Summary: there is no fault by Bolton Metropolitan Borough Council in its handling of care home availability and a third party top-up for placements in a care home for the complainant’s parents

The complaint

1. The complainant, whom I shall refer to as Ms A, says Bolton Metropolitan Borough Council is at fault in its handling of her parents’ finances in relation to care home fees. Specifically she says it failed to:
1. set an adequate personal budget to meet her parents assessed needs and reflect market conditions;
2. ensure genuine choice and that at least one option was available within her parents’ personal budget;
3. agree to pay the full cost of her parents’ care when no suitable care home was available within their budget;
4. undertake an assessment of her parents’ finances before agreeing placement at care home 3 and before agreeing with her that she was prepared to pay a third party top–up; and
5. provide her with the required financial information before the placement commenced and before they required her to enter into the third party top-up agreement.
2. Ms A has made her complaint with the help of a solicitor whom I shall refer to as Ms B.

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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) 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. My colleague discussed the complaint with Ms B, considered the written information Ms B provided with the complaint and made written enquiries of the Council. I have considered all the information carefully before reaching a draft decision on the complaint.
6. Ms B 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

What should have happened

7. The Care Act 2014 requires councils to complete a needs assessment where it appears an adult may have a need for care and support. It must assess whether the adult has such needs and of so what those needs are. The council must then devise a care and support plan to meet any identified eligible needs. It must also include a personal budget. The council should provide an “indicative budget” at the start of the care planning process and this is later adjusted when details of how needs will be best met is clearer.
8. The Care Act 2014 states that a person with assets above the upper capital limit is responsible for the full cost of their care. The upper capital limit is £23,250. A person with assets between the upper capital limit and the lower capital limit (£14,250) pay what they can from their income plus a means tested contribution form their assets (calculated as £1 per week for the £250 of capital between the capital limits). A person with assets below the lower capital limit will only pay what they can afford from their income.
9. Sometimes the full cost of the care home chosen by the person is higher than the cost of the care the council has assessed in the personal budget. If a person proceeds to decide they do wish to go to such a care home the shortfall between the personal budget and the full cost of the care has to be met by a third party (usually a relative) and cannot be paid out of the person’s own money. If a top is agreed by a third party there should be a separate agreement with the council clearly identifying the amount the third party has agreed to pay.
10. Councils are required to ensure that at least one care home is available at the personal budget rate and should ensure that more than one is available. If such accommodation is not available the council must arrange placement at a more expensive setting and provide a personal budget that meets this higher cost. Councils cannot require a third party top-up in such circumstances.
11. Bolton Metropolitan Borough Council says that it uses a computer system to calculate the indicative budget. This relies on someone putting the details of the eligible needs into the computer programme which then applies an algorithm to calculate the indicative budget. The Council says that if it it is not then able to meet the individual’s needs with the amount in the indicative budget it will authorise additional funds.
12. The Council has an online portal which may be accessed by people seeking places in local care homes. The Council says “Care home availability is shown through an online portal “Care Count” which indicates which have beds currently available and whether they take local authority rates”.
13. 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. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
14. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
15. 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.
16. Councils are required to undertake an assessment of financial resources where they have decided that a person is in need of care and support and thinks they would charge for at least some of these needs.

What happened

January 2019

17. In January 2019 Ms A was in contact with her parent’s social worker discussing the possibility of a respite care placement for her father as her mother was struggling with caring for him. Both parents had been diagnosed with dementia.

February 2019

18. Mr P left his respite placement around mid February but shortly after leaving had a fall at home and returned to the respite placement. Mrs P had also been admitted to hospital around this time. The social worker told Ms A that she needed to complete a capacity assessment for Mr P while he was in the respite placement and that if the outcome of this was that he did not have capacity she would then need to arrange a best interests meeting to decide on where he should live in the longer term. She said she would not be doing the same for Mrs P as she was currently in hospital and a hospital based social worker would complete an assessment for her and said that if Ms A was concerned about her going home she should discuss that with the hospital. The social worker told Ms A that it would take some time to complete this process. The social worker’s notes record that Ms A was of the view that her parents were not safe to go home.
19. Shortly after, a capacity assessment on Mrs P determined that she did not have capacity to make a decision on where she should go after she was discharged from hospital. It was agreed between the social worker and the family that Mrs P would go to the same respite care unit that Mr P was in so that planning for both Mr and Mrs P could be completed together by the Council’s social worker. A two week placement was initially agreed in the respite placement.
20. On 28 February Ms A contacted the Council to say she had found a vacancy in a long term care home placement for Mrs P and that Mr P could move there also when a further vacancy arose.

