Kirklees Metropolitan Borough Council (22 008 897)
The Ombudsman's final decision:
Summary: Mrs X complained about the way the Council charged Mr Y for his care and about the quality of the care it provided. She said this caused stress and anxiety to them both as they had no say about the home he moved to, the poor standard of care and the financial pressure it caused. We find no fault in the Council’s actions.
The complaint
- Mrs X complained on behalf of her husband, Mr Y, that the Council:
- Took too long to invoice Mr Y for his care fees;
- Gave Mr Y no choice about the home he went to; and
- Placed Mr Y in a “sub-standard” care home.
- Mrs X says this caused stress and anxiety to Mr Y and herself, from the lack of say about the placement, the poor standard of care and financial pressure. They do not have sufficient funds to pay the delayed invoice.
The Ombudsman’s role and powers
- 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)
- 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)
- 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 Mr Y’s behalf.
How I considered this complaint
- I considered information from both Mrs X and the Council.
- Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
Background
Choice of care homes
- 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.
- 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.
- 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
- 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.
- 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.
- 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
- 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.
- 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.
- 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
What happened
- In February 2022, Mr Y was admitted to hospital. Around six weeks later he was discharged to care home A. This was for a six week short stay while his needs were assessed and a long term placement identified. Mrs X expressed concerns about the cost to the Council.
- Mrs X was also concerned about the quality of care home A, and wanted Mr Y to go to another home, B, where her father was resident. However, this home, like several others, was unable to accept Mr Y as it said it was unable to meet Mr Y’s needs. Mr Y had particular care needs which significantly limited the options. I have not detailed these here for reasons of confidentiality, but I have considered the evidence and am satisfied there was sufficient reason to support this view.
- Council records show that a social worker explained to Mrs X about charging at the beginning of March, before Mr Y was discharged. They said he would need a financial assessment because the care would be chargeable from admission. It noted Mrs X had said Mr Y had less than £23,250. Mrs X explained Mr Y had a car loan and paid half the mortgage, so she was worried about paying for his care. The social worker directed her to organisations that could provide support with this and confirmed Mr Y was entitled to a financial assessment because he had under £23,250. The financial assessment would determine how much he would have to pay towards his care. The social worker provided Mrs X with details of where to complete the financial information for the financial assessment. At the beginning of April, the Council also provided this information in a letter. Mrs X submitted the financial assessment which found Mr Y would be charged £408.70 weekly. The Council wrote to Mrs X asking her to submit evidence of the financial information to complete the financial assessment. This letter advised that without this information, Mr Y would be charged the full cost of his care. This is standard practice.
- In mid May, the Council received the evidence from Mrs X and wrote to confirm Mr Y’s contribution would be £371.14 per week with a small annual uplift from April. Mrs X queried why it had not included credit cards and loans in the financial assessment. The Council advised that this was in line with the charging rules in the Care Act 2014. This is correct. Mrs X received the first invoice at the end of July requesting payment within 21 days. Mrs X complained and the Council extended the date for payment to 1 October in view of the delay in issuing the invoice. It also offered to discuss an instalment plan. This was a suitable remedy. Mrs X had known how much Mr Y was expected to contribute since before he moved to the home and in fact, this reduced with the financial assessment. The Council had also given the exact amount soon after Mrs X submitted evidence to complete the financial assessment. It could not have done this sooner since it was reliant on this information to determine Mr Y’s contribution. I found no fault here.
- Mrs X complained about issues of quality at the home, and it is clear there were some issues. However, Mrs X decided not to move Mr Y as her concerns were being dealt with. By its nature, this was a difficult and stressful time for them both and some of Mrs X’s concerns reflected that. Home A was responding to her complaints, and since the placement was short term, this was not enough to amount to fault.
- At the end of May 2022, Mr Y left the home to move to a long term placement which required a further financial assessment as the rules are different. Again, the Council did not provide Mrs X and Mr Y with any other option. This was because of Mr Y’s particular needs. Mrs X disagrees with the Council’s and care home A’s view of his needs, but I cannot question this. The Council agreed to pay the top up for care home B as Mrs X and Mr Y had no choice over the selection. Mrs X takes this as an “admission of guilt and negligence” however, this is what the Council is required to do if it cannot offer a lower priced option. I found no fault here.
Final decision
- I have completed my investigation and do not uphold Mrs X’s complaint.
Investigator's decision on behalf of the Ombudsman