Summary: There is fault by the Council. It took too long to do a financial assessment. It cannot show that it made sure Mrs D understood that her mother-in-law would have to contribute to the care home charges, as well as the family pay a third party top up. It is likely that this impacted on the choice of home and led to distress when the Council sent an unexpected bill.

The complaint

1. Mrs D complains on behalf of her mother-in-law, Mrs X. She says the Council:
• Did not properly explain that Mrs X would be expected to pay a contribution to her care fees; and
• Took too long to complete a financial assessment.
2. The Council’s shortcomings meant that Mrs X accrued a large bill for care fees contribution that she was not expecting. Mrs D says Mrs X would not have moved to that care home if they had understood the full charges because she cannot afford the fees.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)

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How I considered this complaint

5. I considered the information provided by Mrs D and discussed the issues with her. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken into account the comments of both parties before issuing the final decision.

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What I found

The law and guidance

6. 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.
7. 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.

8. 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.
9. 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.

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 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.
12. The Guidance says that councils must provide information to help people understand what they may pay, when and how it relates to people’s individual circumstances. (Paragraph 3.3 of the Care and Support Statutory Guidance)

What happened

13. Mrs X is elderly. Mrs D and her husband have power of attorney relating to Mrs X’s health and financial affairs. Mrs X had been receiving some care at home but was also supported substantially by family members so that she had 24-hour supervision. She was admitted to hospital.
14. Mrs X was due to be discharged from hospital to a care home as a temporary resident, so that her needs could be assessed, with a view to her returning to her own home with the right care. With the support of Mrs X’s Social Worker, the family selected a home. They enquired about the funding and understood that the Council would pay most of the fees, but that this would not cover the full fees and so a top-up payment of would be needed of just over £400 per week. Mrs D has explained to me that they were very careful to consider the costs and what Mrs X could afford. Mrs D says there were cheaper homes, but she worked out that Mrs X could afford a more expensive home, and this would better suit her needs.
15. The Council also completed a Care Act assessment of Mrs X’s needs. This mentions the final arrangements. It says that the family would pay a top-up fee to support the placement. The assessment also says that the Council had shared a factsheet about choosing a care home and this says the Council will assess how much the person can afford to pay towards their personal budget.
16. Mrs X moved to the care home at the end of October 2022. The home invoiced the family for the top up fees and the family made sure it was paid. The Council referred Mrs X to its finance section for a financial assessment and asked Mrs D to complete and return a questionnaire about her finances. The Council says it also sent Mrs D a resident’s agreement and a third-party top up agreement, but Mrs D did not receive these. The Council has sent me a copy of the agreements, but it does not have the covering letter or any record that it sent these to Mrs D. She did however, return the questionnaire about Mrs X’s finances.
17. At the end of January, Mrs X’s temporary stay at the care home was due to end. Mrs D telephoned the Council. She said had been trying to get information from it about what would happen next, but the Council had not responded.
18. The notes of the conversation show the funding of staying at the care home was discussed. Mrs D understood that the value of Mrs X’s own home would be disregarded for the following 12 weeks. After this point, the Council would take into account the value of the home, and this would mean the Council did not pay any of the care charges, and Mrs X would have to pay all of this herself.
19. Mrs D told the Council that the family would help pay the fees until Mrs X sold her home. Mrs D told the Council she had received no invoices from it, and she had been paying Mrs X’s contribution to the care home fees of just over £400 per week, directly to the care home.
20. Mrs X decided to stay in the care home rather than return home and so from April 2023, she became a permanent resident. The Council sent another residents agreement and top-up agreement. It confirmed that it would stop funding the care home fees and Mrs X was now self-funding. The Council also wrote to Mrs D stating that it still needed to do a financial assessment to find out what Mrs X should have been paying towards her care home fees between October 2022 when she moved in, to April 2023, when she became self-funding. The Council said that provisionally the charge should have been £156 per week.
21. Mrs X’s family queried the letter with the Council. They said they had been paying the top-up fee directly to the care home and had no warning that Mrs X would be expected to pay another charge. They had understood that the rest of the charge was paid by the Council. They had not received a residents agreement setting out the charges and so the Council sent another copy.
22. The Council completed the financial assessment in June 2023. It acknowledged that this took too long but explained that it did not have the staff to do this sooner. The Council sent a bill for £3,700. This was for Mrs X’s contribution to the care fees. Mrs D complained to the Council. She said the family knew nothing about these care charges, when Mrs X was moving to the care home they had contacted numerous council officers about funding and had not been told that Mrs X would need to contribute to the care fees as well as the family paying the top up fee. The family said Mrs X could not afford this and they would not have chosen that home for her had they realised the full charges.
23. The Council initially told Mrs D that the fees were set out in correspondence with the home and with the Council. However, Mrs D says she did not receive this correspondence and did not sign and return any correspondence agreeing to the charges.
24. In response to Mrs D’s complaint, the Council said that the family had signed an agreement to pay the top-up charge. It then sent the resident’s agreement to the family for them to sign and return. The Council has not got the signed copy on file, but the care can still commence without this, and Mrs X had already moved to the home. The Council says it discussed the care charges at the time with Mrs D, but this is not recorded on the file. The Council did however note other correspondence on file showed that the funding had been discussed and the family had received the financial information.
25. The Council did not uphold the complaint but decided to improve its services so as to prevent this happening again. The Council:
• reminded staff about the importance of recording all key points covered in discussions with both residents and their representatives when sourcing care and support. Manager would undertake case audits and complete regular supervision to address any on-going concerns in respect of record keeping.
• reminded staff to ensure people understand that where a top-up is payable, this is in addition to the residents weekly assessed financial contribution
• promised to review how it can improve this process, including making clear that financial charges are payable from the commencement of care and support regardless of charging documents being signed and returned.
26. Mrs D complained to the Ombudsman. Mrs D is clear that Ms X’s family were very careful when they chose the home. There were other, cheaper options but they considered the finances carefully and thought that with the top-up Ms X could afford the more expensive home. Mrs D said it was not clear to them that Ms X would need to contribute to her care charges. They knew that the Council would only pay so much, but worked out that Ms X could afford to pay the difference. This was actually the third-party top up payable by Ms X’s family.

Was there fault by the Council causing injustice?

27. The case notes show that the Council did discuss the finances with the family in telephone calls after Mrs X moved to the care home, and there is some reference to finances in the assessment of Mrs X’s needs. But the case notes do not show that it properly and clearly made sure that Mrs D or any of Mrs X’s family understood that she would need to contribute to the care home charges as well as the family pay a top-up fee, and that the two fees are separate. The Council also cannot show that it sent the resident’s agreement which might have also alerted Mrs D to the fact that Mrs X would need to pay a contribution too. This was fault by the Council. The Council cannot show
28. The Council also took too long to complete the financial assessment. We expect an assessment to take around six to eight weeks. The Council took eight months, from October 2022 to June 2023, to complete the assessment. Although we cannot say that the Mrs X would have moved had she been alerted to the charges sooner, the delay compounded the misunderstanding of the care charges. It also added to the distress and frustration caused to Mrs D.

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Agreed action

29. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened. It is likely that the lack of clear advice led to Mrs X’s family agreeing to a more expensive care home. However, Mrs X’s contribution would have been the same regardless of the cheaper care home. It is payable for the care she received before becoming a permanent resident and there was no fault in the assessment and billing process aside from the delay. For these reasons, I have not recommended the Council write off the invoice. Instead I have recommended the Council make a symbolic payment to recognise the distress and frustration caused to Mrs D by its shortcomings.
30. The Council should within one month of the date of this decision:
• Apologise to Mrs D for the impact on her. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay to Mrs D £300 in recognition of the distress and frustration it caused her when it failed to give clear advice and it took too long to complete the financial assessment.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation. There was fault by the Council causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman