Summary: The Council gave incorrect advice to Mrs X about her mother’s residential care. It refused to meet the full cost of the care and required Mrs X to pay a top up. It failed to establish if Mrs X’s mother could be moved to a cheaper home without detriment to her health. The Council acknowledged its failings in this case and proposed a remedy in recognition of the injustice caused.

The complaint

1. Mrs X complains about the third-party top up she is paying towards her mother, Mrs Y care at Corton House Residential Home.

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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 a council’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 discussed it with Mrs X;
• considered the correspondence between Mrs X and the Council, including the Council’s response to the complaint;
• made enquiries of the Council, and considered the Council’s response;
• taken account of relevant information;
• offered Mrs X and the Council an opportunity to comment on a draft of this statement.

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What I found

5. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.
6. The council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the council will provide a support plan which outlines what services are required to meet the needs and a personal budget which calculates the costs of those services.
7. The Act says that, if a person needs residential care and their capital falls below the threshold of £23,250, they will be eligible for council funding to pay for the residential care. However, a top-up fee may still need to be paid, in certain circumstances.
8. When it has been decided that a person’s needs are best met in a care home, the council must ensure that at least one accommodation option is available within the person’s personal budget and it should ensure that there is more than one of those options.
9. However, a person is able to choose alternative options, including a more expensive setting, if a third party or in certain circumstances the resident is willing and able to pay the additional cost (the top-up fee).
10. In determining how to meet needs, the council may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met).

What happened

11. Mrs Y moved into Corton House care home in January 2015 as a self-funder. Prior to the move she lived in a bungalow in the grounds of the home. She has dementia and severe anxiety, this being the reason Corton House was chosen, having lived in in the grounds of the home for some time Mrs Y was familiar with it and this allayed some of her anxiety.
12. In May 2017, Mrs Y’s capital had diminished and she needed funding from the Council. Mrs X says the Council informed her it would not pay the full cost of the placement at Corton House because it was above the Council’s banding rate, and if Mrs Y were to remain at the home a third-party-top up would be required. Mrs X says it was not in Mrs Y’s interests to move her to a different home so she agreed to pay the top up. The cost of the placement is currently £ 533 per week. The Council contribute £468, and Mrs X pays a top up of £65 per week.
13. In October 2017, Mrs X wrote to the Council to ask it to meet the full cost of Mrs Y’s placement. She explained Mrs Y had severe anxiety to such a degree that even a move to another room within the home was considered too disruptive for her. Mrs X did not receive a reply so she wrote again in January 2018. She received a holding letter form the Council’s finance service.
14. Mrs X heard nothing further from the Council until July 2018, when she received a letter from the Council’s complaints team confirming the top up would need to be paid. The letter did not address the points Mrs X had raised in her letters in October 2017 and January 2018.
15. Mrs X says moving Mrs Y to a lower cost care home would have a detrimental effect. She does not believe the Council has properly assessed the risks of any such move, and that it is in Mrs Y’s best interests to remain in her current placement.
16. Mrs X says the Council should increase Mrs Y’s personal budget to cover the full cost of the placement

The Council’s response to the Ombudsman

17. During this investigation, the Council acknowledged it failed to manage this case correctly. It failed to properly assess Mrs Y’s needs and establish if she could be moved without detriment to her health
18. It sincerely apologises for its failings and says it will reimburse Mrs X the full amount of top up fees paid, and meet the full cost of the placement, minus any assessed contribution from Mrs Y. It will also arrange an urgent review of Mrs Y’s needs.
19. The Council says the events occurred soon after the implementation of the Care Act and this caused some uncertainty for officers. It says it is now Care Act compliant and now has a compliance officer in post and a recurrence of such events is unlikely.
20. The Council agreed to provide Mrs X with a written apology for the incorrect advice given, and for failing to deal with her correspondence about this in a timely manner. It agreed to make a payment of £250 in recognition of the time and trouble Mrs X has been put to pursuing the matter with the Council and the Ombudsman.

Agreed action

21. The Council has agreed to:

• apologise to Mrs X for the incorrect advice given and for failing to deal with her correspondence about this in a timely manner, and make a payment of £250 in recognition of the time and trouble she has been put to pursuing the matter;
• reimburse Mrs X the full amount of third-party top up payments paid;
• meet the full cost of ongoing care fees for Mrs Y, whilst it is in her best interests to remain at the care home;
• undertake a full review of Mrs Y’s needs;

22. The Council should provide evidence of the above to this office within four weeks of the date of the final decision.

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Final decision

23. There is fault by the Council in this complaint. The Council acknowledged this during the investigation and proposed the settle the matter by way of the above remedy.
24. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman