Summary: Mrs X complained the Council did not properly assess her mother Mrs Y’s needs for residential care and the associated charges for this. Mrs X said poor communication meant the family paid more than they expected to and caused them distress. There was one instance where the Council’s communication with Mrs X about charges for respite care could have been clearer, but this did not cause significant injustice. There was no fault in how the Council charged Mrs Y for her contribution to care costs, or her family for top-up fees.

The complaint

1. Mrs X complains on behalf of her mother, Mrs Y, who has care and support needs. Mrs X says the Council did not properly assess Mrs Y’s needs for residential care, and the associated charges for this, in 2023. Mrs X says:
1. in March 2023 Mrs Y stayed in a temporary residential respite placement. The Council partly funded this, but later said Mrs Y would need to pay some money back to the Council, on top of a contribution the family had already paid direct to the care home. The information the Council provided about this was misleading and unclear;
2. in May 2023, the Council wrongly decided Mrs Y did not need to move into residential care permanently. Mrs X complained about this and decided to move Mrs Y into residential care pending the outcome of a reassessment by the Council. The Council changed its decision on reassessment, but Mrs Y paid the full care costs herself for several weeks during the reassessment; and
3. once the Council agreed Mrs Y should be in permanent residential care, it wrongly calculated what her contribution to her care costs should be and provided confusing information about this to Mrs X. Again, it said it would pay towards the care but later changed its position, requiring Mrs Y to contribute more to the cost than it had first explained. Also, information it provided to Mrs X about a top-up fee she would need to contribute for Mrs Y to stay in the same care home was unclear.
2. Because of this, Mrs X says:
• she experienced distress because of the misleading information provided, and significant time and trouble in trying to resolve the issues; and
• the family paid more for Mrs Y’s care than they expected to.
3. Mrs X wants the Council to:
• contribute what it first said it would to the cost of the March 2023 temporary residential respite placement;
• contribute to the residential care costs Mrs Y funded herself, while waiting for the Council to overturn its decision and agree she needed permanent residential care;
• reconsider what Mrs Y’s contribution should be to her permanent residential care costs, considering what the family are already paying in top-up fees; and
• change how it communicates important financial information so it is clear to people what they will need to contribute to the cost of their care.

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The Ombudsman’s role and powers

4. 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’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
6. 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.
7. 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

8. I considered:
• information provided by Mrs X and discussed the complaint with her;
• documentation and comments from the Council;
• relevant law and guidance; and
• the Ombudsman’s Guidance on Jurisdiction and Guidance on Remedies.
9. Mrs X and the Council commented on my draft decisions. I considered any comments received before making a final decision.

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What I found

Legislation and guidance

Care needs assessment

10. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
11. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
12. Where a council decides someone has eligible needs, it has a legal responsibility under The Care Act 2014 to provide a care and support plan. This should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Residential care and top-up fees

13. 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.
14. A person can choose a setting that costs more than their personal budget if a third-party or, in certain circumstances, the resident, is willing and able to pay the additional cost. This is called a ‘top-up’.
15. 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. The agreement must, as a minimum, include:
• the additional amount to be paid. This should be the difference between the cost of the preferred setting and the amount the Council would have set in a personal budget to meet the person’s needs by arranging or providing accommodation of the same type;
• the amount specified for the accommodation in the person’s personal budget;
• the frequency of the top-up payments;
• to whom the payments are to be made;
• arrangements for reviewing the agreement;
• a statement on the consequences of stopping the top-up payments;
• a statement on the effect of any increases in charges that a provider may make; and
• a statement on the effect of any changes in the financial circumstances of the person paying the top-up.
16. Before entering into the agreement, the Council must provide the person paying the top-up with sufficient information and advice to ensure they understand the terms and conditions, including actively considering the provision of independent financial information and advice.

Charging for permanent residential care

17. 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. 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.
18. 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.
19. 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.

Charging for temporary residential care

20. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt a permanent admission is required. The person’s stay should be unlikely to exceed 52 weeks, or in exceptional circumstances, unlikely to substantially exceed 52 weeks. A decision to treat a person as a temporary resident must be agreed with the person and/or their representative and written into their care plan.
21. A council can choose whether to charge a person where it is arranging to meet their needs. In the case of a short-term resident in a care home, the council has discretion to assess and charge as if the person were having their needs met other than by providing accommodation in a care home. Once a council has decided to charge a person, and it has been agreed they are a temporary resident, it must complete the financial assessment in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance.

What happened

22. Mrs Y has a diagnosis of dementia. She has two daughters Mrs X and Mrs Z. At the start of 2023 she was living at home with four home care visits per day, arranged by the Council.

Temporary residential respite placement

23. In March 2023, Mrs X told the Council Mrs Y was unwell. The family wanted to place her in residential respite for 24-hour care during her illness. The Council told Mrs X she should seek medical advice for Mrs Y via an emergency department. The family decided instead to place Mrs Y in respite care for two weeks, in a care home they had used for respite before. They did not think it was in Mrs Y’s best interests to take her to an emergency department because of long waiting times. Mrs Y paid the care home for a two-week stay. The following day Mrs X asked the Council to contribute to the cost of the respite. The Council said it did not usually contribute to privately arranged respite placements, but it would consider her request.
24. The Council’s adult social care charging policy said it applied residential charging rules to respite care. This means people could choose a respite placement more expensive than their personal budget if a third-party agreed to pay a top-up fee for the difference. Mrs X told the Council she chose the respite placement for Mrs Y because she had been there before, so it was not in her best interests to go somewhere unfamiliar. The Council decided it should compare the cost to other suitable placements to decide what the respite would have cost if arranged by the Council instead of the family. It would then ask the family to cover the remainder as a top-up.
25. In April 2023, a month after Mrs Y returned home from respite, the Council told Mrs X “senior management… will agree to pay £1,285.59 per week for the two weeks that [Mrs Y] went to private respite… We will liaise with the care home directly to make this payment”.
26. Three days later, the Council completed a financial assessment for Mrs Y and wrote to the family with the outcome. This letter explained:
• “customers who access short term care funded by Cheshire East Council must pay something towards the cost of that care”, and that Mrs Y’s maximum weekly contribution for respite care would be £237.78. This was not an invoice and did not ask the family to make any payments at that stage;
• “if you choose a care home that charges an additional price, or top-up, above the amount paid to them by the Council, then it will be the responsibility of a third-party to pay this cost directly to the care home”; and
• who to contact if any of the information in the letter was wrong.
27. In June 2023, Mrs X told the Council she had not heard further about when it would pay the care home its contribution to the respite so the home could repay Mrs Y. A week later, the Council sent the family an invoice which said Mrs Y owed a contribution of £424.01 for the two weeks of respite care, asking for payment to the Council in three weeks.

Re-assessment of needs leading to permanent residential care

28. At the end of March 2023, shortly after Mrs Y returned home from respite, the family asked the Council to reassess her needs for care and support. They felt Mrs Y needed 24-hour care due to a worsening in her overall health so should be in residential care permanently.
29. Over the next ten weeks, the Council reassessed Mrs Y’s needs. This included conversations with Mrs Y, Mrs Z (her other daughter), and professionals involved with Mrs Y’s care.
30. In April 2023, while the Council was reassessing Mrs Y’s care needs, it also carried out a financial assessment to decide what Mrs Y’s contribution would be if it decided she should have residential care. It wrote to the family with the outcome. This letter explained:
• “customers in long term care funded by Cheshire East Council must pay something towards the cost of that care”, and that Mrs Y’s maximum weekly contribution for residential care would be £274.64. This was not an invoice and did not ask the family to make any payments at that stage;
• “if you choose a care home that charges an additional price, or top-up, above the amount paid to them by the Council, then it will be the responsibility of a third-party to pay this top-up directly to the care home”; and
• who to contact if any of the information in the letter was wrong.
31. Mrs X responded to the financial assessment outcome with queries, so it spoke to her over the phone the same day. The Council recorded that on this call it explained:
• once Mrs Y’s needs reassessment was complete, if it decided she should receive residential care, it would source suitable placements to meet her needs. The cheapest available placement would then be considered the contract price;
• if the family wanted to choose a care home costing more than the cheapest available, they would need to pay a top-up fee for the difference. This would need to be paid by a third-party (e.g., a family member), and not Mrs Y herself; and
• the family would need to pay the top-up fee direct to the care home. The Council would pay the care home the remaining fee, and Mrs Y would pay her weekly calculated contribution to the Council.
32. In May 2023, seven weeks into the reassessment, the family decided to place Mrs Y in residential care pending the outcome of the reassessment. The family arranged this themselves and Mrs Y paid for it privately, at first as a two-week trial period. This was a different care home than the previous respite placement.
33. In June 2023, three days after Mrs Y returned home from her care home trial, the Council completed its reassessment. It decided Mrs Y should continue living at home, with an increase to her home care package. Mrs X complained because she disagreed with the outcome. Ten days later, the family decided to place Mrs Y in permanent residential care, at the same care home where she had a trial. Mrs X said the family felt they had to do this regardless of the reassessment outcome, because their view was Mrs Y needed 24-hour care. The Council found out Mrs Y was in residential care a few days later.
34. In response to Mrs X’s complaint about the reassessment outcome, the Council said it had carried this out properly. However, it would allocate a new social worker to the case as it accepted the family’s relationship with the previous worker had now broken down. The new social worker would reassess Mrs Y’s needs again.
35. The Council completed the further reassessment within a month. It decided Mrs Y had eligible needs to support a move to permanent residential care, and this was in line with her wishes. The Council recorded Mrs X said the family wanted Mrs Y to remain in the same care home and were happy to pay a top-up fee if needed following cost comparison with other suitable placements.
36. Shortly after this, the Council wrote to the family again about Mrs Y’s weekly contribution to residential care costs. This letter was the same as the previous April 2023 financial assessment letter but said Mrs Y’s maximum weekly contribution had changed and would now be £237.78.
37. In July 2023, Mrs X signed a third-party top-up agreement, agreeing to pay a top-up fee for Mrs Y to remain in the more expensive care home instead of moving to a cheaper suitable option. Mrs X told us the Council explained at the time it had found it could place Mrs Y in another home that would meet her needs for £650 per week, so the top-up fee would be the weekly cost that remained above £650. The top-up agreement said:
• “the top-up payment excludes the service user’s personal allowance and the assessed contribution that the service user is required to make towards the cost of the Home”;
• “failure to pay the care provider the agreed top-up could risk debt recovery action being taken and the need for the customer to move to an alternative care provider”;
• “this agreement can be reviewed and any changes must be communicated to The Council… If the third-party has a change in circumstances which puts the third-party payments at risk, they must notify the Council as soon as possible”; and
• “Cheshire East Council suggests that you may wish to seek independent legal advice as to your commitment and obligation under this agreement”.
38. A month later, the Council wrote to the family again about Mrs Y’s weekly contribution to residential care costs. This letter was the same as the previous letter but said Mrs Y’s maximum weekly contribution had changed and would now be £274.64.

The complaint and Mrs X’s position

39. In October 2023, Mrs X complained to the Council. She said she had not paid all Mrs Y’s invoices as she did not understand if the Council had provided all funding it previously agreed to, for both the respite and the permanent placement.
40. In response to Mrs X’s complaint, the Council:
• said it had paid the respite care home £1,285.59 and the home repaid this to Mrs Y. It had billed Mrs Y correctly for her assessed contribution to this amount and she owed this money to the Council;
• confirmed it was not liable to contribute to the cost of the two-week trial period at the second care home. The family chose to arrange this themselves without the Council’s agreement. At the time, the Council had not assessed Mrs Y as having eligible needs for 24-hour residential care and had arranged suitable home care to meet her needs at home;
• said it had properly explained Mrs Y had to pay an assessed contribution to her permanent residential care costs. It had compared the care home cost to other suitable placements and on this basis decided the family should pay a top-up fee of £646 per week, direct to the care home. The Council had paid the care home the remaining fees (£1,296 per week minus the £646 family top-up, so £650 per week). It had started paying the care home in August 2023, backdated to 16 June 2023, the date the family arranged the permanent placement (not the earlier trial period). The care home should therefore have repaid Mrs Y this £650 per week. Mrs Y now needed to pay her assessed weekly contribution of £274.64 direct to the Council, backdated to 16 June 2023. It had billed her for this correctly; and
• agreed to reassess Mrs Y’s finances based on updated evidence provided by Mrs X. Following this reassessment, it disregarded more of Mrs Y’s income and capital from its calculations, backdated this, and credited her account, reducing the debt owed by a small amount.
41. At the time of this decision:
• For the respite placement, the family has not paid Mrs Y’s assessed contribution back to the Council and it has paused recovery action about this pending our decision. Mrs X does not dispute the Council calculated Mrs Y’s contribution correctly based on her income and expenditure. However, she says the Council should not have charged Mrs Y any contribution because it originally agreed it would pay £1,285.59 direct to the care home. The Council gave the impression it would pay the full amount with no contribution from Mrs Y, and only the remaining top-up fee to be covered by the family. Mrs X says the Council therefore should not have later invoiced Mrs Y for a contribution because the family had not expected this.
• For the permanent residential placement, Mrs Y has now paid the backdated contribution she owed the Council. Mrs X paid this using Mrs Y’s funds to avoid debt recovery action. Mrs X is satisfied the Council correctly adjusted its calculations based on updated financial information she provided following the complaint. However, she questions whether it should have charged Mrs Y any contribution. Again, she says the Council gave the impression it would pay the full amount with no contribution from Mrs Y, and only the remaining top-up fee to be covered by the family. She is also of the view the Council should contribute to the cost of the two-week trial period at the second care home. She says ultimately it changed its mind and agreed with the family Mrs Y needed residential care.

My findings

Complaint 1a – temporary residential respite placement

42. The family went outside Council processes and arranged a respite placement of their choice, at a cost significantly more than the Council would have arranged had its process been followed. The Council is entitled to limit how much it will pay for a respite placement, based on the cost of suitable available placements, and to require a top-up be paid for the remainder. This was not fault.
43. The Council is also entitled to charge Mrs Y a contribution to the cost it paid for her respite care, separate to the top-up, and is not at fault for doing so.
44. I found the Council’s communication about this issue could have been clearer. The Council’s April 2023 email (see paragraph 25) did not make explicitly clear that once the Council paid the £1,285.59 to the care home, it would later invoice Mrs Y for her assessed contribution. However, I do not consider any unclear information in this email caused significant injustice requiring a remedy, because three days later, the Council wrote to the family explaining Mrs Y’s assessed contribution to the respite care. I consider this letter was clear enough, and it provided the opportunity to question the information. Also, the Council may have explained this earlier if the family had followed the Council’s process instead of arranging a respite placement themselves which meant the Council had to approve funds retrospectively.

Complaint 1b – reassessment of needs and cost of care during reassessment period

45. I found no evidence of fault in how the Council carried out the first needs reassessment from April to June 2023. The fact the Council reached a different outcome in the later reassessment after Mrs X’s complaint does not show there was fault in the first reassessment. The Council kept comprehensive records of how it sought Mrs Y’s views, and views of relevant family and professionals, for both reassessments. During the second reassessment Mrs Y expressed a clear preference for permanent residential care, which she had not expressed in the earlier assessment.
46. The Council took ten weeks to carry out the first re-assessment. In the circumstances, I found this timescale reasonable and do not consider there to be fault. The Council told Mrs X four weeks into the assessment it did not consider Mrs Y’s situation to be urgent requiring it to expedite the assessment. It noted in its reassessment records this was “a complex case requiring thorough evidence gathering, due to mixed responses and information on [Mrs Y’s] abilities and needs”. It consulted various family members and professionals and visited Mrs Y more than once. There was no evidence of undue delay.
47. The family made a choice to place Mrs Y in a care home for a trial pending the reassessment outcome. After the Council decided Mrs Y’s needs should continue to be met at home and Mrs X complained, the family made a further choice to return Mrs Y to the care home permanently, regardless of the complaint outcome. The Council had taken steps to ensure Mrs Y’s needs were met at home during the reassessments. Had the family followed the Council’s process, Mrs Y would have remained at home with her needs met during the complaint and second reassessment.
48. The Council decided to backdate its contribution to the care home fees to the point the family arranged the permanent placement, before it had decided Mrs Y should live in residential care. However, it decided it should not contribute to the cost of the earlier two-week trial period. I found no fault in the Council’s actions, and do not consider the Council should pay towards the trial period, which the family arranged at its own choice.

Complaint 1c – care charges once in permanent residential care

49. The family went outside Council processes and placed Mrs Y in permanent residential care at a cost significantly more than the Council would have arranged had its process been followed. The Council is entitled to limit how much it will pay for residential care, based on the cost of suitable available placements, and to require a top-up be paid for the remainder. This was not fault.
50. The Council is also entitled to charge Mrs Y a contribution to the cost it paid for her permanent residential care costs, separate to the top-up, and is not at fault for doing so.
51. Mrs X told us she disagreed with the Council’s records of the phone call described at paragraph 31. Either way, I found the letter the Council sent before the phone call was clear enough to explain in general terms that people are expected to pay an assessed contribution to the cost of their residential care, and if a more expensive home is chosen there will also be a top-up fee to be paid by a third-party.
52. The copy of the third-party top-up agreement signed by Mrs X the Council provided had pages missing at the start, because it only saved the final signature page to its records. However, it provided a copy of its full template agreement which Mrs X would have seen at the time. On the balance of probabilities, I am satisfied Mrs X was provided with information at the time which met the requirements of relevant legislation. Mrs X told us the Council explained the cost of the third-party top-up and offered the choice of moving to a cheaper setting. The family decided to pay the top-up to keep Mrs Y in their chosen setting. I understand the family had to weigh the cost of the top-up against the benefit of keeping Mrs Y in the same setting and avoiding the disruption and distress it may cause her to move. However, the family would always have had to make this choice because they decided to move Mrs Y into the home before the Council had completed its assessments and made decisions about her care needs and charges. The move to the care home happened before the Council was able to explain the top-up process and associated costs.
53. I accept Mrs X did not realise that separate to the third-party top-up paid by the family, Mrs Y would need to pay her own assessed contribution to the care costs. However, I do not consider this misunderstanding was due to fault by the Council because:
• the top-up agreement said, “the top-up payment excludes the service user’s personal allowance and the assessed contribution that the service user is required to make towards the cost of the Home”. My view is this was clear enough that the top-up payment was separate to Mrs Y’s assessed contribution;
• the Council sent various financial assessment letters which explained in general terms that people are expected to pay an assessed contribution to the cost of residential care, and that if a more expensive home is chosen then there will also be a top-up fee to be paid by a third-party; and
• the top-up and charging process may have been clearer for the family if they had followed the Council’s process instead of arranging permanent care themselves which meant the Council had to act retrospectively.

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Final decision

I have completed my investigation. There was one instance where the Council’s communication with Mrs X about charges for respite care could have been clearer, but this did not cause significant injustice. There was no fault in how the Council charged Mrs Y for her contribution to care costs, or her family for top-up fees.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman