Summary: Ms X complained about the way the Council arranged a long-term residential placement for her mother. The Ombudsman has found no fault by the Council. The Council’s communication about negotiation of top up fees should have been better. It has agreed to apologise to Ms X.

The complaint

1. Ms X complains on behalf of her mother (Mrs A). She says that the Council failed to complete a timely assessment to find a suitable placement for her mother. Because of this, Mrs A was in a care home (Care Home B) for a longer period than necessary and incurred top up fees that could have been avoided. She also complains that the Council said it would negotiate a reduced top up fee with Care Home B but this never happened.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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 made by Ms X;
• considered the correspondence between Ms X and the Council including the Council’s response to the complaint;
• made enquiries of the Council and considered its response;
• shared a copy of my draft decision with Ms X and the Council and invited their comments.

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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).

What happened in this case

10. Mrs A is 86 years old. She has been diagnosed with Alzheimer’s, arthritis, high blood pressure, poor mobility and high cholesterol. Prior to 27 April 2018, Mrs A lived at home and attended a day centre five days a week.
11. On 26 April 2018 Ms X contacted the Council and said that the family had observed a change in Mrs A’s behaviour, and they were finding it difficult to manage her nighttime needs. The Council completed a referral for domiciliary care.
12. On 27 April 2018 Mrs A’s family placed her in Care Home B for two weeks respite. The family privately funded the placement.
13. On 1 May 2018, Ms X contacted the Council and requested a care assessment for Mrs A.
14. On 8 May 2018 the Council completed a care assessment and mental capacity assessment. It decided that Mrs A did not have the mental capacity to make decisions about her own care. It also considered the Mrs A required further input from the community health team. Furthermore, the Council considered that Mrs A’s daytime care and support needs could be met in the community however her nighttime needs could only be met in residential care. Mrs A’s two sons were both present during the assessment.
15. On 10 May 2018 the community health team visited Mrs A and completed an assessment of her needs. It recommended an increase in Mrs A’s Memantine medication to treat her nighttime anxiety. It said that the increase in medication should be monitored for two weeks.
16. On the same day the Council made a referral to its in-house service provision, a residential dementia-unit. It requested a four-week assessment bed which was a non-chargeable service. The dementia unit confirmed that it could accept Mrs A from 15 May 2018 and the family were informed of this. Care Home B also agreed a two-week extension at a cost of £850 per week. The family told the Council that it did not want to move Mrs A from Care Home B as a change of placement may be disruptive to her heath. The family agreed to privately fund the additional two weeks of care at Care Home B.
17. On 24 May 2018 the Council sent a charging letter to Ms X which included an “application for top up fee” and “third party top up agreement” forms”.
18. The next day the Council agreed funding at Care Home B from 28 May 2018 to 11 June at a cost of £850 per week. This was to accommodate a best interest meeting to discuss Mrs A’s long-term care needs, scheduled for 5 June 2018. The Council’s records show that Ms X verbally agreed to pay a weekly third party top up payment of £347.87 for two weeks. The records state “family able to financially contribute to a TPTU for 2 weeks, they have already privately funded the placement at [Care Home B] for 4 weeks”.
19. A best interests meeting was held on 5 June 2018 it was agreed that Mrs A required long term residential care. It was agreed that Mrs A would remain at Care Home B until a suitable placement was found.
20. On 8 June 2018 the Council submitted a request to the funding panel requesting funding for an additional two weeks at Care Home B. On the same day the Council sent an email to Mrs A which said “I have submitted my panel authorisation for long term care however I noticed that I had not received the signed residential charging letter. Can you possibly send that back as a matter of urgency as the county placement team will not accept the referral without it”. Ms X responded on the same day and said she would “sign and post today”.
21. On 11 June 2018 Ms X emailed the Council and asked for a list of care homes and asked if it had received the signed third party top up letter. The Council responded the next day and said it had not received the signed charging letter which was different to the third party top up letter. It sent another charging letter to Ms X by email.
22. On 12 June 2018 the Council sent the third party top up for approval to the funding panel. The records state that Ms X was aware that there would be a third party top up to pay and would pay this from her capital. It is also noted that Ms X said that she could not sustain this long term and if a long-term placement was required the family would look at lower cost alternatives.
23. On 12 June 2018 the family told the Council that it had identified Care Home C as a suitable placement for Mrs A.
24. On 13 June 2018 the panel agreed to funding at Care Home B for two weeks from 12 June 2018 at £850 per week. On the same day the Council provided Ms X with details of homes showing availability for Mrs A’s long-term residential placement.
25. On 15 June the Council received a signed residential charging letter from Ms X.
26. On 20 June 2018 the Council contacted Ms X and asked her if there were any residential homes on the list that she would like the Council to approach. Following a request by Ms X the Council approached Care Home C about a long-term placement for Mrs A.
27. On 27 June 2018 Care Home C confirmed that it did not have any beds available at the Council’s guide price and a third party top up payment would therefore be required.
28. On 3 July 2018 Ms X emailed the Council and said that she was feeling frustrated “as getting no joy with homes”. Ms X referred to the top up payment at Care Home B and said it was not cheap. On the same day the Council sent Ms X an updated short list of homes showing availability for Mrs A’s long-term residential placement.
29. On 11 July 2018 Care Home C confirmed that it had carried out an assessment and decided that it could meet Mrs A’s needs. It said it would accept Mrs A on a four-week trial period and the charge for the room was £645:00 per week and therefore would require a top up payment.
30. On 12 July 2018 Mrs X emailed the Council. She said that the family could no longer sustain the top up payment at Care Home B. She said that most of the homes on the shortlist had vacancies but were either having maintenance work completed or required large third party top up payments. Ms X said that the family were happy with Care Home C but felt let down because they never assessed Mrs A.
31. On 17 July 2018 a room became available at Care Home C. The next day a placement became available at Care Home D. Care Home D undertook an assessment of Mrs A’s needs and said it could accept Mrs A at the Council’s guide price which required no third party top up payment. Mrs A moved into Care Home D on 20 July 2018.
32. The Council accepts that it told Ms X that it would negotiate a reduced to-up fee with Care Home B. The Council said that once the officer realised this would not be possible, she should have told Ms X during a telephone conversation on 16 July 2016.
33. There is an outstanding payment of £2,838.30 which represent a third party top up payment of £374.87 per week for the period of care from 28 May 2018 to 19 July 2019.

Analysis

34. Ms X considers that the Council should have carried out an assessment of Mrs A sooner. Mrs A’s family placed her into Care Home B on 27 April 2018. The placement was made without the Council’s involvement. On 1 May 2018 Ms A contacted the Council and asked it to carry out an assessment of Mrs A’s needs. The Council completed an assessment on 8 May 2019. A further assessment by the community mental health team was completed two days later. I do not find fault with what the Council did. It carried out a timely assessment and made a referral to the community health team as it considered appropriate.
35. Ms X accepts that she agreed to a third party top up payment however she considers that there was a delay by the Council in finding a suitable long-term placement for Mrs A. She says because of this, Mrs A was in Care Home B for a longer period than necessary and incurred top up fees that could have been avoided. The Guidance states that “the local authority therefore must ensure that at least one option is available that is affordable within a person’s personal budget and should ensure that there is more than one”. The Ombudsman’s view is that this means councils should provide one affordable care home.
36. The Council’s records show that it sent Ms X shortlists of homes showing availability for Mrs A’s long-term residential placements on 13 June 2016 and 3 July 2016. The first shortlist provided details of seven care homes with availability. One care home required no top up fee. The Council identified another care home that it said, “may reduce to guide price”. The second shortlist provided details of ten care homes with availability. One care home required no top up fee. Therefore, I am satisfied that on two occasions the Council provided Ms X with at least one suitable, affordable care home.
37. Ms X stated that the family were restricted in their search because some of the care homes on the list were having maintenance work completed. But I do not consider this to be a significant point in all the circumstances here. As I say in Paragraphs 23, 26 and 30 the Council’s records show that Ms X told the Council that she wanted her mother to be placed at Care Home C. The Council acted upon this and asked Care Home C to assess whether it could meet Mrs A’s needs. Care Home C confirmed that it had no available beds at the Council’s guide price and therefore a third party top up payment would be required. There is no evidence to show that Ms X asked the Council to approach any alternative care homes. Furthermore, in her complaint to the Council Ms X stated that her brother really liked Care Home C. The Council agrees that Mrs A remained at Care Home B for a longer period than necessary. It says that the principal cause of the delay was that Mrs A’s family were “set on her moving to [Care Home C] and were not prepared to consider other alternatives at a lower cost without the need for a third party top up”. Ms X disputes that this was the cause of the delay, but based upon the written records available, I find no fault in the actions of the Council.
38. The Council accepts that it told Ms X that it would speak to Care Home B and negotiate a reduced to-up fee. The Council said that once the officer realised this would not be possible, she should have told Ms X during a telephone conversation on 16 July 2018. Failure to do this is fault and has caused Ms X some frustration. However, Ms X clearly knew how the system worked and she knew that she had agreed to the pay the third party top up payment. The Council has offered to apologise to Ms X and has agreed to address this as a learning point. I am satisfied with the Council’s recommendations and do not consider that a further remedy is required.
39. I appreciate that Ms X will be disappointed with my decision. However, I am satisfied that there was no delay by the Council in carrying out an assessment and sourcing a long-term residential placement for Mrs A. Based on the evidence available, I find that Ms X is responsible for the third party top up having initially agreed to this.

Agreed action

40. Within four weeks of my final decision the Council will:

• Apologise to Ms X for the fault identified in paragraph 38;
• Ensure that learning from the fault identified is shared across the County.

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Final decision

41. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman