Summary: Mr X complained about the way the Council handled the care costs for his late father. He said the Council’s actions caused stress and worry for the family. The Council was at fault for not carrying out a full needs assessment and mental capacity assessment in November 2017, for not making clear what it had agreed about fees in its best interests decision in December 2017, for not considering the impact of Mr F moving to a new care home in 2018, for not being sufficiently proactive in resolving the dispute about top-up fees and for a delay in completing its financial assessment. It should pay the care home £1,000 to remedy the uncertainty caused.

The complaint

1. Mr X complained, on behalf of his late father, Mr F, about the way the Council handled his father’s care costs since June 2018. The Council said a third party should agree to pay top-up fees because the costs of the care home the family chose exceeded the Council’s standard rate. Mr X said the Council could not ask for a third party top-up because it did not offer an alternative care home that was within its standard rate. The top-up fees have not been paid and Mr X says the Council acted inappropriately when it said it would seek reimbursement either from him (as attorney) or from his father’s estate. Mr X also complained about delays in carrying out a financial assessment and errors with that assessment.

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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. 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)
4. 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

5. I considered:
• the information Mr X provided;
• the information the Council sent in response to my enquiries, including its daily records from October 2017;
• relevant law and guidance, as set out below; and
• our guidance on remedies.
6. Mr X and the Council had opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Needs assessment

7. 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.
8. Where the person has eligible needs as defined by the Care Act 2014 the council must meet those needs. The council should allocate a personal budget that is sufficient to meet the person’s care and support needs.

Financial assessment

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 the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
10. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
11. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.

Residential care costs

12. The (Choice of Accommodation) Regulations 2014 (SI 2014/2670) sets out what people should expect from a council when it arranges a care home place for them. It says that once a needs assessment has determined what type of accommodation will best suit the person’s needs, the person will have a right to choose the particular provider or location, subject to certain conditions.
13. The council has to arrange to accommodate the person in a care home of his or her choice provided:
• the accommodation is suitable for the person’s assessed needs;
• to do so would not cost the local authority more than the amount in the adult’s personal budget for accommodation of that type;
• the accommodation is available; and
• the provider of the accommodation is willing to enter a contract with the local authority to provide the care at the rate identified in the person’s personal budget on the local authority’s terms and conditions.

Top-up payments

14. The care and support planning process will identify how best to meet a person’s needs. As part of that, the council must provide the person with a personal budget. The personal budget is the cost to the council of meeting the person’s needs which the council chooses or is required to meet. The council must ensure that at least one choice is available that is affordable within a person’s personal budget and should ensure there is more than one choice.
15. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top up fee is the difference between the personal budget and the cost of a home.
16. However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:
• the person can find someone else (a “third party”) to pay the top-up; or
• the person has agreed a deferred payment arrangement with the council and is willing to pay the top-up fee himself.

The statutory guidance says the additional payment should be optional and not as a result of commissioning failures leading to lack of choice. (paragraph 8.37, Care and Support Statutory Guidance 2014)

17. In such circumstances, the council needs to ensure the person paying the ‘top-up’ enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement. Before entering into the agreement the council must give the person paying the ‘top-up’ with sufficient information and advice to ensure they understand the terms and conditions. Ultimately, if the arrangements for the top-up were to fail the council would need to meet the cost or make alternative arrangements, subject to a needs assessment. (Annex A, Care and Support Statutory Guidance 2014)

NHS Continuing healthcare

18. “NHS continuing healthcare (NHS CHC) is a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs that have arisen because of disability, accident, or illness.” (NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012).
19. The NHS can provide continuing healthcare at home or in a care/nursing home. The NHS is responsible for meeting the full cost of care in a care home for residents whose primary need for being in care is health-based. The 2012 Regulations say the NHS should assess for NHS Continuing Healthcare where it appears somebody may be in need of such care.

Mental Capacity Act

20. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. A person must be deemed to have capacity unless it is established that he lacks capacity.

Mental capacity assessment

21. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. An assessment of someone’s capacity is specific to the decision to be made at a particular time. How it assesses capacity may vary depending on the complexity of the decision.

Best interest decision making

22. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in their best interests. The decision maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
23. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the court of protection might need to decide what is in the person’s best interests.

Court of Protection

24. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves. The Court of Protection may need to become involved in difficult cases or cases where there are disagreements that cannot be resolved in any other way.

Enduring power of attorney

25. An Enduring Power of Attorney (EPA) is a legal document that allows people to choose someone to act as their attorney and make decisions on their behalf. The attorney can make decisions on the person’s behalf whilst they still have the capacity to make the decision themselves. If the person no longer has capacity to make decisions, the EPA has to be registered with the Court of Protection. Until it is registered, the attorney cannot make decisions on behalf of a person who does not have capacity.

What happened

26. Mr F lived independently until June 2017. He then moved between his children’s houses but his health deteriorated and he was admitted to hospital in October 2017 after three falls in one day. The family told the Council they could no longer care for Mr F and he was not safe on his own.

Assessment and care planning - November 2017

27. The Council completed a “proportionate assessment” on 21 November 2017. The records suggest the assessment included a review of the hospital records and a discussion with hospital staff but was not a full needs assessment. The assessment stated Mr F’s family “visit him daily on the ward to support with his care and therefore the Staff Nurses are not fully aware of his care needs”. The Council said the proportionate assessment was intended to facilitate a safe and timely discharge from hospital. It says it cannot always carry out a full assessment in a hospital setting where needs are fluctuating and possibly made worse by illness.
28. Also on 21 November 2017 there was a case conference, which Mr X attended. Hospital staff confirmed Mr F was medically stable and ready for discharge. They said there was a risk of infection if he stayed in hospital. The family wanted Mr F to move into residential care and hoped to secure NHS continuing health care (CHC) funding. The Council’s position was that 24 hour care was a last resort and that other “less restrictive” options should be considered first. The records show there was some discussion about what care could be provided if Mr F returned home, and the risks for Mr F when he was left alone between care calls. The record shows the family did not agree Mr F could return home. The Council recommended a “transitional bed”, which would be free for up to four weeks, during which the Council could carry out further assessments.
29. Council records state that on the same day as the case conference the Council discussed the costs of care with Mr X. It told him that Mr F would be self funding if he had capital over the upper limit of £23,250. It gave him its leaflet about residential and nursing care charges, which included information about:
• financial assessments
• how Mr F’s contribution would be calculated
• the Council’s standard rate for care homes
• third party contributions (“top-ups”)

Mr X signed a financial statement letter to confirm the Council had given him the charges leaflet, had explained the financial implications of Mr F moving into a care home, and had strongly advised him to seek “independent legal and financial advice” about the options for funding the care. He says he was not given an opportunity to read the information before signing the letter.

30. The Council identified a possible transitional bed placement for Mr F but on 28 November the care home said it could not meet Mr F’s needs. A second care home was identified. This care home assessed Mr F in hospital. It said Mr F needed nursing care. It offered the place on 5 December 2017. Mr X declined the place. He said the care home was too far away and he was not satisfied it understood his father’s needs. The Council said not all care homes offered transitional beds and there were currently no other placements available in its area. It said if the family wanted Mr F to go to another care home “this would have to be self funded as an option has been provided to them by social services for a transitional bed”.
31. By this time, Mr X had consulted a lawyer, who had asked for an NHS Decision Support Tool (DST) meeting to be completed in hospital. This meeting was to decide whether Mr F was eligible for NHS continuing health care (CHC) funding. The Clinical Commissioning Group agreed to hold the meeting in hospital and told the Council it had agreed this on 5 December 2017.
32. The Council says it took no further action to identify a placement for Mr F because it was waiting for the DST meeting, which was expected to take place within a few days.
33. On 7 December the hospital told the Council the family had arranged to move Mr F to a care home. Mr F moved on 8 December. The Council was not involved in arranging this care.
34. On 8 December the Council contacted Mr X, who said:
• he had arranged care himself to avoid further delays by the Council;
• the DST meeting would now take place in the care home;
• he was aware of the risk the DST might conclude the care home did not meet Mr F’s needs;
• Mr F would be self funding because he had capital above £23,250; and
• if CHC funding was refused, Mr F would continue to be self funding until his capital fell below £23,250.

My findings – assessment and care planning November 2017

35. The family were clear when Mr F was in hospital in November 2017 that he could not return home because they could no longer meet his needs. It was not clear from the records why the Council did not carry out a full assessment of Mr F’s needs whilst he was in hospital. Mr F was described as having some cognitive impairment but no dementia diagnosis at that time.
36. The Council said it was looking at the least restrictive option, which is the language used where a person does not have capacity to make their own decisions but the council did not carry out a mental capacity assessment.
37. The failure to carry out a mental capacity assessment and a full assessment of needs was fault. This fault meant the Council did not have sufficient information to consider a long-term placement for Mr F. This fault has not caused significant injustice because the family had the right to make its own choices about Mr F’s care as he was paying for his own care at that stage.
38. The Council gave Mr X a leaflet explaining the costs of care and Mr X signed to say he had received this. Although Mr X says he wasn’t able to read this before signing it, it is clear from the documents I have seen that he understood Mr F would be self funding because he had capital of more than £23,250.
39. The leaflet also explained what the Council would pay towards residential or nursing care, and that if the person chose a more expensive care home a third party would need to pay a top-up fee (the difference between the Council’s rate and the actual fees). Therefore, Mr X was aware of the amounts the Council would pay when he arranged the care home for Mr F in early December and that a top-up fee may be payable if the care home fees exceeded the Council rate. He was also being advised by his lawyer.
40. The leaflet refers to “standard rates”, which is old terminology from before the Care Act 2014. Under the Care Act the Council should consider each individual’s needs and set a personal budget. The reference to standard rates is fault. This fault has not caused injustice because councils can still set generic personal budges for people with similar care needs.

