Summary: The Council was not at fault in backdating the charges for Mrs X’s care once her change in circumstances was known. There was appropriate consultation with Mrs X’s family at the time 1:1 care was implemented.

The complaint

1. Mr A (as I shall call him) complains the Council charged his mother for 1:1 care without notifying her family; he says as a result she paid far more than she might have done in a specialist unit.

Back to top

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’.. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

Back to top

How I considered this complaint

4. I considered all the information provided by Mr A and by the Council and care provider. Both the Council and Mr A had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

Back to top

What I found

Relevant law and guidance

5. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
6. 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 can get council support to meet their eligible needs. People who have over the upper capital limit must 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.

What happened

7. Mrs X, who has dementia, lived at home with her husband who was her carer. By September 2020 Mrs X’s son (Mr A) and daughter (Mrs B) were concerned Mrs X’s dementia had reached a point where their father could no longer manage her care. The Council’s case recording of their contact says, “(Mrs X) lacks insight into her care and support needs. She lacks full capacity. (Mrs X) requires support over a 24hr period day and night to maintain her safety and wellbeing. Family are very concerned and worried about (Mr X’s) own health and his ability to continue to care for his wife, they are at crisis point.”
8. A social worker completed an assessment of Mrs X’s needs on 16 September and agreed to apply for an initial 2-week respite placement for Mrs X and to consider a longer-term placement. Her notes record that the family was “fully aware” there would be a financial assessment and that Mrs X would need to make a contribution towards the cost of her care.
9. The case recording shows the social worker began looking for short stay dementia residential provision. Once a short placement was agreed at Holyrood House the social worker contacted Mr A and advised there would be £80 a week top up fee above Mrs X’s contribution towards the total weekly fee of £659. The Council wrote to the family explaining Mrs X would pay a maximum weekly contribution of £95.61. The letter said, “Please inform us immediately of any changes in financial or personal circumstances as this may affect the level of contribution. If we are not informed of any changes that we subsequently become aware of we may backdate contributions to the date of that change.”
10. Mrs X went to stay at Holyrood House on 29 September. The carers’ notes detail many episodes of challenging behaviour, often several times a day, over the next month, including aggressive behaviour towards staff and other residents. The care provider documented “Staff are aware to document all episodes of challenging behaviour in order for (Mrs X) to get the support she requires. (Mrs X) has had input from the GP regarding these challenging behaviours and was prescribed PRN Lorazepam to administer, if and when required when staff diversion or distraction techniques are unsuccessful.”
11. On 5 November the senior carer at the home contacted the social worker to ask for approval for increased provision for Mrs X. The notes record, “they are urgently requesting one-to-one support for (Mrs X) as they are struggling to meet her needs”. The carer said calming techniques and distraction had no effect. The prescribed Lorazepam also had little effect.
12. The social worker requested evidence in terms of behaviour charts, risk assessments and safeguarding alerts and for Mrs X’s behaviour to be monitored over a 24-hour period. The team manager authorised 1:1 support from 8am to 8pm for a week in the first instance.
13. On 10 November the care provider requested the 1:1 care be extended to cover the whole 24-hour period or the placement was at risk of breaking down. The team leader authorised the extension of the support and discussed with the home manager the involvement of the local mental health team: the notes say, “requested she request continued assessment, review and request Mental Health Team consider (Mrs X) to be assessed in an Assessment / Treatment Unit - Centre due to concerns being raised with her care and support needs.” The manager agreed to do so.
14. The care home requested an authorisation for a further 4 weeks: in view of the need to minimise staff movement (during the Covid 19 pandemic) the manager said she needed to block-book agency staff. She said without 1:1 the placement would break down. The Council agreed to extend the authorisation for a further two weeks and then review.
15. The social work case recording notes the need to look for a dementia nursing placement as a matter of urgency. A reassessment of Mrs X’s needs was undertaken at the beginning of January.
16. On 4 January Mr X died.
17. At the beginning of March, while a dementia nursing placement was still being sourced, Mrs X deteriorated rapidly and was admitted to a hospital ward. The care home manager said the home could not meet Mrs X’s needs any longer, even with 1:1 care.
18. Once Mrs X was medically fit for discharge, a social care assessor visited her on the ward to consider discharge placement. Mr A was present. He disclosed that Mr X had died in January and also that his mother had more savings than was at first thought: he believed she may be over the threshold for funding all her care already and would definitely be once the house was sold. The social care assessor agreed to make a referral for a financial assessment and explained Mrs X would most likely be a full cost payer.
19. The Council says during the financial assessment it was also disclosed that at the time of Mr X’s death, the family had discovered savings of £21,165 in Mrs X’s name: she had therefore had savings in excess of the threshold at the start of her placement.
20. Mrs X was discharged from hospital to a dementia nursing placement.
21. The Council wrote to Mr A and Mrs B on 25 May 2021 with revised weekly charges of £3431.01 for the period until Mrs X left Holyrood House, reflecting the cost of the 1:1 care.

