Summary: Mrs B complained about the way the Council made a decision to move, her aunt, Miss C to a cheaper care home once her funds fell below the capital threshold. We have not found fault with the actions of the Council.

The complaint

1. Mrs B complained that Wiltshire Council (the Council) failed to take sufficient account of her, and Miss C’s wishes to stay at her preferred nursing home once the Council took responsibility for the fees, prioritising cost over Miss C’s best interests. The Council also failed to negotiate realistically with the Care Provider and gave Mrs B misleading figures regarding the fees. Miss C has been forced to move to a new nursing home, losing friendships she had built up over several years and this has caused significant distress to her and Mrs B.

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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 have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs 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

Charging

6. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. The rules state that people who have over the upper capital limit (£23,250) 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. 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.

Choice of care homes

7. The law 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. 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 fee

8. 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 cost to the council of meeting the person’s assessed needs). 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.
9. 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.
• The resident has entered a deferred payment scheme with the council and is willing to pay the top up fee.

What happened

10. Miss C is elderly and has Alzheimer’s. She had been living in a care home (Home D) on a self-funded basis since 2019. In September 2020 Mrs B (Miss C’s niece who has power of attorney) informed the Council that Miss C’s savings were nearing the threshold of £23,250 below which the Council will contribute towards the cost of the care. She wanted the Council to continue funding Miss C’s care at the home
11. In November 2020 Miss C’s funds fell below the threshold. The Council carried out a financial assessment, a care needs assessment and a mental capacity assessment. It concluded she lacked the capacity to make decisions regarding her care and residency due to dementia and short-term memory problems. She was able to express her wishes about staying at Home D, but she was unable to say how long she had been there and the support she needed. The Council concluded that that Miss C needed 24-hour care and so a care home was the best place for her to live.
12. The Council then carried out a best interests decision to decide where Miss C should live. As part of this process the Council spoke to Mrs B. She said that social company was important to Miss C, having access to a telephone to call relatives and living in the area where she had lived all her life. She said Miss C often said to Mrs B that she wanted to stay at her Home D, it was in her best interests to stay there, and it would be an awful upheaval to move her.
13. The assessment concluded that Miss C should reside in a care home with 24- hour care. It noted the options were staying at Home D which may be more expensive or moving to an alternative home which would impact on Miss C’s well-being and she would need a period of adjustment to settle in. It did not specify which option was best.
14. In December 2020 the Council tried negotiating fees with Home D. Miss C’s budget was about £650 per week but Home D would not go below £1200. The family could not afford a third party top-up.
15. In January 2021 it told Mrs B that it had decided to fund a place for Miss C at Home D while it searched for a cheaper option. Mrs B wrote to the Council at the end of January 2021 complaining about this decision. She said it was in Miss C’s best interests for her to stay at Home D and the Council should negotiate with the care provider to reduce its fees.
16. The Council reviewed the care needs assessment and carried out a further risk assessment following Mrs B’s comments. It also asked the care provider again to accept a lower rate, but it refused. The risk assessment identified similar risks to Miss C from moving: deterioration in her mental health and behaviour, at least initially due to a new environment and a risk of catching COVID19.
17. The Council explained again the reasons for its decision to move Miss C: Miss C needs 24-hour care in a care home environment, but Home D will not accept less than £1200 a week and the family was unable to afford a top-up fee of £500 – £600.
18. Home D closed for a month from 18 March 2021 due to a case of COVID19. The Council agreed to continue funding Miss C until Home D opened again. Mrs B complained to us.
19. In April 2021 the Council held a best interests meeting with Mrs B and the care provider to resolve the dispute over where Miss C should live. The Council explained its negotiations with the care provider had been unsuccessful and the figure of £1200 was a reduction from the initial quote of £1300 - £1400 a week. Mrs B pointed out Miss C was paying less than £1200 a week currently. The Council said there are homes who accept the Council’s rates and sometimes care homes will negotiate the level of top-up fee if that is an option, but it could not do any more.
20. Mrs B felt the choices on offer were limited and that Miss C’s wishes were not being taken into account properly. She said Home D was a good choice due to its location and Miss C could maintain ties with family in the area where she had lived all her life. Mrs B and the rest of the family were concerned about the impact of a move on Miss C’s behaviour, pain management and well-being.
21. The meeting concluded that while the best option was for Miss C not to move, all parties understood this was not a viable option due to the cost. The Council agreed to look for an alternative home in the area and suggested one place for the family to consider.
22. Following a fall, the Council reviewed Miss C’s care needs. It concluded she had deteriorated and now required some nursing care, so it increased her personal budget to £850 in early May. Miss C was due to move to a new home in May 2021 but this was delayed due to COVID19. She moved on 21 June 2021.
23. Mrs B said the placement in the new home was costing £900 a week and questioned why she could not stay in Home D. She said Miss C’s dementia had deteriorated and she kept asking Mrs B if she had to stay there. The Council said in July 2021 that Miss C had settled well and was extremely happy at the new home.

Analysis

24. I cannot identify any fault in the way the Council has dealt with Miss C’s care needs. Once it knew her savings were close to the threshold it carried out a care needs assessment and a financial assessment. It produced a personal budget which was less than half the fee proposed by Home D. The Council attempted to negotiate with the care provider to reduce the fee, but it was unsuccessful. That decision is not within the Council’s control, and I cannot criticise it for the outcome.
25. The Council involved Miss C’s family, specifically Mrs B in the assessment and best interests decision and agreed to fund the higher cost of Home D pending resolution of the dispute. It carried out several risk assessments and needs assessments over the next few months. Even when it increased the personal budget to £850 a week, it could not justify paying £1200 a week for Miss C’s care when it could find a suitable alternative placement at a cheaper cost. It agreed to find a care home within Miss C’s preferred area and to minimise the risks of the move as far as possible.
26. The Council has a duty to ensure it gets best value for spending public money and it has to balance this against the needs and wishes of the service-user. I consider the Council properly took into account the cost of the placement in this case alongside Miss’s C’s wishes. I understand Mrs B and the family disagree with the decision, but I cannot conclude it was wrongly made.

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Final decision

27. I have completed my investigation into this complaint as I am unable to find fault causing injustice in the actions of the Council towards Miss C.

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Investigator's decision on behalf of the Ombudsman