Summary: Mrs X complained at the way the Council dealt with Mrs Y’s need for residential care and charging for this. She said she had no choice but to place Mrs Y in a home of her choice because the Council did not act, and she should not pay a top up for this. We find the Council was not at fault.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained that the Council delayed in advising about care homes for her late mother, Mrs Y. This delay meant she has had to pay a top up on the care home fees.
2. Mrs X says it was clear Mrs Y was “getting to the point” of needing residential care in November 2021. She says she asked for nursing home options many times but the Council did not provide this. She had no option but to place Mrs Y in a home of her choice in an emergency situation. She does not accept the top up fee and says the date for the 12 week disregard is unjustified.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
4. 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)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended). We consider Mrs X to be a suitable person to complain on Mrs Y’s behalf.

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How I considered this complaint

6. I considered information from both Mrs X and the Council.
7. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments fully before making this final decision.

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What I found

What should happen

Mental Capacity Act

8. 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.

Mental capacity assessment

9. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

10. 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.
11. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

12. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
13. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

Best interest decision making

14. 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. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
15. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Charging for permanent residential care

16. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their 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.
17. 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.
18. 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. 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.
19. The statutory guidance says a local authority must disregard the value of a person’s main or only home for 12 weeks when they first enter a care home as a permanent resident.

Choice of care homes

20. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home place 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.
21. The council must ensure:

• the person has a genuine choice of accommodation;
• at least one accommodation option is available and affordable within the person’s personal budget; and,
• there is more than one of those options.

22. 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. This is called a ‘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

23. 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.
24. 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.

25. 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

26. Mrs Y had dementia. She was discharged home from hospital in mid 2021. Her son Mr Z, lived with her but worked full time. Mrs X provided support. Although Mrs Y had been able to weight bear and get around on the hospital ward, Mrs X told the Council she was not able to do this at home and had to stay in bed. Mrs Y received discharge to assess (D2A) funding until early August. This meant she did not have to contribute to the costs of her care while she waited to be assessed for continuing healthcare funding (CHC). CHC is not means tested like social care funding and is free to the user. Mrs Y received care at home from care workers and Mrs X and Mr Z provided support too.
27. At the beginning of September 2021, the Council completed a mental capacity assessment. It found Mrs Y did not have capacity to decide about her care. Mrs Y was not eligible for CHC so the Council provided information and the documents necessary for a financial assessment.
28. Just under two weeks later, the Council held a best interests meeting to decide where Mrs Y should live. The senior social worker, Mrs X, a registered mental health nurse (RMHN), Mrs Y’s live in care worker, and the social worker apprentice (SWA) were present. The meeting decided it would be in Mrs Y’s best interests to move to a residential care home. The commissioning team were looking at securing a suitable placement. The meeting noted that Mrs Y would be exposed to risks if she did not live in a care home. Mrs X had looked at some care homes but was not happy with the standards of those on council contract and affordable within Mrs Y’s budget. Mr Z and Mrs X wanted Mrs Y to stay in her own home as long as possible. They said the cost of Mrs Y’s care was not sustainable by the family unless they made arrangements to release funds for this. The Council had agreed to fund live in care at £820pw so family planned to reduce costs by employing a live in care worker. However, they said Mrs Y now also needed a waking night care worker as well. The senior social worker and SWA agreed it would be in Mrs Y’s best interests to remain at home as long as family were able to top up the costs to cover the extra night care. They discussed how the family might release Mrs Y’s funds to cover the cost.
29. Mrs X asked for a copy of the mental capacity assessment. She also requested details of suitable care homes, information needed by the finance team, and confirmation of Mrs Y’s contribution towards her care costs.
30. A week later, Mrs X wrote to the Council asking for the information again. A few days later the Council confirmed this had been delayed by sickness and said the best interest document was yet to be completed. The following week, Mrs X asked again for the information.
31. In late October Mrs X complained about the information which had not been provided and that financial matters were unresolved. The Council replied in November and said:
• A care home directory had been sent to Mr Z in June.
• The commissioning team would only identify three options if someone was actually moving to a care home.
• Finance were not aware of any further information currently required and a new assessment would be needed in the event Mrs Y did move to a care home.
• The Council reviewed Mrs Y’s budget. As two homes it had identified (home A at £745pw and B at £700pw) were less than the current budget of £820pw, it did not agree an increase.
• Mrs X also complained that it took 7 weeks to receive the D2A funding and she had to make many contacts to get a response. The Council apologised for the delay and the stress it caused. It said it would ensure it would take this forward and reflect on how it could have been done differently.
32. Mrs X contacted the Council in late November 2021 advising that Mrs Y now had a live in care worker and PA was becoming distressed when she left her side. She advised that Mrs Y was in hospital as her dementia had worsened and she had become unmanageable. She said it was likely she would need to go into “nursing care”. The Council said it would advise the team responsible for reassessing Mrs Y.
33. In early December, following Mrs Y’s discharge from hospital, an occupational therapist (OT) completed an urgent visit. This was to consider Mrs Y’s moving and handling needs as the care worker had reported that Mrs Y had stopped mobilising suddenly. The care worker advised they were unable to move Mrs Y on their own when she could not stand or move herself. The OT arranged for equipment to assist the care worker in moving Mrs Y when necessary and recommended she be cared for in bed.
34. Just before Christmas, the night care worker called a district nurse who administered medication to Mrs Y to help her settle. Council records show Mrs X declined the offer of an emergency respite care placement and said it would distress Mrs Y. Instead, the Council arranged four care visits a day for six weeks, in addition to the existing arrangement, while it reassessed Mrs Y’s needs. The mental health team were also involved to assess Mrs Y’s medication.
35. Early in January 2022, Mrs X moved Mrs Y to a care home C costing £1350pw without further discussion with the Council. This was less than three weeks after the Council put in place six weeks’ additional home care while it reassessed her needs, and included the Christmas period. When it became aware of Mrs Y’s move, the Council arranged four weeks emergency respite funding. The Council held another best interests meeting at which Mrs X was present. This was to decide whether Mrs Y should return home or move to a care home. Mrs X said she was at breaking point, having explored everything and she wanted Mrs Y to remain at home C. All agreed that it was best for Mrs Y to stay in home C if possible. The Council noted “The family are aware of the top-up fee policy and is happy to pay the top-up”. The family returned the signed financial assessment form and evidence, which the Council received towards the end of January.
36. In early February, the Council arranged an extension to the funding while it arranged a long term placement. Mrs Y had the COVID-19 virus and could not be moved to another home at the time. Council records also note it was waiting for evidence of the family’s ability to continue to top up the fees for the next two years. It noted the family was away on holiday until mid March.
37. The Council proposed home D (£1050pw) and home E (£950pw). Home D had a current vacancy. It agreed the placement at home C with funding of £1050 with a top up of £300pw from the family. The family wanted Mrs Y to stay at home C. The Council completed a financial assessment and disregarded Mrs Y’s property because Mr Z also lived there.
38. When Mr Z returned from holiday, the Council met with him and his brother to discuss the events that had occurred in Mr Z’s absence. The property was no longer disregarded as Mr Z owned a property and would move out of Mrs Y’s property. Mrs Y’s property was now on the market. However, Mrs Y was entitled to 12 weeks property disregard as she was in a permanent placement. Mrs X challenged the start date for the disregard and the Council adjusted it to the date the funding was agreed. Mrs X remains unhappy with that date. The Council is entitled to start this on the day the funding was approved as this was the earliest Mrs Y’s placement could be described as permanent.
39. Mrs X also remained unhappy with the Council’s decision to charge a top up. However, the family was provided with information about charging and top ups early on in these events. The Council also provided information about care homes in June 2021. Mrs Y did not move to a care home until January 2022 so this had been long available before Mrs Y selected the care home. The Council cannot offer details about placements and costs until the move is imminent; it cannot know where vacancies will be at an unknown date in the future. In late December, Mrs X refused an emergency respite placement which the Council would have arranged. I found no indication of any fault in the Council’s approach to this, and it was entitled to expect the family to pay the top up to which it had agreed.
40. Mrs X disputes that the Council offered an emergency respite placement just before Christmas 2021 and says there were no best interest meetings. The Council’s records, completed at the time say otherwise and, on balance of probability, I accept the Council’s position on this.

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Final decision

41. I have completed my investigation and do not uphold Mrs X’s complaint.

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Investigator's decision on behalf of the Ombudsman