The complaint

22. Mr A queried the amount of the charges. He said they had never been informed of the implications for the costs of 1:1 care if his mother were to fund her own care. He said the specialist dementia placement where she was now resident charged less.
23. In December 2021 he complained to the Council, “We realise she was not self funding at the time but we should have been informed by Crown Care, or NYCC of the amount of increased costs that would have to be re-paid at some point if she moved onto being a self funder…. At the point of moving mum onto 1 to 1 support we should have been given the option to move her to a more specialist unit”.
24. A team manager responded to the complaint in February 2022. She said when the financial assessment was completed in September 2020, Mr A had declared Mrs X had savings of less than £23,250 and was therefore eligible for local authority funding. She said the case recording showed the 1:1 care had to be put in place to manage Mrs X’s increasingly difficult behaviour and that this was discussed with Mrs B.
25. The team manager said at the financial reassessment in March 2021, Mr A had made the finance officer aware that not only had his mother’s savings increased in January following the death of Mr X, but they had discovered more savings which she had already possessed in September 2020. In effect she had been above the upper threshold from the start of the placement. “As a result, the financial assessments would have to be backdated to September 2020 and revised invoices would be issued to reflect the total cost of care received.”
26. Mr A complained again. He said, “Our complaint is that at no time prior to a letter dated 28/5/2021 were we informed that the cost of her care had risen to £3431.01 a week for 1 to1 care. Having known this we would have queried the amount Holyrood House was charging. At no time were we given any alternative options.” He said when the need arose for 1:1 care, the family should have been given the option of moving Mrs X to a specialist placement which cost less.
27. The team manager responded again. She said “I can confirm the authority has robust procedures in place and comply with legislation set out in the Care Act 2014 to complete updated assessment of finances when a client’s capital/assets change due to a spouse sadly passing away. However, the authority is only able update this and ensure client is charged accurately when the client or their legal representative as in the case of (Mrs X) has provided the relevant information/evidence.” She added that at the time 1:1 care was put in place, the additional costs would not have affected the weekly maximum contribution already being paid and therefore the actual cost was not discussed with the family, although the need for the additional care was discussed.
28. The team manager explained, “The additional support enabled (Mrs X) to be cared for whilst medication regimes could be reviewed and for further assessments to be undertaken with referrals made to Wakefield Mental Services and the Continuing Health Care Team. The cost of 1-2-1 support was £16.50 per hour; provided over a 24-hour period by agency staff as during Covid restrictions staff from the care home groups were unable to move between homes. “
29. Mr A remained dissatisfied and complained to the Ombudsman. He said families need to be informed of the cost implications due to changes in care needs whether they are self-funding or not. He said they would have questioned the level of care more proactively had they known the cost.
30. The Council has provided evidence that as part of its initial assessment screening tool (which took place in July 2020), information is provided for families on all aspects of charging, for example “Information and advice: You have said that you have over 23,250 GBP in savings or investments; this means that either you will arrange your own care or you will pay the full cost of any care and support services arranged for you. More information regarding paying for care is available here”.

Analysis

31. At the time the care home identified Mrs X’s needs could not be met through its ordinary provision, it was the Council’s responsibility as the funding body, and not that of her family, to authorise the additional costs of 1:1 care. It was not fault on the part of the Council not to discuss those costs with the family as Mrs X was already paying the maximum weekly contribution and it had no effect on the charge. Information was available which identified that the “full cost of any care and support services” arranged by the Council was payable by people who had more than £23,250. Similarly, it was not the fault of the Council that the amount of Mrs X’s savings was not disclosed sooner.
32. Mr A says they would have queried the provision and suggests if they had had the choice they would have moved Mrs X to a less expensive, specialist placement sooner. However, as the Council points out, further assessments and a review of Mrs X’s medication were needed before an appropriate placement was identified. The placement was not the choice of the family but of the Council. The Council would not have been meeting its duty under the Care Act had it moved Mrs X without the proper assessments.

Back to top

Investigator's decision on behalf of the Ombudsman