March 2019

21. On 4 March the social worker told Ms A that she had not completed her assessment so had not reached a decision that Mrs P needed long term care though she accepted this was likely to be the decision. She also said she had not completed the capacity assessment and a best interests decision had not been reached on the longer term care needs. She advised that whatever happened Mr and Mrs P would need to stay together. Ms A told the social worker that she had already also looked at another home. The social worker told her that this home had a £400 a week top up fee per person and that Ms A would need to provide proof that she could pay this for the three to five years. The social worker’s notes record that Ms A said that was ok.
22. The capacity assessment for Mrs P was completed on 5 March and concluded that she did not have capacity to decide on her future needs or care placement.
23. The social worker completed the capacity assessment of Mr P on 6 March and concluded he too did not have capacity.  On 7 March the social worker’s notes record that she spoke to Ms A about finding a placement for both parents together and that she “went through” some care homes with her that had vacancies.  Ms A told the social worker that she had already arranged to see another care home which the social worker told her had an £800 weekly top up.  Ms A asked the social worker if the Council would pay one top-up if she paid the other. The Council refused on the basis there were homes available without a top up or with a smaller top up. 
24. The best interest decision was reached on 8 March. Those noted to have been included in this decision related to Mr P were Ms A, Mr P’s son and daughter, another two step-daughters and Mr P’s general practitioner. The notes of the meeting in relation to Mr P record that the meeting decided that Mr P’s best interests would be met by him moving to a residential care home. Mr P is noted to have agreed with the decision “as long as it involved his wife…”. The notes of the meeting in relation to Mrs P note that those involved in the decision were Ms A, Ms A’s two sisters, Mr P’s children and Mrs P’s GP. The decision reached was that it was in Mrs P’s best interests to be placed in long term care.
25. On the same day the best interest decision was reached Ms A found a placement at a care home I will refer to as care home 3 for both parents that had a £30 top up fee for each parent.  She had not been able to view it as there was an infection in the care home. She viewed it when it re-opened 10 days later and decided to place both parents there. The Council says that Ms A provided a copy of a bank statement provided by Ms A which provided that shew would be able to pay the top-up payment for a period of five years. Ms A duly signed the top-up agreement on 22 March and both parents began their placement there on 25 March.
26. In late April Ms A contacted the Council to say she had not understood that she would be responsible for paying the third party top-up and that she did not want to pay this. She said she did not also understand that Mr and Mrs P would also make a contribution to their care costs from their income even though their assets were below the upper capital limit of £23,250.

Additional information

27. The Council says it asked Ms A to find or decide which care home she would prefer for her parents in March and the social worker’s records show that she “went through” the care homes with Ms A on 7 March. The Council has provided me with a list of five care homes that had vacancies and which accepted the personal budget rate determined for Mr and Mrs P at that time. There seems to be no dispute about this as in her complaint to this office Ms B listed the same five homes and stated these were the homes the Council had told Ms A would accept the personal budget allocated for Mr and Mrs P. However, she argues that the first of these was not open when she contacted it as there was an infection in the home (Ms B has confirmed the dates it was closed for was 22 February to 1 March which was some time before the social worker had discussed this with Ms A), three said they did not have any rooms at the Council’s rates and did not have two spaces, another only had beds that met needs different to those of Mr and Mrs P.
28. In contrast the Council has provided copies of the vacancies these care homes had at the time and which were listed on the website at that time and this confirms that four of these homes had two spaces in the period from 6 to 15 March which is when the Council had completed its best interest decision making and agreed that long term care home placements were needed for Mr and Mrs P.
29. On 8 March however Ms A identified care home 3 as one that she was interested in and decided to wait to visit that one for 10 days until a stomach bug in the home was satisfactorily eradicated. There is nothing to suggest that she approached any of the five care homes detailed as accepting the personal budget rate at that time and which had vacancies during this period.
30. After her parents were placed in their care home Ms A said she had not understood that she would have to pay the top-up. However, having said this she then moved them to a more expensive room stating, as recorded by the Council, that the additional charge was only £20 more a week and she was happy to pay this.  The Council says it provided Ms A with a leaflet about top-ups but there is no record of this in the Council’s records. There are however several notes of when the social worker told her that homes she had identified required a top-up of various amounts including £400, £800 and £30. In relation to the home where the top up was £800 she is noted as having asked if the Council would pay half if she would pay the other half. The agreement she signed on 22 March is clear in stating that she was accepting responsibility to pay the top up amount and this was witnessed by a third party.

