Summary: Mrs F complained the Council breached her mother, Mrs B’s human rights by placing her in a care home against her wishes and charging her incorrectly. We found delay in seeking a home care provider which caused uncertainty. The Council has agreed to make a symbolic payment to Mrs B to remedy this injustice. We found no fault in the rest of the complaint. There is no evidence the Council has not had due regard to Mrs B’s human rights.

The complaint

1. Mrs F complains on behalf of her mother, Mrs B, about the Council’s decision to place her in a care home and its failure to source a home care package so that Mrs B could return home. She also complains about the financial assessment and says the Council has not charged her mother appropriately.
2. Mrs F says the Council has breached her mother’s human rights by keeping her in care when she wishes to come home and the law and its own polices by charging for care against her wishes. She says this has caused significant distress to Mrs B and the family and has had a negative impact on her physical health and mental wellbeing.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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(1), as amended)

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How I considered this complaint

6. I spoke to Mrs F about her complaint and considered the information she sent, relevant law and guidance and the Council’s response to my enquiries.
7. Mrs F 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

Relevant law and guidance

Care and support

8. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan. Care and support plans should be regularly reviewed.

Charging for care and support

9. Where a council arranges care and support to meet a person’s needs, it may charge the adult for the cost of the care. When charging, councils must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care and Support statutory guidance. (Care Act 2014, section 14 and 17)
10. Councils assess the means of people who have less than the upper capital limit (£23,250) to decide how much they can contribute towards the cost of their care. In assessing what a person can afford to pay, a council must take into account their income, such as pensions or benefits.
11. People in a care home will contribute most of their income, excluding their earnings, towards the cost of their care and support. However, councils must leave the person with a specified amount of their own income to spend on personal items such as clothes and other items that are not part of their care. This is known as the personal expenses allowance (PEA) and is set by the Government. The PEA for 2025/26 is £30.65 per week.
12. The Care and Support statutory guidance (paragraph 8.34) says where a person is a short-term or temporary resident of a care home, councils have some discretion about how they charge.
13. A short-term resident is someone provided with accommodation in a care home for a period not exceeding 8 weeks, for example where a person is placed in a care home to provide respite care. Where a person is a short-term resident, councils may choose to charge them based on the rules for home care. Councils should therefore have a policy on how they wish to charge short-term residents.
14. A temporary resident is someone whose stay in a care home is unlikely to exceed 52 weeks. Because a temporary resident is expected to return home, their main or only home is usually disregarded in the assessment of whether and what they can afford to pay. In addition, certain housing-related costs are also disregarded in the financial assessment.
15. Northumberland County Council’s adult social care charging policy says charges for time-limited stays in a care home will be made “in accordance with the provisions in the Regulations for charging for residential care.” It does not differentiate between short-term and temporary residents. The Council’s information sheet for charging for a short stay in a care home says the Council will calculate the person’s weekly income and subtract housing expenses plus the PEA. Any income remaining will be the person’s contribution to their care costs.
16. For long-term residential care (expected to be longer than 12 months), the Council will leave the person with the PEA plus any mobility element of Disability Living Allowance or Personal Independence Payment they receive. The charging regulations say that 50% of a person’s occupational pension can be transferred to the person’s spouse before their income is calculated if at least 50% of their occupational pension is being paid to their spouse for their maintenance. (Care and Support (Charging and Assessment of Resources) Regulations 2014 Schedule 1, paragraph 16)

Mental capacity

17. The law says a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. Any act done for, or any decision made on behalf of, a person who lacks capacity must be in that person’s best interests. The Mental Capacity Act 2005 sets out the steps that decision makers must follow to determine what is in a person’s best interests.

Human Rights Act 1998

18. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to liberty and respect for private and family life. The Act requires all local authorities to respect and protect individuals’ rights.
19. The Ombudsman cannot decide if a council has breached the Human Rights Act – this can only be done by the courts. But we can consider whether a council has had due regard to an individual’s human rights in their treatment of them. Councils will usually be compliant with the Human Rights Act if they consider the impact their decisions will have on the person and there is a process for decisions to be challenged by way of review or appeal.

What happened

20. I have set out the key events; this is not meant to detail everything that happened.
21. Mrs B was living at home with her husband. She has health conditions which mean she has care and support needs. The Council had put in place a care package of four visits a day. A financial assessment in October 2023 determined Mrs B’s contribution to this was £35.56 per week.
22. Mrs B and her family had concerns about the home care provider and in July 2024 they asked to move to a different one. An occupational therapist assessed Mrs B in August and decided she required two carers due to problems with her mobility. The existing care provider did not have capacity to provide double up care. The Council advised it would be safer for Mrs B to go into residential respite (short stay) care whilst a new home care provider was sourced. The family were concerned about the cost of this but Mrs B agreed. She went into Home X on 8 August.
23. The Council found a new home care provider (“the Agency”) and Mrs B returned home on 22 August. The updated care and support plan of 28 August says the financial contribution was £35.56 per week. The charge for the respite care was £213.64 per week (£30.52 per night).
24. Mrs B’s family contacted the Council with concerns about the Agency. They said medication had been missed or not given on time and that the carers were using a hoist unnecessarily.
25. An occupational therapy assessment on 4 September said Mrs B required to be hoisted for all transfers.
26. The Agency told the Council Mrs B’s family had sometimes prevented them from providing care. The Council advised Mrs B that family should not be present during care visits to prevent a breakdown of the care package.
27. On 12 September, the Agency gave 48 hours’ notice due to family preventing the hoist being used the previous day. The social worker spoke to Mrs B who agreed to a respite option being explored as another home care agency could not be found straight away. Mrs B asked how much this would be; the Council’s case note says Mrs B “was advised of charges”. That evening the hoist collapsed and the Agency withdrew immediately from the care package. Mrs B moved into Home Y the next day for a short stay.
28. The social worker visited Mrs B in Home Y on 17 September. Mrs B said she wished to go home; the social worker said a risk management meeting would be needed prior to that to discuss how to prevent a breakdown of the home care package. A home care agency was contacted but had no capacity. Mrs B asked to move to Home X in the meantime but it had no availability.
29. The social worker was then out of the office. When she re-visited Mrs B on 16 October, Mrs B again asked to go home. There is no evidence that a home care package was sought or a risk management meeting arranged until November. Mrs B moved to Home Z on 31 October.
30. The Council assessed Mrs B’s finances on 12 November. This found that her contribution to a short stay was £229.32 per week. A relative contacted the Council concerned that the assessment was wrong as it had treated all of Mrs B’s occupational pension as income and the eight weeks respite had come to an end so she should not be being charged as a short stay. The Council replied it had agreed to extend the short stay period. It had calculated the charge for this by subtracting the PEA and household expenses from all of Mrs B’s income, in line with its policy.
31. A home care provider was found on 14 November and a meeting arranged with Mrs B at Home Z on 19 November to discuss the care plan for returning home. Mrs B’s nighttime needs were discussed, the Council said these could not be met in the community. The Council’s case notes say that at the meeting Mrs B said that, whilst wishing she could return home, given her care needs she felt she should stay in Home Z. The Council considered Mrs B showed a good understanding of her care and support needs and had no doubts about her capacity to decide to remain in residential care. The care and support plan of 22 November said Mrs B would therefore be living in Home Z as a permanent resident.

The complaint

32. Mrs B’s daughter, Mrs F, complained to the Council on 16 January 2025 that it had not been trying to find a home care package, had not properly determined that Mrs B required residential care, and the financial assessment and charges were wrong.
33. The Council replied on 31 January. It noted that Mrs B had agreed to remain in residential care in November. It had asked a social worker to review Mrs B’s care and support needs and to assess her mental capacity to make a decision about where she should live.
34. The Council said it would charge Mrs B at the home care rate (£35.56 per week) for her stay in residential care until 19 November. This was because she had been in respite whilst waiting for a home care provider to be found. From 20 November the Council would charge Mrs B at the short stay rate whilst it was reviewing her care and support needs and assessing her mental capacity. Mrs B could discuss with the social worker if she wished to return home.
35. In further replies to Mrs F, the Council said Mrs B had overnight care needs and there was no evidence she had been told she could not return home. It accepted that there had been a delay in seeking a home care provider between September and November 2024. The Council was reviewing the financial assessment and asked Mrs F to submit information. Mrs F came to the Ombudsman.
36. The care and support and capacity assessments were completed by April 2025. These found that Mrs B had capacity to decide on her care and support needs. She would like to return home however she did not feel up to it and therefore agreed to remain in Home Z. There was discussion with the family about the care and support assessment. On 17 June 2025 the Council visited Mrs B to go through the care plan; she agreed to remain in Home Z. The Council says it will therefore charge Mrs B as a long-term resident from then.

My findings

37. The Council has already accepted that there was some delay in seeking a new home care provider after Mrs B requested to go home on 17 September 2024. This was partly due to needing to have a risk management meeting prior to putting a new home care package in place. However, my view is this should have been arranged sooner.
38. Once a care provider was found and the meeting was held on 19 November, it was noted that Mrs B’s nighttime needs could not be met in the community and Mrs B agreed to stay in Home Y. This may also have been the outcome of any earlier meeting. However, I find that the delay causes uncertainty to Mrs B and her family as they will never know whether Mrs B could have returned home if the meeting had been held sooner. This is an injustice.
39. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Our guidance on remedies says that to remedy uncertainty caused by fault a moderate, symbolic payment is appropriate.
40. Mrs F says the Council has placed Mrs B in residential care against her wishes.
41. It is not the Ombudsman's role to decide what, if any, care and support a person needs. That is the council's role. Our role is to consider if the council has followed the correct process for establishing a person's needs and if it acted correctly when this process was complete. In doing so we look at what information the council considered, and if it took account of the service user’s and carer’s wishes. If a council considers all this information properly the Ombudsman cannot find a council at fault just because a service user disagrees with its decision, or outcome of an assessment.
42. I have considered the care and support assessments carried out in November 2024 and spring 2025. The social worker visited Mrs B several times and had advice from district nurses and occupational therapists. The assessments describe Mrs B's needs. The Council has considered and recorded Mrs B’s views and discussed the assessments with her family. There is no evidence of fault in the way the assessments were carried out. I therefore cannot criticise the outcome that Mrs B required residential care.
43. The assessments show that Mrs B wanted to be able to go home but had agreed to stay in residential care due to her care needs. There were no doubts about her capacity to make that decision in November 2024 and the capacity assessment of March 2025 found she had capacity. I therefore do not find that Mrs B is in residential care against her wishes or fault in the way the Council has determined that she needs residential care.
44. There is no evidence the Council has not had due regard to Mrs B’s human rights. It discussed the impact of being in residential care with Mrs B and took action (albeit delayed) when she asked to return home in September 2024. If Mrs F believes the Council has breached the Human Rights Act 1998, she would need to seek legal advice as only the courts can determine this.
45. The Council charged Mrs B’s short stay from August to November 2024 as home care. This was because she was in respite whilst waiting for a home care provider to be arranged. There is no fault in these charges,
46. I have reviewed the financial assessment of November 2024. The Council has applied its short stay charging policy of deducting the PEA and household expenses from Mrs B’s income. In response to my draft decision, the Council said it had not transferred 50% of Mrs B’s occupational pension to her husband as he received his own occupational pension and there was no evidence that at least half of her pension was being paid for his maintenance. This is in line with the charging regulations. Whilst Mrs B had been deemed to be in long-term care from 20 November, the Council agreed to charge her as short stay as it was reviewing her care needs and carrying out a capacity assessment. This is a decision it was entitled to make. I find no fault in the way the Council has calculated Mrs B’s charges from 20 November 2024.

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Action

47. Within a month of my final decision, the Council has agreed to pay Mrs B £200 to remedy the uncertainty caused by the delay in seeking a home care provider in September 2024.
48. The Council should provide us with evidence it has complied with the above action.

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Decision

49. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman