Summary: The Council acknowledged delay in allocating Mr Y a named social worker. It also failed to correctly fund Mr Y’s residential respite stay and during the period of the 12-week disregard.

The complaint

1. Mrs X complains the Council delayed carrying out a social care assessment and a financial assessment of Mr Y. She says but for the delay, Mr Y would have been eligible for funding from the start of his respite care placement.

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. 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

4. I have:

• considered the complaint and discussed it with Mrs X;
• considered correspondence between Mrs X and the Council, including the Council’s response to the complaint;
• made enquiries of the Council and considered the responses;
• considered relevant legislation;
• offered Mrs X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

Back to top

What I found

Relevant legislation

5. The Care Act 2014 (the Act) is the legislation that sets out local authorities’ powers and duties in respect of adult social care services.
6. Sections 9 and 10 of the Act 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.
7. If it is found a person needs residential care, councils have a duty to arrange for this care.
8. The law says a council may charge for care and support it has arranged to meet a person’s needs. Where it decides to charge, a council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 (the Regulations) and have regard to the Government guidance (Care and Support Statutory Guidance (CSSG)).
9. Once a council decides a person has eligible care and support needs, the law says it must carry out a financial assessment to see what contribution the person may have to pay towards the cost of their care.
10. The Care Act 2014 places councils under a duty to carry out financial assessments where they think they would charge a person for care and support to meet their eligible needs.
11. Under section 19(3), councils can meet needs that appear to be urgent without having completed a needs assessment or financial assessment.
12. Where a council is meeting needs by arranging a care home, it must ensure a person has a genuine choice of accommodation. The council should give the person clear and balanced information to make the best choice. It must ensure there is at least one accommodation option available that is affordable and within a person’s personal budget. If no accommodation is available within the personal budget the council must arrange care in a more expensive setting and adjust the budget to ensure that needs are met. In such circumstances, the council must not ask for the payment of a ‘top-up’ fee.
13. A person can choose accommodation that is more expensive than the amount set in the personal budget, if a third party is willing to pay the additional cost - a top up fee. But if a person is placed in more expensive accommodation solely because the council has failed to arrange accommodation at the anticipated cost, then a top-up fee will not be payable.
14. Property is not included in financial assessments when a stay in residential care is temporary. However, local authorities must disregard the person’s property for the first 12 weeks after the stay becomes permanent.
15. A person needing residential care can enter into a “deferred payment agreement” with a council. This lets a person use the value of their home to help pay care home costs. The council does not write the deferred payment off. It is repaid later, usually from the proceeds of the person’s house sale.

Background

16. This statement is not an exhaustive description of all the events that have occurred in relation to this complaint, but an outline of the key issues as a background to the investigation’s findings.
17. Mr Y is in his seventies. He has a diagnosis of dementia. Prior the events complained about he received a direct payment from the Council to purchase home care support.
18. In December 2022, Mr Y’s family contacted social services to request support with finding respite care placement for Mr Y.
19. A duty social worker visited Mr Y at home on 29 December 2022 and completed a needs assessment. This concluded Mr Y needed residential respite care. The Council attempted to source numerous care home placements but were unsuccessful. It says at that time, places were in high demand. One potential placement was found, and the family were informed. They went to view the care home the same day. The family arrived before the Council notified the care home, and the care home unaware of the situation. After the family explained, the care home concluded they could not meet Mr Y’s needs.
20. The records show a duty social worker offered interim measures to support Mr Y at home until a suitable placement could be found. The family refused, saying Mr Y needed immediate 24-hour care. Mrs X says the duty social worker said the Council would continue to seek suitable placements and support the family in finding a placement. Mrs X says the family contacted and visited numerous care homes and were advised that either there was no place available, or that Mr Y’s needs could not be met.
21. The Council continued to seek suitable placements and Mr Y was placed on the waiting list of a care home that had a vacancy pending.
22. Mr Y’s family were told he would be allocated a named social worker. This did not happen until May 2023.
23. The records show a duty social worker telephoned Mr Y’s family on 30 December 2022 to explain one of the care homes pending charged fees above the Council’s usual rates, and that a third-party top-fee would need to be paid. The family agreed to this.
24. In January 2023, one of the care home’s the family previously visited contacted them to say a place had become available. The care home advised the family Mr Y needed an elderly mentally infirm (EMI) placement, and that they should request an NHS continuing healthcare assessment (CHC). CHC is a package of care for people who are assessed as having a 'primary health need'. The family contacted the Council on 5 January 2023, to inform it of the available place, and request a referral for a CHC assessment. The Council made the referral, and an NHS CHC screening of Mr Y was completed on 9 January 2023.
25. The records show an officer from the Council contacted a member of Mr Y’s family on 18 January 2023 to discuss the documentation needed to complete a financial assessment. The officer provided an email address to which Mr Y’s bank statements could be sent.
26. Mr Y moved into the care home on 29 January 2023.
27. An internal email between officers in January 2023 records a ‘best interest decision’ was needed in relation to Mr Y’s residential care placement.
28. Mrs X says care home fees were not initially paid because the Council delayed in completing a financial assessment.
29. Mr Y’s family contacted the Council on 1 February 2023 asking for information about deferred payments. A deferred payment scheme allows a person to delay making some, or all their payments to a council for the care they receive. An officer from the Council’s finance team spoke to a family member on 2 February 2023 and explained the scheme.
30. A financial assessment for Mr Y’s respite stay was completed on 2 February 2023 in respect of Mr Y’s respite stay. The records show a telephone conversation between a council officer and a member of Mr Y’s family during which the officer explained that whilst the deferred payment application was being processed, the Council would fund Mr Y’s placement at its usual fee rate. Once the application was agreed, it would then fund at the self-funding rate. Following the telephone discussion, the officer sent an email reiterating the information.
31. Mr Y’s family received a copy of the assessment on 7 February 2023. The family understood the Council would be contributing more to the placement than that stated on the completed assessment form. The Council says it has no records to confirm a discussion about the level of contribution Mrs X referred to. It says Mr Y was assessed in line with its charging policy for respite care placements.
32. The family decided the placement would be permanent on 12 February 2023 and informed the Council and asked for a revised financial assessment of Mr Y.
33. In early April 2023 Mr Y’s family received an invoice from the care home for £17,000 and sought advice on the deferred payment arrangements. Mrs X says the family understood that Mr Y would be required to contribute to his care, including using the equity in his property.
34. Mrs X says the family were told a financial assessment could not be completed until the allocation of a named social worker, who would then send relevant documentation to the Council’s financial assessment team. Mrs X says the family contacted the Council on numerus occasions chasing the allocation of a named social worker and to confirm and complete the financial arrangements for Mr Y’s placement. She says the uncertainty caused stress and worry.
35. The Council allocated Mr Y a named social worker on 4 May 2023. The social worker, along with a colleague visited Mr Y in his care home on 11 May 2023. His family were present. A needs assessment was completed, along with a mental capacity assessment (MCA). Following a best interest decision, the Council agreed Mr Y required a permanent placement.
36. Mr Y’s family believed the Council should backdate the start of the contract to 12 February 2023, when the placement had become permanent, saying, but for the delay in allocating a named social worker, the placement would have been made permanent sooner. The Council agreed and confirmed Mr Y’s need for residential care retrospectively.
37. An officer from the Council contacted Mr Y’s family in May 2023 to explain the financial arrangements and confirm the placement cost to be above the Council’s usual rate, and because of this, a third-party top-up would be required. The officer said, if this was not possible, Mr Y may have to move to a cheaper care home.
38. Mr Y’s family asked the Council if it would meet the full cost of the placement as there was no other suitable placement available.
39. The Council refused saying Mr Y’s family had entered into a private agreement with the care home. It agreed to fund 12-weeks at its usual rate and said the fee above this would need to be met via a third-party top-up.
40. The family asked the Council to add the third-party top-fee to the deferred payment agreement. The Council refused, saying until the application had been processed it would only fund the placement at its usual rate. Once an agreement was in place it would fund the full cost of the placement.
41. The Council acknowledges a delay in allocating a social worker. It says as Mr Y was in a place of safety it did not consider the referral urgent. However, it acknowledged it did not meet its usual target of allocating a social worker within 12-weeks. It was 14-weeks before Mr Y was allocated a social worker. In acknowledge the delay and the family’s frustration the Council offered a payment of £150.
42. Mrs X believes the Council should backdate funding in full because there were no other suitable placements available at the time Mr Y needed accommodation. She says the Council has now confirmed it is not in Mr Y’s best interest to move him to a different care home.

Analysis

43. I am satisfied the Council responded appropriately to the family’s request for support in December 2022. A duty social worker was allocated promptly.
44. I find no fault in the Council’s response in its attempts to source a care home for Mr Y. It contacted numerous care homes in its search of a suitable placement. Placements were in high demand, and it was not at fault for the lack of availability. It offered additional support at home until a placement could be found. There is no fault by the Council here.
45. The Council was aware Mr Y’s family were also attempting to source suitable placements. It was unfair to say the family commissioned a private placement. The family did so on the understanding the Council had agreed to commission and fund a respite care stay.
46. Mr Y’s family informed the Council a placement had been found before Mr Y went into the care home. There was no good reason why the Council did not commission the placement.
47. Given the lack of any other suitable placement the Council should have funded the full cost of the respite stay. Whilst the family did initially agree to fund a third-party top-up, the circumstances were such that a top-up was not required. The Council is at fault here.
48. The Council acknowledges it did not follow its usual process of allocating a social worker within its usual timescale of 12 weeks. Whilst it is correct, that Mr Y was in a place of safety and therefore not a priority, the delay did impact on the completion of a financial assessment which caused confusion and uncertainty for the family.
49. When Mr Y’s placement became permanent, the Council limited its contribution to its usual rate during the 12-week disregard period. It should not have done so. It was aware there was no other suitable placement available at the time Mr Y was accommodated. Once Mr Y had settled in the care home, it did not consider the risk to his wellbeing of moving him to a cheaper placement. I note a later risk assessment concluded it would not be in Mr Y’s best interests to move him to a different care home and he remains in his initial placement.
50. Whilst there was no fault in the Council’s decision not to include the third-party top-up in the deferred payment agreement, a top-up fee should not have been required.

Back to top

Agreed action

51. The Council should, within four weeks of the final decision:

• apologise to the family for the failings set out above: refund the total amount of third-party top-fee paid for Mr Y’s respite care stay and during the 12-week disregard period;
• follow through with its offer of a remedy payment in acknowledgement of the delay in allocating Mr Y a named social worker;
• provide us with evidence it has complied with the above actions.

Back to top

Final decision

52. The Council acknowledged delay in allocating Mr Y a named social worker. It also failed to correctly fund Mr Y’s residential respite stay and the period of a 12-week property disregard.
53. The above recommendations are a suitable way to settle the complaint.
54. It is on this basis; the complaint will be closed.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman