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Gloucestershire County Council (21 004 028)

Category : Adult care services > Charging

Decision : Not upheld

Decision date : 12 May 2022

The Ombudsman's final decision:

Summary: Mrs X complains about the Council’s handling of her husband’s (Mr X) care home placement following his discharge from hospital. There was no fault in the way the Council sought to identify suitable care home placements within Mr X’s personal budget nor that it forced Mrs X into agreeing to make top-up payments for the care home of her choice.

The complaint

  1. The complainant, who I have called Mrs X, complains about the Council’s handling of her husband’s (Mr X) care home placement following his discharge from hospital. Mrs X complains the Council did not identify a suitable care home placement within Mr X’s personal budget and has forced her to agree to paying top-up fees for a care home that meets her and her husband’s needs. Mrs X says her funds to cover the top-up fees are now running out and she is worried about the impact of moving her husband to another care home if the Council refuses to let him stay at his current placement. Mrs X says the Council’s handling and responses to her have caused significant distress and worry. She wants the Council to agree to let Mr X stay at his current care home, cover all future fees and reimburse the top-up fees she has paid since her was admitted.

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The Ombudsman’s role and powers

  1. 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)
  2. We may investigate complaints from the person affected by the complaint issues, or from someone they authorise in writing to act for them. If the person affected cannot give their authority, we may investigate a complaint from a person we consider to be a suitable representative. (Section 26A or 34C, Local Government Act 1974)
  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

  1. I have spoken to Mrs X and considered the information she has provided in support of her concerns.
  2. I have considered the information the Council has provided in response to my enquiries.
  3. Mrs X and the organisation 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

Relevant law and guidance

Mental Health Act - Detention in hospital

  1. The Mental Health Act 1983 (the Act) sets out when a person can by law be admitted, detained and treated in hospital against their wishes.
  2. A person can be detained in hospital under section 2 of the Act for assessment and for treatment after the assessment. A person can be kept in hospital under section 2 for a maximum of 28 days. Before the person is discharged, a social care assessment should take place to see if they have any social care needs the council should meet.
  3. A person can be detained under section 3 of the Act for treatment and kept in hospital for up to six months. The detention under section 3 can be renewed for another six months.
  4. Before the person is discharged, a social care assessment should take place to see if they have any social care needs the council should meet. People released from hospital detention under section 3 will not have to pay for any aftercare they need as a result of the condition for which they were detained. This is known as section 117 aftercare.

S117 aftercare

  1. Anyone who may need community care services is entitled to a social care assessment when they are discharged from hospital. However, Section 117 of the Mental Health Act imposes a duty on councils and NHS clinical commissioning groups (CCGs) to provide free aftercare services to patients who have been detained under sections 3, 37, 45A, 47 and 48 of the Mental Health Act 1983. These free aftercare services are limited to those arising from or related to the mental disorder, to reduce the risk of their mental condition worsening, and the need for another hospital admission again for their mental disorder.

Assessment

  1. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person 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. It must also involve the individual and where suitable their carer or any other person they might want involved.
  2. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

Care Plan

  1. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Personal Budgets

  1. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.

Choice of care homes

  1. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it provides or arranges a particular type of accommodation for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions. This also extends to shared lives, supported living and extra care housing settings.
  2. The person has the right to choose between different providers of particular accommodation provided:
  • the accommodation is suitable to meet the person’s needs;
  • to do so would not cost the council more than the amount specified in the person’s personal budget for the particular accommodation;
  • the accommodation is available; and
  • the provider of the accommodation is willing to enter into a contract with the council to provide care at the rate specified in the person’s personal budget on the council’s terms and conditions.
  1. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or in certain circumstances the resident is willing and able to pay the additional cost (‘top-up’). But a top-up payment must always be optional and never the result of commissioning failures leading to a lack of choice.

Top-up payment

  1. 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.
  2. 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 resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themself.
  1. 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.

Charging for permanent residential care

  1. The Care Act 2014 provides a single legal framework for charging for care and support under sections 14 and 17. It enables a council to decide whether to charge a person when it is arranging to meet a person’s care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
  2. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care. Councils do not need to undertake financial assessments where the person is entitled to free Section 117 aftercare.

What happened

  1. This is a chronology of key events and does not cover everything that happened.
  2. Mr X has a diagnosis of vascular dementia and other health conditions. Until October 2019, he lived with his wife Mrs X. Mrs X has Power of Attorney to act on Mr X’s behalf as he lacks the mental capacity to make decisions for himself.
  3. On 11 October 2019, Mr X was admitted to a mental health hospital under section 2 and then section 3 of the Mental Capacity Act 1983.
  4. During November and December 2019, the Council and hospital had discussions about Mr X’s care when discharged. A hospital senior nurse completed an assessment of need for Mr X on 10 December 2019. A week later, a psychiatrist completed a Care Programme Approach (CPA) assessment to determine what support Mr X needed following discharge from hospital.
  5. The CPA recorded that Mr X should be placed in residential care as it was no longer safe or viable for Mrs X to care for him at home. The CPA also noted that Mr and Mrs X had no other family and therefore the aim was to place Mr X in a care home near to Mrs X so she could visit him often.
  6. On 20 December 2019, the Council started the process of finding suitable care home placement for Mr X based on the support identified in his care and support plan within his personal budget. Mrs X also started looking for care homes near her. She told the Council she had found a care home (Care Home B) that could meet her husband’s needs and had rooms available. Care Home B is in a neighbouring county but within 10 miles’ drive of Mrs X’s home.
  7. The Council wrote to Mrs X the following day to say it had identified five care homes within a reasonable distance of her home that accepted the Council’s contract rate for dementia nursing care. The Council subsequently confirmed the names of the care homes and that it had sent Mr X’s needs assessment to Care Home C as this was Mrs X’s preferred option out of the five homes identified.
  8. On 24 December 2020, Mrs X contacted the Council to say she was unwilling to pay a top-up fee to have Mr X placed in the care home of her choice (Care Home B). She told the Council she felt it was bullying her into agreeing Mr X’s placement at Care Home D which she felt was totally unsuitable. A few days later the Council confirmed it would approach Mrs X’s preferred care home (Care Home B) to ask if it would accept the Council’s usual contract rate for Mr X’s placement.
  9. Care Home B said it would not accept the Council’s contract rate but would slightly reduce the placement rate to enable Mr X’s placement. The Council received written confirmation from Mrs X on 22 January 2021 to say she was willing to accept the Council’s contract rate in payment towards Mr X’s placement at Care Home B, in addition to NHS Funded Nursing Care (FNC) and her top-up fee of £202 per week. Mr X moved into Care Home B a week later.
  10. In late January 2021, Mrs X contacted the Council to complain about the amount of top-up fees she is having to pay for her husband’s placement. Mrs X reiterated her concern that the Council forced her to agree to paying the top-up fee because it had failed to identify a suitable care home within Mr X’s personal budget. Mrs X was also unhappy her husband was not eligible for NHS Continuing Nursing Care (CNC) and felt this was being unfairly blocked because of his entitlement to section 117 aftercare. Mrs X also asked the Council to consider providing an additional eight hours of nursing care for her husband, as recommended by the NHS Clinical Commissioning Group in the county where Care Home B is located.
  11. The Council responded to Mrs X’s concerns on 23 February 2021. It explained it was funding Mr X’s placement based on his personal budget and any additional payments Mrs X was making were voluntary contributions she agreed to make for the care home of her choice. The Council explained it had not been advised of the CCG’s recommendation for additional nursing care, but would undertake a reassessment to determine what, if any, further care was needed. Mrs X remained unhappy with the Council’s response and made a further complaint to it about this issue. She said Care Home C, which the Council had identified, was unwilling to take Mr X and other care homes the Council had suggested were too far away for Mrs X to visit regularly.
  12. On 17 March 2021, a Social Worker from the Council visited Mr X at Care Home B to complete a reassessment of his needs. Mrs X was present and the manager of the care home also joined part of the discussion. Mrs X reiterated her concerns about the financial strain being caused by her husband’s top-up payments. She told the Social Worker she had been bullied by the Council into agreeing to pay top-up fees she could no longer afford. The Social Worker explained the Council had identified several suitable care homes within the Council’s area that were willing to accept Mr X. Mrs X disputed this and said these care homes were located too far from her home. The Social Worker pointed out that two of the care homes suggested were less than 15 miles from Mrs X’s home.
  13. The care home manager then joined the discussion and offered to reduce the weekly top-up fee payable for Mr X to the amount he received from his state pension. Mrs X declined this offer as she felt it was still too expensive. She also said she felt it unfair that Care Home B should lose out financially because the Council was refusing to cover all her husband’s placement costs. The care home manager explained they were unable to reduce the amount any further. The Social Worker concluded Mr X did not need any additional nursing care following their assessment.
  14. Mrs X made further complaints to the Council about the same issues in June 2021. Mrs X said she was finding it increasingly difficult to meet the top-up fees for her husband’s placement. She told the Council she was unwilling to keep paying the additional fees and worried this meant her husband would have to be moved to another care home within his personal budget. Mrs X was deeply concerned about the impact of moving her husband when he was so well looked after and settled at Care Home B.
  15. The Council issued its final complaint response to Mrs X on 17 June 2021. It explained it had already responded to her concerns previously and had nothing further to add. It explained it could reassess if Mr X’s financial situation had changed and would only seek to move him to another care home if that was in his best interests. The Council signposted Mrs X to the Ombudsman if she remained unhappy with its response.
  16. Mrs X brought her complaints to us shortly after this.

