the Council’s funding. The Council also sent financial assessment forms to Mr X in early March 2022 to enable the Council to determine Mr Y’s contribution to his fees. The Council also sent a copy of its leaflet regarding how funding for care homes places. The Council wrote to Mrs Y in March 2022 setting out Mr Y’s contribution, the Council’s contribution and the third party contribution for his fees at care home A.
24. The Council’s records note the social worker visited Mr and Mrs Y in May 2022. Mrs Y said she had chosen care home B for a further period of respite care for Mr Y. The Council’s records note the social worker advised Mrs Y that it was unlikely the Council would fund the full cost of the placement as there were other homes which could provide a place at the Council’s rate. The record of the visit notes Mrs Y declined a search for places at the Council’s rate. The record also notes the social worker told Mrs Y that she would request funding for respite at care home B. She also advised the Council would need to carry out a financial assessment and a contribution would need to be made. In response to my enquiries the Council said the social worker did not request funding for Mr Y.
25. Approximately a week later Mr Y moved to care home B for respite. Mrs Y did not contact the Council to further discuss funding or notify it that Mr Y had moved into the care home.
26. In July 2022, Mrs Y contacted the Council to ask for financial support for Mr Y’s placement. The record of the call notes Mrs Y said she did not contact the Council before the move. Mrs Y also said she would like Mr Y to continue to live at care home B. The Council agreed to request a financial assessment and a care needs assessment to determine if Mr Y required 24 hour care.
27. The Council carried out a care act assessment for Mr Y. In late July 2022, the Council agreed to fund Mr Y’s placement at a rate of £529.06 per week from the date of its decision. This is above Mr Y’s personal budget but is the rate the Council expects to pay for a dementia care home placement. As care home B’s fees are above this rate a third party would have to pay a top up fee. The Council recommended Mr Y’s family look for alternative care homes which offer places at the Council’s rate as the family could not pay the top up fee.
28. The Council’s records show it sent a copy of the care act assessment to Mrs Y in August 2022. A social worker provided details of other care homes with places available. Mrs Y considered the places but decided they were unsuitable. The Council’s records also note a social worker later identified six care homes with places for £529.06 per week. In February 2023, a social worker also notified Mr X of a care home with a place for £529.06 per week.
29. The Council carried out a financial assessment for Mr Y’s stay at the care home for respite. It wrote to Mr and Mrs Y and notified them that their weekly charge for respite from 27 July 2022 would be £427.49 per week. Mrs Y asked the Council to adjust the charge to reflect she was still living in their home and was dependant on Mr Y’s income. The Council reassessed the charge to take into account these factors.
30. The Council then wrote to Mrs Y setting out Mr Y’s weekly contribution of £286.93 and third party contribution of £420.94. In May 2022, the Council notified Mrs Y of Mr Y’s assessed contribution from 5 April 2023. This stated Mr Y’s contribution was £307.02 per week. It then sent a further letter to Mrs Y setting out the third party contribution and assessed contribution form 10 April 2023. This stated Mr Y’s assessed contribution was £279.19 per week.

Complaint

31. Mr X complained to the Council about a number of matters. These included:

• that the Council had failed to provide sufficient information to enable Mrs Y to enable her to understand that an assessed charge as well as a top up fee was payable.
• that the Council would not backdate its payments to May 2022 when Mr Y entered care home B;
• that Mr Y’s personal budget did not allow Mrs Y to remain in the couple’s home.
• that the Council had not made a suitable adjustment to Mr Y’s personal budget to allow the family to source alternative good quality care for him. Many of the alternative care homes suggested by the Council were rated by CQC as requiring improvement.
• Mr X also said a move to another care home would be detrimental to Mr Y.

32. The Council said the social worker had explained the funding arrangements for care homes, including top up fees. But the Council had not sent written information. It also acknowledged that it had not provided a copy of Mr Y’s assessments from November 2021 to the family. The Council did not uphold Mr X’s other complaints. It said it considered Mr X could be moved to another care home without detriment. The Council offered a payment of £500 to Mrs Y for the time invested in seeking a resolution to her concerns about Mr Y’s placement.

Analysis

Failure to provide sufficient information or information in writing to enable Mrs Y to make an informed choice on Mr Y’s care home placement.

33. Mr Y’s social worker outlined how care home places were funded during conversations with Mrs Y before she placed Mr Y at care home B for respite. The records do not show the social worker clearly explained that both an assessed contribution and third party contribution/top up fee would be payable. The social worker also did not provide any information about funding in writing. This was clearly a stressful time for Mrs Y so it would have been appropriate for the social worker to confirm the conversation in writing. I therefore do not consider the social worker’s explanations of the possible funding implications were sufficiently clear. This is fault.
34. But, on balance, I cannot conclude this fault prevented Mrs Y from making an informed decision when placing Mr Y at care home B. The evidence shows the Council sent a copy of its leaflet on care home charges to Mr X when arranging to financially assess Mr Y for his stay at care home A. The leaflet explains everyone has to make a contribution to their care. The Council also notified Mrs Y of the assessed charge and third party contribution when Mr Y was placed at care home A. I note Mr X’s position that these charges were confusing and subsequently changed. But the notifications clearly showed that both an assessed contribution and third party contribution could be charged. The Council’s records also show the social worker explained to Mr X that a contribution would be required towards the Council’s contribution at care home A in addition to the top up fee and this would be means tested. So, on balance, I am satisfied Mrs Y and her family were on notice that Mr Y would have to pay a contribution and that possibly a third party contribution would be due.
35. The social worker did not request funding as she had undertaken to do when discussing possible respite care for Mr Y at care home B. This is fault. But I do not consider it prevented Mrs Y from making an informed decision. This is because she placed Mr Y in care home B without further reference to the Council. So, the Council could not provide more detailed information about the specific costs of care home B and contributions required.
36. On balance, I consider the Council would have agreed to contribute to the costs of Mr Y’s care home place if the social worker had requested funding in May 2022. I therefore consider the Council should backdate its contributions to Mr Y’s care fees to May 2022. The failure to make the request for funding will also have caused distress to Mrs Y.

Continued to fail to provide clear information on the funding for Mr Y’s care home place.

37. The Council sent letters to Mrs Y notifying her of Mr Y’s assessed contribution. It also sent letters setting out the Council’s contribution, Mr Y’s assessed contribution and the third party contribution fee which showed how Mr Y’s care home place was funded. I am therefore satisfied the Council provided sufficiently clear information on the funding for Mr Y’s care home place.
38. However, I note the letters sent to Mrs Y in May 2023 setting out the contributions from April 2023 state different amounts for the assessed contribution. The Council should therefore clarify these amounts and notify Mrs Y accordingly.

Refused to increase the Council’s contribution to allow Mrs Y and her family to source care at a care home rated good by the CQC.

39. Mr X considers the Council should increase Mr Y’s personal budget over what the Council would usually pay to allow them to source a good rated care home in accordance with the care and support statutory guidance.
40. On balance, I do not consider the Council to be at fault for not increasing Mr Y’s personal budget to allow his family to source a place at a care home rated good. The statutory guidance provides the Council should have regard to the cost of good quality care, not that a care home has to be rated good by the CQC. The Council has to be able to provide care home places within its budget which can meet a person’s needs. The Council has identified care homes which it considers can meet Mr Y’s needs within his personal budget of £529.06 per week.
41. The Council also considers that it would not be detrimental to Mr Y for him to move care homes. I appreciate Mr X and Mrs Y disagree with this decision. We can only question a decision if there is some fault in how the decision was reached. The social worker assessed Mr Y’s needs in July 2022 and had a number of contacts with him so she was in a position to make a judgement on whether Mr Y could be moved. The Council also considered Mr Y’s doctor’s opinion when dealing with Mr X’s complaint and explained why this did not change its position. So, there is no evidence of fault in how the Council reached its decision. I therefore do not have grounds to question the Council’s decision that it would not be detrimental to Mr X to move care homes.

Did not make allowances in Mr Y’s financial assessment to allow Mrs Y to live in the couple’s home.

42. The Council’s letters notifying Mrs Y of Mr Y’s assessed charge show it has only included Mr Y’s share of Mr and Mrs Y’s joint income in the financial assessment. Correspondence between Mr X and the Council in October 2022 show the Council made some allowance for the household bills such as council tax. So I am satisfied the Council has considered Mrs Y’s needs when carrying out the financial assessment.

Failed to carry out a care act assessment for Mr Y and carers assessment for Mrs Y in late 2021.

43. The Council carried out a carer’s assessment for Mrs Y in November 2021. But the Council’s action plan following the conversation with Mr and Mrs Y in early December 2021 also notes it would consider a referral for a further carers assessment for Mrs Y. There is no record to show the social worker completed this action and notified Mrs Y accordingly. The Council carried out a Care Act assessment for Mr Y in January 2022 to establish his eligible needs. But the Council has acknowledged it delayed in doing so which will have caused some uncertainty to Mr and Mrs Y.
44. The Council has offered a payment of £500 for Mrs Y’s time and trouble in seeking a resolution for Mr Y’s care home place. I do not consider it is proportionate to seek a further financial remedy for the uncertainty caused to Mr and Mrs Y by its failure to notify her of its decision on whether it would refer her for a further carer’s assessment in December 2021 and the delay in considering if Mr Y had eligible needs under the Care Act. Similarly, I also do not consider it is proportionate to recommend a financial remedy for the distress caused by failing to request funding for Mr Y’s respite care in May 2022.

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Agreed action

45. That the Council will:
1. send a written apology to Mrs Y for uncertainty caused by the delay in assessing if Mr Y had eligible needs under the Care Act and for the distress caused by failing to request funding for Mr Y’s respite care in May 2022 as it had undertaken to do. The Council should also apologise for the uncertainty caused by not notifying Mrs Y of its decision on whether to refer her for a further carer’s assessment. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
2. backdate the Council’s assistance with the fees for Mr Y’s care home placement to the start of his placement at care home B in May 2022.
3. review Mr Y’s assessed contribution from April 2023 and notify Mrs Y of the correct assessed contribution.
4. review its record keeping procedures to ensure officers record all key decisions relating to a person’s care needs, such as whether a person has eligible needs under the Care Act 2014 and notify the client of the decision.
5. by training or other means remind officers to provide key information about care home funding in writing following conversations with clients regarding funding arrangements. This is to ensure understanding of the key issues discussed and potential financial implications.
46. The Council should take the action at a), b) and c) within one month and the action at d) and e) within two months of my final decision. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. Fault causing injustice to Mrs Y.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman