Summary: There is no evidence the Council can show it was able to offer a genuine choice of residential accommodation to meet Mr X’s needs when he was assessed as requiring 24-hour care. The Council agrees to waive the top-up fees payable from when Mr X went into the home until the date Mrs X joined him there.

The complaint

1. Mrs A (as I shall call her) complains that the Council did not make available to her father (Mr X) a genuine choice of residential accommodation available without a top-up fee. She says as a result his family was asked to pay a significant amount more than necessary for his residential care before Mrs X also moved into the home and they became self-funding residents.

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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’. 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)
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)

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How I considered this complaint

4. I considered the information provided by Mrs A and the Council. Both parties had an opportunity to comment on a draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. 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.
6. 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.

7. 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.
8. 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.
9. 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.
10. 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.
11. The Council produces guidance on its website on paying for residential care. It says, “Guidance from the Department of Health and Social Care emphasises that residents should be allowed to exercise choice about their care. These choices will include a choice to enter our residential care, as well as the choice to enter care homes where the fees are higher than assessed by us, but relatives or carers wish to pay the difference…. You can also choose a more expensive home if there is someone else, like a relative or friend, willing to pay the extra cost, but be sure that this arrangement is likely to last or you may have to move again later. These are commonly referred to as 'top-ups' or 'third-party payments'.

What happened

12. Mr X lived at home with his wife, who is 96 (Mr X is 90). After a brief hospital stay in May 2022, Mr X was discharged home with a care package of two care calls a day to help with personal care, dressing, catheter care and toileting. He was unable to manage the stairs and required walking aids to help him move round his house. A social care assessment noted that Mrs X was no longer able to support Mr X as she was also “very frail” and had been referred to the Council for support due to her own needs.
13. Mr X was readmitted to hospital in June. The nurse who saw him prior to admission reported that the home environment was no longer suitable to support his needs.
14. Mrs A contacted the Council’s brokerage unit direct on 17 June to ask about care home vacancies. An officer sent her a list of homes and an email link to the adult social care webpages which describes the residential care home rates and top-up fees.
15. The Council’s records show correspondence between Mrs A and the allocated social worker in respect of care home placements for Mr X. Mrs A emailed the social worker on 25 July saying she planned to visit three named homes in Buxton as well as another care home closer to Mrs X’s home. Mrs A also asked the social worker to send her father’s assessment to a named home and said she still hoped for a place to be available in a care home (care home A) closest to her mother’s house.
16. The social worker emailed to say care home A could take Mr X on a short stay placement but at £950 a week, of which Mr X would pay £493; “After the first 3 weeks, (Mr X) would then have a full financial assessment and likely to have to contribute more depending upon his pension income”. The social worker sent Mr X’s assessment to two other homes named by Mrs A.
17. Mrs A paid a retainer to care home A to secure a bed as Mr X’s discharge from hospital was slightly delayed. On 3 August Mrs A emailed the social worker to say her father was on his way to care home A.
18. On 4 August the social worker wrote to Mrs A. She said, “I have completed the purchase order as below for 3 weeks – after that time I do not know what we (DCC) will fund as it depends what alternatives are available at that time.” In response to a further query from Mrs A, the social worker replied, “Can you remind me if your father has > £23,250 cash as if so he would self-fund the care bed at (care home A) after the 3 weeks. I have a feeling that he doesn’t have > £23,250 If not then DCC would need to be asked to fund it and the top up issue would be relooked at – i.e. if there was an alternative care home that could meet his needs that cost less you would need to pay the difference”.
19. The social worker explained to Mrs A that the hospital discharge was for a short-term placement only. If Mr X needed a long-term placement, she said it was “likely” that a cheaper alternative than care home A was available so a top-up fee would be applicable.
20. A social worker visited Mr X in the care home on 19 August to complete a needs assessment and consider the long-term plan for Mr X’s care. The outcome of the assessment was that Mr X’s needs would be best met in a residential placement. He added, “A financial assessment is required for long term residential. (Mrs A) is the financial representative. … (Mr X) has below £23250 in capital. currently (care home A) charges £950.00. hospital discharge had identified (another care home ) in Buxton as an alternative for £750. (Mrs A) said Buxton is too far, (Mr X)’s wife would not be able to visit as often; it was too inconvenient for the family. (Mr X) said he felt settled at (care home A) “. The social worker noted that care home A was close to Mrs X’s home and she would be able to visit regularly by taxi. Mrs A says the family asked at the assessment for the Council to pay the full fees.
21. On 11 October Mrs A complained to the Council about the top-up fee. She said “DCC are required to offer at least one suitable-for-needs care home and pay for it after means testing and the family would assert that (care home A) is the only offered care placement that satisfies not only my father’s physical needs but also his social and emotional needs”. She said to her knowledge, at the time her father was admitted to care home A, there was only one other available bed which was too far away for Mrs X, who was 96, to make such a long journey often (about 18 miles or 40 minutes by road). She said Mr and Mrs X had been married for 65 years and it would compromise Mr X’s health and wellbeing if they were prevented by distance from seeing each other. She added, “The family are not wealthy and at no point did we agree to pay a top up fee.”
22. The Council responded to the complaint. The group manager wrote to Mrs A and said she understood that the family had refused assistance from the social worker to look for alternative placements. She said she could not therefore uphold a complaint that no other suitable placements were viable and available as the Council had not been given the opportunity to look for them. She concluded that Mr X had made an informed choice, with the knowledge of the home’s fees and top-up fees, to move into care home A.
23. Mrs A complained to the Ombudsman. She said at no time had they agreed to a top-up fee. She said the Council was wrong to say the family had refused to look at less expensive placements. She said, “In our view, they had accepted that there were only two care placements in the area by offering to pay the whole cost of the (care home in Buxton)”.
24. The Council accepts there is a limited number of care home placements available in the area of the county where Mr X lived. It says it is not unusual for placements to be made across the county for that reason.
25. The Council says it “had not been able to carry out full and extensive enquiries, to consider all viable or available options. This was because a consistent decision had been taken by (Mr X) and his family, that they did not want Mr X to move to any accommodation other than (care home A). The DCC maximum weekly fee set to fund residential placements was insufficient to fully fund the placement at (care home A).”
26. The Council adds, “Early within the process (Mrs A) had voiced her homes of choice to be either (care home A) or (another care home). Both homes charge a higher rate of fee than the Derbyshire Funding rate.”
27. The Council says that once a suitable placement was identified it would have explored all options to enable family relationships to be maintained.
28. Mrs X moved into care home A on 8 December 2022 and since the sale of their house Mr and Mrs X have funded their own care. The Council agreed to accrue the debt owed until the property was sold.

Analysis

29. It was unfair of the Council to suggest Mrs A would only consider one of two homes, given her email to the social worker at an early stage explaining she was about to visit several homes in the area.
30. The Council said it was denied the opportunity to consider other suitable placements and for that reason it should not be liable for the cost of the care in a more expensive setting than the amount it would usually pay.
31. It is arguable that if the Council had made any “full and extensive” enquiries of the other options available, even if one had been able to be identified in an area where the Council acknowledges there is limited availability, by the time that process was completed Mr X would have been more settled in care home A than he was at the time of the assessment.
32. The Council would then have had to assess whether it was in Mr X’s interests to move him again. He had already undergone several moves – from home to hospital, back home, readmission to hospital, then to care home A – in the space of four months. He was reliant on the visits of Mrs X, by then 96 and unable to travel distances, to meet his social needs.
33. The Council has acknowledged the limited number of care home placements in this part of its area.
34. In the circumstances of Mr and Mrs X, it was difficult to see how the Council could have concluded there was a suitable alternative available at its usual rate.

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Agreed action

35. Within one month of my final decision the Council will waive the top-up fees for Mr X’s placement at care home A (from when Mr X went into the home until the date Mrs X joined him there) as there is no evidence there was at least one affordable and suitable option of accommodation at the time of Mr X’s assessment for long term care.
36. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. I have completed this investigation. I found there was fault by the Council causing injustice to Mr X, which the completion of the recommendation at paragraph 35 will remedy.

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Investigator's decision on behalf of the Ombudsman