Was there fault causing injustice?

  1. Based on the evidence seen, I am not satisfied there was fault in the Council’s handling or approach in this case.
  2. Mrs X has told us she needed to move Mr X out of the mental health hospital quickly because there were safeguarding risks. The hospital investigated and responded to Mrs X’s concerns about poor communication and lost items of clothing. Mrs X says she also reported concerns about inappropriate restraint of her husband. The response from the hospital does not however include information about the restraint element of her complaint. I have equally seen no evidence to suggest the Council was pressuring Mrs X to move Mr X to a care home as Mrs X alleges.
  3. Mrs X says the Council’s failure to identify a suitable care home placement within Mr X’s personal budget meant she had no choice but to agree to placing him at Care Home B, at additional cost. It appears from the evidence that Mrs X had identified Care Home B as her preferred option soon after the Council first started to look for suitable care home placements. I am not persuaded the Council failed in this respect as it confirmed at least four other care homes were willing to take Mr X.
  4. Mrs X also says the Psychiatrist’s CPA stated it was essential to Mr X’s wellbeing for him to be placed in a care home close to Mrs X. The CPA I have seen does not explicitly state this. It says the aim is for Mr X to be placed close to Mrs X, which is not the same. Two of the care homes the Council suggested are located less than 15 miles from Mrs X’s home. There was no fault in the Council’s handling in this respect.
  5. Mrs X is unhappy with the Council’s policy that a reasonable distance for a care home placement is anywhere within the Council’s area. Mrs X has compared this to the neighbouring council’s policy (where Care Home B is located) which defines reasonable distance as within 10 miles of a next of kin or carer’s home. There is no specific statutory guidance on this point. Councils are therefore able to establish their own policies around reasonable distance. I cannot find the Council at fault for having the different policy to its neighbouring council.
  6. Mrs X is worried the Council will make her husband move to another care home. I have seen no evidence to suggest the Council would do this without first checking Mr X was well enough to be moved. The Council has also said it would need to consider any changes to Mr X’s finances before acting on Mrs X’s inability to afford his top-up fees now. This is the action I would expect from the Council in these circumstances.
  7. I understand Mrs X has found the process of her husband moving into a care home very distressing. There is no doubt of the impact of being separated from one’s spouse/loved one after many years together. I have not however found any evidence of fault in the Council’s handling that would warrant recommending remedial action.

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Final decision

  1. I have completed my investigation and found no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman

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