Mental capacity – December 2017

41. When Mr F moved to the care home he did not have mental capacity to sign the contract. Mr X had an Enduring Power of Attorney (EPA). The attorney must register an EPA with the Court of Protection when the person giving it becomes incapable of managing their affairs. This meant there was no-one with authority to sign the contract with the care home on behalf of Mr F.
42. The Council completed a mental capacity assessment (MCA) on 14 December 2017. It decided Mr F did not have capacity to make a decision about where he lived, following which it made two “best interests” decisions:
• that Mr F should remain in the care home until the EPA was registered; and
• the Council should fund the placement until the EPA was registered.
43. The care home was not on the list of homes the Council had contracted with before and this caused some delay in setting up arrangements to make the payments. The Council says there was also a delay by the care home in providing the information it needed. This was resolved on 6 January 2018 and on 8 January the EPA was registered.
44. Although the best interests decision state the Council would fund the placement until the EPA was registered, the Council did not in fact pay the fees for that period. Mr X says he paid them on 22 March 2018. I have seen the lawyer’s record of the meeting on 14 December 2017, which suggests the Council would pay the fees by way of a loan.

My findings – mental capacity – December 2017

45. The Council made a best interests decision that Mr F should stay in the care home until the EPA was registered and that it should fund the care during that period. It is not clear from the best interests decision whether the Council intended to recover any sums paid. However, it is likely this was the Council’s intention since the law does not allow the Council pay for a person’s care when they have capital assets over £23,250. In addition, the lawyer’s record of the meeting on 14 December 2017 suggests the funds would be paid as a loan.
46. It took some time for the Council to set up arrangements with the care home but this delay is not sufficient for a finding of fault. By the time the arrangements were in place, the EPA had been registered.
47. The Council was at fault for not making it clear in the best interests decision precisely what it had agreed to about the fees. On balance, I consider the fees for this period should be paid by Mr F because he was a self-funder at that time, and therefore this fault has not caused substantial injustice.

April 2018 onwards

48. Mr X contacted the Council in April 2018 because Mr F’s capital had reduced almost to £23,250. He asked for a financial assessment. There was initially a dispute between the Council and another council about which of them was responsible for assisting Mr F. This was because the care home was in another council’s area and this Council argued it had not placed Mr F in the care home. By mid May this Council had accepted it was responsible because it was involved in December 2017.
49. There was then a dispute between the Council and Mr X about top-up fees. This was because the care home fees were higher than the Council’s standard rate for care homes. The family were unwilling to pay the top-up fees (the difference between the Council rate and the care home rate), which were £60 per week.
50. The Council carried out an assessment of needs on 10 May 2018. It decided Mr F needed to live in a care home. On the same day, it carried out a further mental capacity assessment (MCA). It made a “best interests” decision that Mr F should be cared for in a care home. The decision document states Mr F would not be safe if he returned home with a care package.
51. I have seen a balance sheet completed by the MCA assessor setting out the weighted benefits and burdens of three possible options. Option A was that Mr F could return home with support. The burdens for this option clearly outweigh the benefits. Option B was that Mr F would remain in the current care home and Option C was for him to move to another care home. Many of the benefits and burdens for these options were the same. The main difference appears to be that option C had the advantage that a third party top-up would not be needed. This would remove the risk that the care home would give notice for Mr F to leave because the top-up fees were not paid.
52. There is no record of any special needs that meant Mr F had to stay at the current care home. The assessor concluded it was in Mr F’s bests interests “to source a care home that can meet [Mr F’s] needs but does not apply third party top-ups”.
53. There was a meeting at the care home in July 2018 attended by care home staff, Council officers, Mr X and Mr X’s lawyer. I have seen notes of the meeting from both the Council and Mr X’s lawyer. It is clear the family’s position was that moving Mr F to an alternative home was not in his best interests and care home staff supported this position. The meeting appears to have gone over old ground about what happened when Mr F was in hospital and was initially placed in the care home by his family. It is clear the Council considered the family should agree to pay a top-up but the family’s position was that they were not legally required to do so. It was suggested the Council might ask for an independent best interests assessment and would carry out a further assessment itself. It does not appear these further assessments were carried out. In a telephone call a few days after the meeting Mr X told the Council that his father would not be moving. He said he couldn’t comment on the issue of top-up fees.
54. In August 2018 the Council wrote to Mr X’s lawyer giving details of care homes in its area with vacancies that could meet Mr F’s needs without the need for a top-up payment.
55. The Council completed the financial assessment in October 2018, and revised it in November because some pension income had not been included. The Council decided it would fund Mr F’s care from 7 June 2018.
56. The Council did contact the Court of Protection on the basis that Mr X, as attorney, was not acting in his father’s best interests. I understand the Court of Protection made enquiries but did not take any further action.
57. In January 2019 the Council told Mr X there were three options. Option 1 was for the family to pay a top-up. Option 2 was for it to find an alternative care home for Mr F. If the family had not agreed to either of those options by mid February 2019, option 3 was for the Council to take legal action to recover outstanding sums from Mr X.
58. Mr X made a formal complaint in February 2019. Amongst other things, Mr X said
• he was not willing to enter into a third party agreement for the top-up fees and the Council had not shown any legal basis for requiring him to do so;
• the family considered it was in Mr F’s interests to remain in his current care home; and
• the Council had no legal basis for recovery outstanding care costs from him.
59. In its complaint response in April 2019 the Council said it had the right under the Care Act 2014 to recover arrears from Mr F’s estate. Mr X complained to us.
60. Mr F died in May 2019 after a short illness. The unpaid top-up fees when Mr F died amounted to just over £3,000.

My findings – April 2018 onwards

61. When Mr X asked for a financial assessment, the Council considered whether this was their responsibility. The situation was not clear cut and generally where someone is self funding the council in whose area the care home is situated would deal with the funding of care costs. Therefore, the Council was not at fault for pursuing the question and there was no undue delay in settling it.
62. In May 2018 the Council decided Mr F’s needs were best met in a care home and that, in view of the risks associated with non-payment of top-up fees, it decided it was in Mr F’s bests interests to source a care home that could meet Mr F’s needs without the need for top-up payments.
63. It was not fault for the Council to consider alternative care homes in these circumstances. However, before doing so it should have considered the impact on Mr F of moving. I would have expected the Council to set out in the best interest decision how it considered this question and the conclusions it reached. I have seen no document to show the Council considered this question and this was fault.
64. This fault led to uncertainty for the family. If the Council had decided Mr F could not move to another care home, the Council would have had to pay the care home fees in full.
65. The Council proceeded on the basis Mr F could move and it provided a list of possible care homes to Mr X’s lawyer in August 2018. However, it is clear the family did not agree to Mr F moving nor did it agree to pay a top-up fee so Mr F could stay where he was. There was then an impasse.
66. It is not clear why the Council did not ask for an independent best interests assessment, as suggested at the July 2018 meeting. This might have helped the parties to resolve the dispute. Alternatively, the Council could have referred the matter to the Court of Protection for a decision about what was in Mr F’s best interests. As it was, no real progress was made between August 2018 and Mr F’s death in March 2019, and the top-up fees remained unpaid, which put Mr F’s placement at risk.
67. The failure to take more proactive action to resolve the situation was fault. However, I cannot say the Council should have paid the top-up fees. On balance, I consider the Council would have said that Mr F could move to an alternative home because:
• there were no special needs that only the current care home could meet;
• Mr F had only been there a few months;
• before going to the care home, Mr F had been coping with moving between his children’s houses; and
• there is nothing in the records to suggest any reason he should not move apart from the fact he was settled in the care home.
68. In any case, there is no additional injustice caused by this because the care home did not give notice and Mr F was able to remain there.
69. The Council did not complete a financial assessment until October 2018. It is not clear why it took six months to complete the financial assessment, even taking into account the initial discussions with the other council. The delay in completing the financial assessment was fault. This fault did not cause significant injustice because the Council did agree to fund from 7 June 2018. I have not made a further finding of fault for the error with the pension income because that was quickly identified by Mr X and put right by the Council.

Agreed action

70. The Council will, within one month of the date of the final decision, apologise to Mr X for:
• its failure to carry out a full assessment of needs and mental capacity assessment in November 2017 when Mr F was in hospital;
• not making it clearer in the best interests decision in December 2017 what it had agreed about the fees;
• not considering the impact on Mr F of moving to a new care home in 2018 when the dispute about top-up fees arose;
• not taking proactive action from August 2018 to resolve the dispute; and
• its delay in completing the financial assessment.
71. Mr X has sent me a statement from the care home that shows the amount of outstanding costs were £3,077.56 in May 2019. The Council will, within one month of the date of the final decision, pay the care home £1,000, which is the maximum award for uncertainty in accordance with our guidance on remedies.
72. The Council will, within three months of the date of the final decision:
• remind relevant staff of the need to consider all aspects of a best interest decision and clearly record how it has considered them. In particular, where the Council is considering whether someone should stay in a care home, it should consider the impact on that person of moving to an alternative care home.
• amend its literature so that it is in line with the wording of the Care Act 2014 and statutory guidance.

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Final decision

73. 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 this fault.

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Investigator's decision on behalf of the Ombudsman