Summary: Mrs F complained about the Council’s decision to apply a top up on her mother’s care charge contributions. She also complained about the advice and support she received. We found fault in the way the Council applied its top up charge and the support it provided Mrs F with finding suitable care homes for her mother. The Council agreed to apologise to Mrs F, remove its top up charges, and make payment to acknowledge the injustice this caused her.

The complaint

1. The complainant, whom I shall refer to as Mrs F, complained about the Council’s handling of her mother’s (Mrs X) care charges. She said it:
• communicated with her poorly as it failed to provide enough clear and written advice and information regarding Mrs X’s care arrangement and care costs; and
• made errors in the relevant dates for Mrs X’s care costs, failed to apply the 12-week property disregard and wrongly applied a top up on her residential care contributions.
2. Mrs F also complained the care and support Mrs X received in her home, before she was placed in a care home, was unsuitable and the Council did not do enough when Mrs F reported concerns.
3. As a result, Mrs F said she and Mrs X experienced distress and uncertainty, Mrs X had to be placed in respite care which impacted her quality of life and life expectancy, and Mrs F was forced to sell Mrs X’s home to pay for her care home fees.

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The Ombudsman’s role and powers

4. 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)
5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. If we are satisfied with an organisation’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

7. As part of my investigation, I have:
• considered Mrs F’s complaints and the Council’s responses;
• discussed the complaint with Mrs F and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the law and guidance relevant to the complaint.
8. Mrs F and the Council had an opportunity to comment on a draft version of this decision. I have considered the comments I received.

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What I found

Relevant law and guidance

Care Plan

9. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. 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

10. 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.

Charging for permanent residential care

11. 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.
12. 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.
13. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person is entitled to access council support to meet their eligible needs. People who have over the upper capital limit are expected to pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

Charging for social care services

14. Where a council has decided to charge, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. Councils have no power to assess couples according to their joint resources. Each person much be treated individually. A council must not charge more than the costs it incurs to meet a person’s assessed eligible needs.
15. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee (MIG). This is set by national government and reviewed each year. A council can allow people to keep more than the MIG. (Care Act 2014 )
16. A council’s approach to charging should be clear and transparent, so people know what they will be charged. (Care and Support Statutory Guidance 2014, section 8.2)
17. Councils should also ensure there is enough information and advice available in a suitable format for the person’s needs, to ensure they understand any contributions they are asked to make. (Care and Support Statutory Guidance 2014, section 8.3)
18. Councils must regularly reassess a person’s ability to meet the cost of any charges to take account of any changes to their resources. This is likely to be on an annual basis, but may vary according to individual circumstances. (Care and Support Statutory Guidance 2014, section 8.17)

Top-up payment

19. 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.
20. 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.
21. 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.

What happened

Background

22. Mrs X was an owner occupier of her home in 2021.
23. In spring 2021, she had a stroke and went into hospital. Her daughter, Mrs F, has acted to support Mrs X and her views since but she did not have a power of attorney (POA).
24. The hospital told Mrs F it was discharging Mrs X into a care home. Mrs F said the hospital did not suggest a care home, so she proposed the nearest to her home.
25. Mrs X spent six weeks at the care home, but Mrs F did not believe Mrs X was receiving the support she needed. She asked for her to be moved to her own home and for the Council to provide domiciliary care for her.
26. The Council agreed Mrs X could be moved to her home and provided carers to meet her personal care needs. This was 24-hour care.
27. Mrs F had concerns about the care Mrs X received in her home and the impact this had on Mrs X and her carer. She asked the Council to arrange for respite care for Mrs X, and questioned which care home could best meet her needs.
28. Mrs F said the Council did not suggest any care homes, but she had found a care home (the Care Home) which could meet Mrs X’s needs and proposed this to the Council. Mrs F also provided the Council with details about Mrs X’s Lifetime mortgage. The terms of the mortgage said Mrs X was required to sell her home if she went into a care home permanently, and no second charges could be made to her property.
29. The Council agreed to move Mrs X into the Care Home for respite care. It also provided Mrs F with provisional information about Mrs X’s care charges. It said:
• Mrs X was required to pay a contribution toward her care charges based on her income;
• once the Council had decided if Mrs X should remain permanently in the Care Home, she would be provided its usual funding of £558.94 per week towards her residential placement (less her personal income contribution). This would be for 12 weeks during the property disregard period;
• Mrs X would have to pay a top up of the care home costs of £353.06, which consisted of the difference between the Care Home’s charges and the Council’s allocated budget for Mrs X;
• after the 12-week property disregard period, Mrs X would become a self-funder as the value of her property would be above the capital threshold for Council support; and
• normally, the Council would consider a Deferred Payment Agreement to support Mrs X until her home was sold. However, as her mortgage provider did not allow a second change, it suggested Mrs F contacted the mortgage provider to find out if a second charge could be allowed.
30. Four weeks later the Council told Mrs F it believed Mrs X should remain permanently in the care home.
31. The Council considered Mrs X’s capacity and found she did not have capacity to make decisions about her welfare or finances. It then arranged a best interest meeting in which it found it was in Mrs X’s best interest to remain permanently in a care home.
32. In late 2021, the Council shared a financial assessment for Mrs X’s respite care and a financial assessment for Mrs X’s permanent care with Mrs F. These showed Mrs X was required to make contributions based on her income and to top up the difference between the Council’s funding and the Care Home’s charges.

Mrs F’s complaint

33. In early 2022 Mrs F complained to the Council about its handling of Mrs X’s care arrangements and her assessed contributions toward her care costs. She said:
• she had been passed to the Council’s community team on three occasions over a seven-month period and had three social workers, but Mrs X had not had enough care support in her home so she had no alternative other than residential care;
• the Council’s final decision on Mrs X’s capacity was made after her respite care ended, and she would therefore be charged for care charges retrospectively;
• the 12-week property disregard should apply and she could not understand why Mrs X was being asked to pay a top up toward the Care Home costs, in particular as Mrs F had quickly put Mrs X’s home up for sale but it had not been sold; and
• Mrs X had since been diagnosed with dementia by the Primary Care Team, but she believed this should have happened sooner.
34. The Council acknowledged Mrs F’s complaint, and two weeks later told her it was reviewing the financial assessments.
35. Shortly after, the Council sent Mrs F an invoice for the cost of Mrs X’s care contributions while in the Care Home. This included her assessed and her top up contributions.
36. The Council did not provide a response to Mrs F’s complaint, but a month later it arranged a call with her and apologised for the delay. It explained its officer was sick when the case had been allocated to him.
37. The Council’s senior social worker also had a call with Mrs F shortly after in which she was provided with a response to her concerns about the financial assessments. This led to a change in the dates the Council charged Mrs X for under respite care and led to a small reduction her care charges.
38. In its final response to Mrs F, the Council said:
• the 12-week property disregard had been applied, but a deferred payment agreement could not be provided because Mrs X’s mortgage provider would not allow a second charge on the property; and
• it acknowledged the errors in the dates of Mrs X’s care charges, it had since corrected the dates to start from when it made its final decision on her capacity and permanent residence in the Care Home.
39. The Council also shared a final breakdown of Mrs X’s care charges with Mrs F.
40. Mrs F was unhappy with how the Council had handled Mrs X’s care, the advice it had given her, and Mrs X’s care cost contributions. She asked the Ombudsman to consider her complaint.

Analysis

Care charges

41. The Council’s financial assessments and invoices to Mrs F shows how it assessed Mrs X’s contributions towards her residential care charges. This showed Mrs X was required to pay:
• a contribution based on her income, which left her with her personal expenses allowance; and
• a top up fee for the difference in cost between the Council’s funding rate for residential care and the Care Home’s charges.
42. Also, the Council updated its financial assessment to correct the date of Mrs X’s care charges to the date of its best interest decision, which found she should be in permanent residential care.
43. I found the Council correctly assessed Mrs X’s contributions based on her income and applied the 12-week property disregard. However, it wrongly asked her to pay the top up contribution. In reaching my view I am conscious:
• the Council commissioned Mrs X’s care in the Care Home;
• the Council advised Mrs F about the care charges and the top up fee. However, its advice did not include an offer of care in a cheaper residential care home which was within Mrs X’s allocated personal budget;
• regardless of whether Mrs F agreed to a Deferred Payment Agreement for the care charges during the 12-week property disregard period, she had not been given a genuine choice and advice about Mrs X’s options to make such a decision; and
• Mrs X and Mrs F did not refuse alternative care homes which were cheaper.
44. When the Council did not find, or offer, Mrs X any suitable care homes within her personal budget which could meet her care needs, it should have increased Mrs X’s personal budget to match the cost of the Care Home. Its failure to do so was fault, which meant its care charges and subsequent invoices for Mrs X’s residential care were incorrect.

Communication and advice

45. Mrs F complained the Council failed to provide her with enough advice and support to keep Mrs X in her home and to obtain a care home suitable to meet her needs.
46. The evidence shows the Council had three different social workers allocated to the case during a seven-month period, which was due to staffing changes within the Council. Each worker provided some support and responded to Mrs F’s questions.
47. I acknowledge the changes in social workers allocated to Mrs X’s case may have had some impact on the communication and advice Mrs F received from the Council. In particular in relation to her request for help with finding suitable care homes which could meet Mrs X’s assessed care needs.
48. While the Council cannot control when staff leaves it service, it should ensure there is consistency in the service and advice it provides. I found the Council did not support Mrs F enough with finding a suitable care home to meet Mrs X’s assessed care needs in 2021. As a result, Mrs F found the care homes herself and asked the Council to commission these. This caused Mrs F some uncertainty.

Domiciliary support

49. I understand Mrs F was not satisfied with the level of support the Council provided Mrs X in her home in the period before she moved to the Care Home for respite care. She believes Mrs X may not have required residential support had the Council provided her with enough support in her home.
50. I could make a finding on this issue. While Mrs F shared her concerns about the support to Mrs X’s social workers, her complaint to the Council related primarily to the care charges and the lack of communication and advice she received. Whether the level of care Mrs X received in her home was suitable has therefore not been considered under the Council’s complaints process.
51. I acknowledge Mrs F did not complain about Mrs X’s domiciliary care support at the time as she had since been placed in the Care Home, and Mrs F was focussed on ensuring the care charges were appropriate and how these could be paid.

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Agreed action

52. To remedy the injustice the Council caused to Mrs F and Mrs X, the Council should, within one month of the final decision:
1. apologise in writing to Mrs F and pay her £150 to acknowledge the distress and uncertainty she experienced as a result of the Council handling of Mrs X’s care charge contributions and its social workers limited support for her requests.
2. pay Mrs F £100 to acknowledge the unnecessary time and trouble she had to bring her concerns to the Council’s attention.
3. provide Mrs F with an amended invoice for Mrs X’s care charge contributions for the 12-week property disregard period in late 2021 and early 2022, which removes the Council’s top up charge.
53. Within three months of the final decision the Council should also:
1.  
2.  
3.  
4. review its existing policy to ensure a consistent approach on top up charges. This includes where an individual has been assessed to be able to afford a more expensive care home, has refused the Council’s offer of a care home and agreed to meet such charges in writing. The Council has no duty to source care arrangements for service users who are self-funders of their care.
5. provide training to its staff to ensure timely accurate advice and guidance is provided to residential care users, or their representatives, regarding top up charges. And, where applicable, requests for support with finding suitable care homes are actioned without delay.

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Final decision

54. I have completed my investigation with a finding of fault which caused an injustice.

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Investigator's decision on behalf of the Ombudsman