Summary: Mr X complains the Council did not explain the costs involved when his mother went into short term residential care. He also complains the Council did not take into account her housing-related costs when deciding how much she should pay towards her care. The Council was at fault. It should waive some of the costs to remedy the injustice caused.

The complaint

1. Mr X complains on behalf of his mother, Mrs M, that the Council:
• failed to explain his mother would need to contribute to the cost of respite care for 6 weeks in October and November 2017;
• did not take into account her housing costs when calculating the contribution for the respite care;
• wrongly advised the family not to cancel her domiciliary care, which meant his mother incurred further costs of £773 whilst she was in respite care; and
• has not left his mother with sufficient income for personal expenses when calculating her contribution to the permanent care home.
2. Mr X says the Council sent an unexpected bill for £1,700 for the respite care in December 2017, which caused worry and distress because the family have no means to pay it.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. 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

6. I considered:
• the information Mr and Mrs X gave me;
• the information the Council provided in response to my enquiries, including its needs assessments, financial assessments and case notes for Mrs M;
• relevant law and guidance, as set out below; and
• our guidance on remedies.
7. I gave Mr and Mrs X and the Council an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Law and Guidance

Needs assessment

8. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve.

Charging for permanent residential care

9. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When a council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much an individual has to pay towards the costs of their residential care.
10. The statutory guidance says the council should ensure it provides sufficient information and advice to ensure the individual or their representatives understand any contributions they are asked to make. Our Focus Report “Counting the cost of care: the council’s role in informing public choices about care homes” (September 2015) says councils need to provide information in writing at the earliest opportunity so that people can make informed choices about the choice of care home, including the costs and how to meet them.

Charging for temporary residential care

11. The statutory guidance says where an individual is a short-term resident in a care home for not more than eight weeks, the council can choose whether to assess and charge them based on rules for care and support other than in a care home.
12. Annex F says income and earnings should be treated in the same way as for permanent residents but any additional amounts the person needs to pay to maintain their home during a temporary stay so they can return to it “must be disregarded”. Such expenses may include, but are not limited to, ground rent, service charges, water rates or insurance premiums.

What happened

13. Mrs M went into hospital after a series of falls in early October 2017. She returned home the following day with wraparound care funded by the NHS. The Council then arranged an emergency placement for her for 72 hours at a care home. It was clear Mrs M could not return home when the emergency placement ended.
14. Prior to the hospital admission Mrs M was living at home with support from Mrs X and a privately arranged care package. The family said Mrs M’s mental capacity had deteriorated significantly and there were incidents when she had not kept herself safe. They asked the Council to arrange permanent residential care. The Council said residential care was a last resort. It wanted to consider whether Mrs M could return home with a care package first. It agreed to a temporary placement at another care home, initially for two weeks but later extended to allow for further assessment of Mrs M’s needs.
15. The Council completed a needs assessment in the care home in early October. At that stage, Mrs M understood the family were concerned about her safety and agreed she needed to consider a care home permanently. The Council reviewed her needs in late November. By this point Mrs M did not have capacity to make decisions about her care. The Council decided Mrs M’s best interests were met by staying permanently in the care home.

Costs of care

16. Mr and Mrs X say they did not know they needed to pay for Mrs M’s respite care. They understood the Council was funding this until it decided Mrs M needed permanent residential care.
17. The Council says an officer explained the costs of care in early October 2017 and provided its leaflet “Paying to live in a care home”. It says Mr X signed to say he had received this.
18. I have seen the case notes which record Mr X was given the leaflet and signed the contract as he had power of attorney for Mrs M. I have seen the placement document where Mr X signed to confirm he had received the leaflet and the officer had “explained all financial implications and the need to set aside income to pay for care costs”. The form states if the person has less than £23,250 in capital they can apply to the Council for funding assistance, and a financial assessment will determine the level of contribution required.
19. The case notes record the Council told Mrs X on 6 October that it had authorised a temporary stay of two weeks. On 21 October it told Mrs X its panel had “approved funding for another 5 weeks to see if [Mrs M’s] health improves and she can return home with home care package”.
20. Mr X signed the care home’s terms and conditions, which say the fees will be £460 per week. It does not state who is responsible for paying those fees.
21. Mrs X says the Council advised the family not to cancel the domiciliary care because Mrs M may return home. This meant Mrs M had to pay for the domiciliary care until the Council decided she should stay permanently in a care home. The domiciliary costs were £772.81 for this period. The Council does not have a record of the advice it gave. It believes the officer said not to cancel the contract completely but to tell the care provider it did not need to provide care whilst Mrs M was in the care home. As a goodwill gesture, it has offered to offset these costs against the outstanding care costs.
22. Mrs X also says the Council advised the family not to give up the home Mrs M was living in (which was owned by a trust) until it was decided she could not return home. This meant Mrs M had to continue paying housing-related costs until the Council decided she should stay permanently in a care home. I have seen no record of the advice the Council gave the family about giving up Mrs M’s home.

Financial assessment (short stay placement)

23. Council records show Mrs X provided the documents it needed for the financial assessment on 12 October.
24. On 25 October 2017 the Council wrote to Mr X to confirm it was carrying out a financial assessment for Mrs M. The letter said: “Your client contribution assessed charge will commence from the first day of your long stay residential placement”.
25. The Council completed the financial assessment on 30 November 2017. The Council wrote to Mr X on 4 December 2017 to tell him what the assessed contribution was. It sent a bill for £1,707.38 for the short stay placement on 5 December 2017. Mr and Mrs X have not paid this bill.
26. The Council did not take into account Mrs M’s housing costs when calculating the assessed contribution. It says this was because although it has discretion to do this, it does not have to do so. It says it only considers housing-related costs where it is a permanent placement and there is a deferred payment arrangement. Where there is a deferred payment arrangement it only takes into account insurance and expenses to protect the property.

Financial assessment (permanent placement)

27. Mr X complained the Council had not left his mother sufficient income for personal expenses. The financial assessment shows Mrs M is left with £30.65 after paying the assessed contribution for her residential care. This is made up of the personal expenses allowance of £24.90 per week and a savings credit of £5.75 per week.

My findings

28. The Council arranged a temporary placement in residential care for Mrs M in early October 2017. Although the family thought Mrs M needed to stay in a care home permanently, the Council was still considering whether she could return home with a care package. It did not decide Mrs M needed a permanent placement until late November 2018.
29. The Council gave Mr X its leaflet “Paying to live in a care home” in early October 2017. Mr X signed to confirm he had received this. I have seen the leaflet, which explains the costs of permanent residential care. It does not mention costs for temporary placements. There is no clear record to show what information the Council gave Mr X about the cost of the temporary placement. It did not confirm its advice and information in writing.
30. When the Council wrote to the family on 25 October 2017 it stated the assessed contribution would start from the first day of the long stay residential placement. The family understood this meant the assessed contribution would start on the date the Council decided Mrs M should stay in a care home permanently.
31. The lack of clear advice about the cost of a short or temporary stay in a care home was fault. This fault meant Mr and Mrs X were unclear about whether Mrs M had to contribute to the cost of care and, if so, how much.
32. Mrs X provided the information for the financial assessment on 12 October 2017. The Council did not write to them about the assessed contribution until 4 December. In its complaint response it acknowledged there was a delay in telling them what the assessed contribution would be. This delay was further fault and added to the uncertainty for the family about the costs involved.
33. The Council also says it does not take into account a person’s housing-related costs during a short stay because it says this is discretionary. This is fault.
34. Annex F of the Care and Support Statutory Guidance says any additional amounts the person needs to pay to maintain their home during a temporary stay so they can return to it “must be disregarded”. The Council was still considering whether Mrs M could return home until late November. She needed to maintain her home until it was clear she would not be returning. The failure to take Mrs M’s housing-related costs into account was fault.
35. This fault meant the assessed contribution was higher than it should have been for the period to 27 November when the Council decided Mrs M needed to stay in a care home permanently. The Council did not need to take into account all the housing-related costs Mrs M incurred, only those necessary to maintain the property for her to return to. This means the assessed contribution would only have been reduced by a small amount and only for the 6 weeks that Mrs M was in a temporary placement.
36. In deciding an appropriate remedy for these faults, I have taken into account the fact that all parties agreed Mrs M needed care in a residential home during this period. The care was provided and should be paid for.
37. The lack of clear advice about the domiciliary care whilst Mrs M was staying in the care home on a temporary basis was also fault. This fault meant Mrs M incurred costs for the domiciliary care. The Council has offered to offset these costs against the outstanding care costs. This is an appropriate remedy for this fault.
38. I am satisfied the Council explained the costs involved for permanent residential care and Mrs X confirmed the family understood Mrs M had to contribute to the costs once the placement became permanent. I have found no fault in the way the Council assessed the contribution towards the permanent residential care.

Agreed action

39. The Council will, within one month of the date of the final decision:
• Apologise to Mr and Mrs X for the worry and distress caused by the inadequate information about the costs of the short stay placement for Mrs M, the delay in telling them about the assessed contribution, the failure to take into account Mrs M’s housing-related costs when assessing her contribution and the lack of clear advice about the domiciliary care during the short stay placement;
• Reduce the amount of the outstanding invoice for the short stay placement by £350 to remedy the confusion and distress caused by the poor costs information, and delayed financial assessment; and to recognise the housing costs which were not taken into account.
• Reduce the amount of the outstanding invoice by a further £772.81 to reflect the unnecessary domiciliary care costs incurred;
• Pay Mr and Mrs M £100 for the time and trouble in pursuing the complaint. The Council may offset the sum against the outstanding invoice;
• Send Mr and Mrs X an updated invoice to show the amount still outstanding for the period to 27 November 2017.
40. The Council will, within three months of the date of the final decision:
• Review its processes to ensure that it gives sufficient information and advice to ensure the individual or their representatives understand any contributions they are asked to make towards their adult social care, including temporary care home stays, as required by the Care and Support Statutory Guidance;
• Review its processes to ensure it takes into account housing-related costs where it arranges a short stay for an individual who may be returning home in accordance with Annex F.

The Council should report to us on the steps it has taken to review its processes and any changes it has made as a result.

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Final decision

41. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

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Investigator's decision on behalf of the Ombudsman