Summary: The Council was not at fault for how it explained and arranged Mrs X’s care charges. However, it was at fault for a delay in sending out her financial assessment forms. This meant her daughter received a much bigger bill than she would have if there had been no delay. The Council has agreed to apologise, make a symbolic payment to recognise the injustice caused, and explain how it will avoid similar delays in future.

The complaint

1. The complainant, whom I refer to as Mrs X, moved into a care home in March 2022. She pays a contribution towards her care home fees, the Council pays a set amount, and her family pay a ‘top-up’ to cover the rest.
2. Mrs X is represented by her daughter, whom I refer to as Mrs Y.
3. Mrs Y complains that:
• She was not given the right information about who would be responsible for fees before Mrs X went into the care home. She did not know Mrs X’s contribution and the top-up would be separate.
• The Council delayed doing a financial assessment. This meant there was a delay before she found out about the separate top-up fee, and meant she received a very large bill six months after Mrs X had moved into the home.
• Mrs X should not have to pay a contribution when the Council had already agreed to cover the cost of the care home fees.
4. Mrs Y says both she and Mrs X have experienced a financial injustice, as they now owe significant back-payments to the Council. She says Mrs X may also have to move to a different care home, which would cause her distress.

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The Ombudsman’s role and powers

5. 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)
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. I considered information from Mrs Y and the Council. Both had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

8. Sections 14 and 17 of the Care Act 2014 provide a legal framework for charging for care and support. They enable a council to decide whether to charge a person when it is arranging to meet their care and support needs.
9. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014. Councils should also have regard to the government’s ‘Care and support statutory guidance’.
10. When a 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. This involves calculating their income and capital (while disregarding specific earnings set out in the Regulations).
11. Councils will decide the amount which is sufficient to meet a person’s needs (their ‘personal budget’). If a person chooses to go into a home that costs more than their personal budget, and a less expensive home is available which can also meet their needs, the council can still arrange a place at the more expensive home if:
• the person can find someone else (a ‘third party’) to pay a top-up; or
• the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themself.
12. In such circumstances, the council must ensure the person paying the top-up enters a written agreement and can meet the extra costs for the likely duration of the agreement.

What happened

13. In February 2022, the Council discussed care charges with Mrs X’s family. It recorded that they were aware that it would conduct a financial assessment.
14. In March, the Council emailed Mrs Y a copy of its ‘Guide to social care charging’ and asked her to sign it. The guide said:

[If] you are moving into a care home it is expected that you should make a financial contribution towards the cost of your services if you can afford to do so.

We only ever ask people to pay an amount that they have been assessed as being able to pay.

Third-party top-up fees … are extra charges required by some care homes which are usually paid by a family member … Often they are paid because someone wishes to move into a home which is more expensive than one the council is able to fully fund … In these cases, the contribution is usually the difference in fees.

15. The Council’s letter accompanying the guide said, “To confirm, we have discussed the top up fee at [the care home] and you understand that this is covered by the family of [Mrs X]”.
16. Mrs Y signed the guide and returned it to the Council. Mrs X went into the care home shortly afterwards (in mid-March).
17. In late May the Council completed Mrs X’s support plan. It recorded that “there had been some issues with [the plan] on the system”.
18. Mrs Y says she did not receive the financial assessment forms until mid-July. The Council has no record of when it sent the forms.
19. Mrs Y provided the completed forms at the end of July; however, the Council decided it needed more evidence from her. She provided this at the end of August and the Council completed its financial assessment in early September.

My findings

20. The Council is entitled, under the Care Act and accompanying Regulations, to charge for care it arranges. If someone’s capital is below a certain amount, the Council should only charge them what they can afford out of their income.
21. Although Mrs Y says the Council agreed to fund Mrs X’s placement, it told her beforehand that it expects people to pay towards their care if they can. It then completed a financial assessment and decided Mrs X could afford to contribute. As the law allows it to do this – and as it was explained in advance – there was no fault in how the Council charged Mrs X for her care.
22. On balance, there does appear to have been a delay in sending the financial assessment forms to Mrs Y. I have based this on Mrs Y’s own account, the Council’s delay in finalising Mrs X’s support plan, and the lack of evidence to the contrary. This delay was fault by the Council.
23. There was no financial injustice to Mrs X or Mrs Y, as they were liable to pay towards the cost of Mrs X’s care from March 2022 onwards anyway, regardless of when the Council completed the assessment. But it is likely that Mrs Y experienced distress when she received a bill which – because of the delay – was significantly higher than it would otherwise have been. The Council should provide her with a remedy for this distress.
24. Although Mrs Y complains that the Council failed to properly explain third party top-ups to her in advance of Mrs X’s placement, I have considered the evidence provided by the Council and am of the view that it did enough to explain how
    Mrs X’s top-up would work. So I have found no fault in this aspect of Mrs Y’s complaint.

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Agreed actions

25. Within two weeks, the Council has agreed to apologise to Mrs Y for its delay in sending out Mrs X’s financial assessment forms.
26. Within six weeks, the Council has agreed to:
• make a symbolic payment of £150 to Mrs Y to recognise the distress she likely suffered from the delay; and
• provide the Ombudsman with an action plan to ensure similar delays do not happen in future.
27. The Council has agreed to provide us with evidence it has completed these actions.

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Final decision

28. The Council was not at fault for how it explained and arranged Mrs X’s care charges. However, it was at fault for a delay in sending out her financial assessment forms.

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Investigator's decision on behalf of the Ombudsman