The Council’s comments

31. The Council says its computer system calculated an indicative budget of around £400 a week for Mrs P and of around £250 a week for Mr P. It says that at the time (2018/19) its weekly rate for care homes was set at £490. It says that as this was higher than the indicative budget calculated for Mr and Mrs P the Council agreed a personal budget of £490 a week for both Mr and Mrs P. So the personal budget was set at its weekly rate for care homes: £490.
32. The Council says its geographical area includes 34 care homes for older people. It says it uses a computer programme which provides up to date information on which care homes have vacancies and whether they accept the Council’s weekly rate.
33. The Council says that when Ms A was looking for a care home placement for her mother five care homes had vacancies with two or more rooms, one of these had a double room and all five accepted the Council’s weekly rate. In response to my request for details of the care homes which had vacancies and which would accept the Council’s rate in March 2019 when Ms A was looking for places the Council has provided a copy of a report which confirms that:
• there was one care home, Care Home Y, which had vacancies in March for both residential and specialist dementia care which the Council’s published details on its online portal confirmed it accepted the Council’s usual weekly rate. At points during March care home Y had between two and four vacancies at the same time; and
• the Council has detailed another care home which had five vacancies in the middle of March, another which had between one and five vacancies during March and another which had two vacancies during the first week of March. The Council’s list of care homes does not make it clear that these care homes would accept the Councils’ weekly rate of £490 (at that time) but in response to my further enquiries about this has said that it has an arrangement with a number of the care homes whereby the care homes will accept this rate for a certain proportion of the beds if the person seeking the space asks the Council to contract it on their behalf.
34. I note Ms B says Ms A couldn’t visit care home Y due to an infection in the home but there is no evidence she raised this as a problem with the Council and it appears in fact that this home was closed for a period before the best interests decision had been reached and so before the social worker had looked at care homes with availability at the personal budget rate with Ms A. There is no evidence that Ms A told the Council she was told by three of the other homes the Council says accepted the Council’s rate and had vacancies, told her they did not have places at the Council’s rate.
35. The Council says its usual practice where a family member is involved is to allow the family member to access the computer system in order that they can consider which homes have vacancies. The Council says a social worker can help with this if the family member needs or wants help with the process. The Council says that Ms A told the Council she was willing able to use the computer system to research and identify a care home place for her mother.
36. The Council completed a financial assessment in early April 2019. For Mrs P this includes details of her pension credit, her state retirement pension and her savings. I have not seen the financial assessment in relation to Mr P but have no reason to believe this was not also conducted in April 2019. In its comments on the complaint the Council said that the social worker had conversations with Ms A about Mr and Mrs P’s finances and was aware that the couple did not own a property, that their capital was below the £23,250 limit and that it was therefore unlikely they would be contributing to the cost of the care home provision. It is reasonable to assume this knowledge is what led the social worker to provide Ms A with information about which care homes had vacancies and which accepted the Council’s personal budget rate.

Ms B’s complaint to the Council

37. Ms B complained to the Council on Ms A’s behalf in June 2019. The Council provided its response in August 2019. Ms B was not satisfied with the response and complained again in September 2019.
38. The Council provided a response to Ms A’s letter of complaint dated 17 September in November 2019. In its response the Council said:
• it was not the case that there were no care home places available at the Council’s rate when Ms A was looking for places for Mr and Mrs P in March 2019;
• the social worker had discussed the issue of third party top-ups with Ms A when she identified some care homes with places in March 2019 and provided her with a leaflet about this;
• the social worker went through the care homes with vacancies at the Council’s rate as she was unsure that Ms A was in a position to pay a third party top-up for the homes she identified. As an example, the Council said it believes Ms A had understood that she would be responsible for paying any third party top-upas, in a telephone conversation with the social worker “she requested if she paid for one top-up would the Council fund the other?;
• it listed the names of several care homes that would accept the Council’s rate in March and which had two vacancies; and
• as further evidence the Council said that Ms A had said to the social worker that she might try to work at the care home to offset the top-up charge. The Council argued that Ms A had understood what the top-up meant and signed the agreement to pay this clearly understanding what this meant.
39. Following this response Ms B continued to correspond with the Council asking for copies of documents and further responses. Having obtained these she remained dissatisfied and complained to this office.

Was the Council at fault and did this cause injustice?

40. The Council argues that it sets its standard rate for residential care homes with the Clinical Commissioning Group annually and that this takes into account the fees being charged by local care homes and the increase in the charges they make annually. So, it says the rate its sets reflects the local market. The Council says that five homes were available at the Council’s standard rate and had two or more rooms available when Ms A was looking for placements for Mr and Mrs P in Spring 2019. I have seen evidence from the Council that there were certainly homes which had places available at that time: one of these seems to charge for all beds at the Council’s standard rate and this is clear in the information on the online portal but the Council confirms that others, which had beds available, had beds which it would contract with the Council for at that standard rate. I accept also that the social worker discussed the placements available with Ms A following the best interest decision on 7 March. So, I accept there was more than one placement with places available that would have been suitable for Mr and Mrs P and which would not have required a third party top up. The availability of these placements suggests that the Council had properly set a personal budget which reflected local market conditions.
41. The Council has acknowledged that the information on its portal does not make it very clear that care homes, other than care home Y, had beds available at its standard rate. I have therefore carefully considered whether Ms A was properly advised that there were a number of care homes with spaces that would accept the Council’s standard rate. I note that the social worker’s records confirm that she went through the care homes with vacancies the day before the best interests decision was reached and the Council says this discussion was about those care homes that would accept the Council’s rate. I have not seen anything in the social worker’s notes that confirm this as the notes simply state that the social worker went through some care homes that had vacancies. However, in the complaint Ms B confirms that Ms A approached the same care homes identified by the Council as having vacancies and which accepted the Council’s rate, so I therefore accept that the Council must have provided her with these details. Ms B says that, for the reasons I have outlined above, Ms A was unable to visit care home Y and that the others told her it was not the case that they had beds that were available at the Council’s standard rate. I have therefore considered whether this meant that the Council was not able to provide at least one care home that accepted its standard rate, as it is required, and Ms B’s assertion that the Council should therefore have covered the entire cost of the care home that Ms A identified. Having done so, I consider it would have been reasonable for Ms A to have raised the difficulties she was having with these care homes at that time with the social worker given they were the only ones identified as accepting the Council’s rate and having vacancies. There is no evidence she did and it was clear that she was in a hurry to sort out the placements identifying care home 3 on the same day the best interest decision was reached and leaving very little time to consider the vacancies the social worker identified the previous day. Had she alerted the social worker to difficulties with care home vacancies it seems likely that the Council could have intervened with the care homes who told her they had no vacancies at the Council’s rate and arranged a visit to care home Y if that was a problem later in March. There are no grounds for me to conclude that it was clearly the case therefore that there were no care homes with spaces available at the standard rate and therefore that the Council should have agreed to pay the entire cost at a higher rate.
42. It seems clear that early on the Council accepted that Mr and Mrs P would not be required to fund their own care placement and would qualify for their places to be fully funded by the Council up to its standard rate. In such circumstances the Council is not required to complete a full financial assessment and in any event, I am not persuaded that any fault in this respect resulted in injustice to Ms A given the apparent availability of places at the standard rate.
43. I am satisfied that Ms A had a clear understanding of what a third party top-up entailed. This is because there is evidence which persuades me this was the case including a number of references to the need for a top-up when Ms A spoke to the social worker about care homes she found before the best interests decisions which were higher than the personal budget amount and Ms A’s request that the Council pay one top-up if she paid the other. The Council also says it provided Ms A with a leaflet about top-ups. I can see no evidence of this in its records but on the balance of probabilities, given Ms A’s apparent understanding of the top-ups I consider it very likely that she was provided with this leaflet. The Council says that the social worker provided the leaflet to Ms A in early January though accepts this is not recorded in the case notes. I am also satisfied that the top-up agreement signed by Ms A was clear about what this meant and what she was agreeing to pay. There are therefore no grounds for me to conclude that the Council was at fault in its handling of the third party top-up for care home 3.
44. The needs assessments identified the need for Mr and Mrs P to be placed together as an eligible need. So, it was correct that the search for a placement was for one placement with two beds and, as stated above, the evidence suggests this was available at the time of Ms A’s search.

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Final decision

45. There is no fault by the Council in relation to how it met its duties to make available care home placements for Ms A’s mother and step-father and of the handling of the third party top she agreed to pay.

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Investigator's decision on behalf of the Ombudsman