Summary: Mr C complained that the Council failed to properly communicate with him about funding for his aunt’s (Mrs D’s) care home fees. This caused him distress and uncertainty about whether she would have to move and how much it would cost. We found the Council delayed in reaching a clear decision on Mrs D’s case and failed to communicate adequately with Mr C. The Council has agreed to apologise to Mr C, pay him £300 and improve its procedures for the future.

The complaint

1. Mr C complained that Kent County Council failed to properly communicate with him about the funding of his aunt, Mrs D’s care home fees. This created stressful uncertainty about whether she would be able to stay at the home and how much it would cost.

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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 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)
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 complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr C 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

Charging for permanent residential care

5. 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.
6. When a 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.
7. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment (currently £23250). 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. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

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. 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’. But a top-up payment must always be optional and never the result of commissioning failures leading to a lack of choice.

What happened

11. Mr C has lasting power of attorney for his aunt Mrs D. This means he can make decisions on her behalf because she is not able to do so. Mrs D had been in a care home (the Home) since late 2021. At that point her savings were above the upper threshold. The Council informed Mr C that Mrs D would have to pay for her care until her savings dropped below the upper threshold, at which point Mr C should contact the Council again. The Council also said she could move to a cheaper care home if she wished.
12. In October 2022 Mr C contacted the Council to say his aunt’s savings were depleting and would soon drop below the threshold. The Council advised him to contact it again four to six weeks before the threshold would be reached.
13. Mr C went back to the Council in early January 2023. The case records say the Council explained the funding and assessment process to him during a telephone call and sent him a charging letter confirming the information. Mr C chased the Council in February and March 2023, saying he was worried that Mrs D would have to move to another home. The Council told him Mrs D was on the waiting list for an assessment.
14. On 13 March 2023 the case was allocated to a social worker (SW). They arranged to visit Mrs C at the Home on 21 March 2023 to complete a care needs assessment. They concluded Mrs D needed 24-hour care in a residential placement. On 22 March 2023 SW discussed the possibility of a third-party top-up with Mr C. He said there were no family funds for a third-party top-up and it would be detrimental to Mrs D’s health and well-being to have to move to a different care home. SW sent him a charging letter and referred the case for a financial assessment. Mr C also asked for a list of alternative care homes.
15. On 14 April 2023 the Council completed the first financial assessment. As Mrs D’s capital was still above the upper threshold it noted she was still self-funding but would be eligible for Council support from 26 June 2023. SW emailed Mr C on 27 April 2023 confirming the outcome and saying they would get back to Mr C a few weeks before 26 June 2023.
16. On 9 May 2023, the Council’s funding panel approved a funding request from SW for long term residential care at the Home for Mrs D. The notes of the decision-making said:

“Authorized as requested. A conversation was held around potentially moving due to costings which was concluded as already had with family.”

17. Mr C chased SW on 7 June 2023 saying time was running out. SW emailed Mr C on 12 June 2023 to say the panel had approved funding but did not say any more about the decision, what had been approved or where Mrs D would live. SW apologised for the time it had taken. SW said the finance team should have contacted him and the county placement team would also contact him about ‘availability’.
18. Mr C telephoned the Council to complain about the poor communication and the lack of clarity about whether the Council had agreed to fund Mrs D’s placement at the Home or whether she would have to move. On 13 June 2023 he told the Council Mrs D’s money had dropped below the £23250 threshold and he chased again on 15 and 16 June 2023. He was very stressed about the plans for Mrs D and said he was at risk of losing his job if he didn’t return to work soon.
19. On 19 and 20 June 2023 the finance team said to Mr C that it was waiting for the adult social care team or the county placement team to add the placement to the Council’s system before it could confirm the financial arrangements. The finance team also told him the likely amount of Mrs D’s contribution. Mr C asked for confirmation about where Mrs D would live and whether she would have to move.
20. On 21 June 2023 he made a formal complaint about the poor communication and lack of information.
21. On 27 June 2023 the county placements team contacted him to explain what was happening. They had contacted the Home to get the cost of a placement for Mrs D. Once they had this cost, they would need to seek approval from the Team Manager for Mrs D to remain at the Home. If it was approved, then Mrs D would stay at the Home with no further top-up from the family. If it was not approved the family would have to pay the difference between the Council’s standard rate and the full cost or find a different home.
22. On 29 June 2023 the county placements team received details of the cost from the Home and sent a request to SW to put the case back to the panel to make a decision on whether it would be detrimental to Mrs D to require her to move to a cheaper placement. It sent the document to the wrong SW. This was sent to the correct worker on 5 July 2023 and to the funding panel on 6 July 2023.
23. On 5 July 2023 Mr C said he had found a new job where it would be easier to make and receive calls from the Council during the working day.
24. On 7 July 2023 the finance team sent Mr C an updated financial assessment following new financial information.
25. On 11 July 2023 the Council sent a complaint response to Mr C. It said SW had informed Mr C in March 2023 that Mrs D may have to move out of the Home to a cheaper placement once the Council started funding the care. The Council said SW should then have explained the option of paying for a third party top-up so that Mrs D could remain at the Home. They should also have explained that if moving from the Home was considered detrimental to Mrs D’s wellbeing SW would complete a risk assessment and a detrimental to move request to the funding panel, asking for authorisation for Mrs D to remain at the Home.
26. The Council apologised that the detrimental to move request was sent to the wrong social worker causing a short delay. It said the request was being considered by the Panel on 11 July 2023 and SW would also explore with Mr C the option of Mrs D moving to a home nearer to where her family live.
27. On 13 July 2023 the funding panel approved the request for Mrs D to stay at the Home despite the high cost because it would be detrimental to her to move. The notes indicate it was approved again on 25 July 2023. The financial assessment was updated in September 2023 after Mr C provided further information and the funding backdated to 22 June 2023.
28. Mr C complained to us in July 2023.

Analysis

29. Mr C contacted the Council in good time requesting Council support towards Mrs D’s care home fees. The Council allocated the case to a social worker in just over two months and concluded by 22 March 2023 that Mrs D required a long-term care home placement. SW referred the case to the financial assessment team who concluded Council funding would start form 26 June 2023. SW also referred the case to the funding panel to approve the long-term placement. I do not find fault here.
30. However, the process then appears to have broken down at this point and communication with Mr C was poor. The Council failed to answer Mr C’s fundamental question which he had first asked on 1 March 2023: will Mrs D have to move to another care home when the Council takes over the funding? This was the main concern for Mr C as he would have to find her another placement and help her move, which would cause significant distress.
31. The Council identified in its complaint response that SW had not advised Mr C properly on the options available to Mrs D or the process that needed to be followed if she wished to stay at the Home. I agree this was fault which caused Mr C worry and distress.
32. The decision of the funding panel on 9 May 2023 was also unclear. It appeared to approve funding of the placement at the Home and mentioned a possible move but did not clarify if this was necessary. This fault was exacerbated by the delay of over a month in SW communicating this decision to Mr C and failing to explain what the approval meant. This caused Mr C distress and frustration as he continually chased the Council for answers which did not materialise.
33. As 26 June 2023 approached Mr C was chasing the Council daily for a clear answer as to what would happen to Mrs D. The Council only explained the proper process to Mr C on 27 June 2023, obtained the cost of the placement on 29 June 2023 and sent the detrimental to move request to the funding panel for a second time on 5 July 2023. The Council failed to explain why the case was being put to the funding panel for a second and possibly third time (13 and 25 July 2023) and failed to explain why it did not take these actions in May 2023 to finalise the funding and placement questions, well before Mrs D’s savings fell below the threshold. This was fault which caused Mr C significant distress and worry. It also affected his employment and caused him to seek a new job where he could take calls from the Council more easily.
34. I accept that Mrs D was not affected by these issues as her care remained constant, but I consider the delay in deciding and confirming the arrangements with Mr C was unnecessary and prolonged.

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Agreed action

35. In recognition of the injustice caused to Mr C between May and July 2023, I recommended the Council:
• within one month of the date of my final decision, apologises to Mr C and pays him £300, and
• within three months, reviews its assessment and funding procedures to ensure there are clear timescales for funding decisions to be made and communicated to service-users and their families.
36. The Council has agreed to my recommendations and should provide us with evidence it has complied with the above actions.

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Final decision

37. I consider this is a proportionate way of putting right the injustice caused to Mr C and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman