Summary: Mrs X complained, on behalf of her husband Mr X, about how the Council dealt with her request for help with Mr X’s care home placement. There was fault in how the Council assessed Mr X’s needs and how it planned his care and support. This led to significant avoidable distress to Mr X and Mrs X; and also affected Mr X’s mental health. The Council agreed to apologise, issue an amended care and support plan for Mr X, and pay both Mr and Mrs X a financial remedy. It also agreed to review its practices and arrange training for its staff.

The complaint

1. Mrs X complains, on behalf of her husband, Mr X, about how the Council proposed to move Mr X to a different care home since 2023. Mrs X says the Council:
• failed to give her and Mr X a copy of its assessment of Mr X’s needs or the care and support plan it produced him;
• failed to produce a personal budget for Mr X which met the true costs of his care or to explain how it decided on the amount it did;
• tried to move Mr X to different care homes, against the advice of his social worker and which could not meet his needs, based only on the costs for his current care home;
• failed to reassess Mr X’s care and support needs when Mrs X asked it to in late 2023; and
• failed to ensure Mr X’s welfare was at the centre of the Council’s decision-making.
2. As a result, Mrs X says both she and Mr X were caused significant, avoidable worry and distress over many months. She wants the Council to:
• ensure Mr X’s care and support plan, and personal budget, meet his needs;
• provide certainty that Mr X will be able to remain in his current care home, so long as the home it able to meet his needs; and
• apologise and properly recognise the distress it caused to her and Mr X.

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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. We may investigate a complaint on behalf of someone 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)

5. 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.
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 evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Adult social care

9. Councils’ responsibilities towards adults who need care and support are set out in the Care Act 2014. The Government issues guidance, The Care and Support Statutory Guidance (“the guidance”), which councils must follow unless they have good reasons not to.

Assessment and care planning

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. If a council decides someone has care needs it must, or decides, to meet, it must plan their care.
13. The guidance says this planning must be person-centred and must genuinely involve the person or their representatives throughout the process. Councils must plan someone’s care in a timely way.
14. The care planning process must lead to the Council writing a care and support plan, setting out what support the person needs, how these will be met and the costs of meeting their needs, called a “personal budget”.

Personal budgets

15. A personal budget is the amount of money the Council believes is needed to meet someone’s care and support needs. It must be included in their care and support plan.
16. Councils can suggest an indicative personal budget during the assessment and planning process. However, the final personal budget must be sufficient to meet the person’s needs and reflect the costs of the person’s care to the council.

Choice of accommodation and third-party top-ups

17. 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.
18. 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.

19. 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.
20. 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.
21. 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.

22. 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.
23. Councils must remember the regulations and guidance on choice of accommodation and additional costs apply equally to those entering care for the first time, those who have already been placed by a local authority, and those who have been self-funders, but because of diminishing resources are on the verge of needing local authority support.

Use of approval panels

24. The guidance says that approval panels can be an appropriate mechanism to sign-off large or unique personal budgets or care plans. However, councils should not create or use panels that seek to amend planning decisions, micro-manage the planning process or are in place purely for financial reasons.

The Council’s financial position

25. The Council is in a difficult financial position and has been for several years. It has issued several reports under section 114 of the Local Government Finance Act 1988 in recent years. Issuing these reports means the Council cannot agree to any new spending other than on statutory and existing commitments.

What happened

26. Mrs X’s husband, Mr X, has complex care needs and has lived in care homes for several years. These care homes were arranged and paid for by Mrs and Mr X. Mr X moved to his current care home in 2022, after a stay in hospital, as his former care home could no longer meet his needs.
27. At the start of 2023, Mrs X contacted the Council to ask it to take over responsibility for Mr X's care. Mr X’s savings were approaching the point where he could no longer fund his own care and would become eligible for help from the Council.
28. The Council referred Mr X’s case to the team responsible for the area he lived in, so they could assess Mr X’s care needs. It also sent Mrs X a financial assessment form, asking for information about Mr X’s money and savings. Mrs X returned the form and other information the Council asked for in late January 2023. Mr X continued to pay his own care fees while waiting for the Council’s decision.
29. After Mrs X challenged the Council’s first financial assessment, the Council decided, in mid-March 2023 Mr X was entitled to help with his care costs from mid-January.
30. The Council started its assessment of Mr X’s care needs in April 2023. A social worker visited Mr X in his care home and formed the view that, because of his needs and that he was settled in his current care home, he should remain there.
31. Between late April and late May 2023, the social worker tried to arrange for Mr X’s placement to be approved by the Council’s approval panel. The panel considered Mr X’s case in late May 2023. Since the costs for Mr X’s care home were more than the Council usually paid for nursing care, the panel agreed Mr X’s placement “in principle” pending an assessment of whether Mr X’s care should be paid for by the NHS instead.
32. That assessment was carried out between late May and late June 2023, when the local health service decided that Mr X’s needs were not mainly health related and so the NHS was not responsible for covering the full costs.
33. Shortly after this, Mr X’s care home chased both Mrs X and the Council for an update. Mr X had not been able to pay his care fees for the last three months and so he owed three month’s fees.
34. A manager reviewed Mr X’s case and told the social worker responsible to:
• challenge the health service’s decision that it was not responsible for paying the full costs of Mr X’s care;
• discuss with Mrs X whether she could pay the difference between the Council’s usual rate and the costs of Mr X’s current care home; and
• tell Mrs X that if she could not afford to pay a top-up, the Council would seek to move Mr X to a different care home.
35. The social worker discussed this with Mrs X, who told the social worker that Mr X had recently had a fall. They met Mr X at the care home in late July 2023 to carry out a review of his current placement. Again, the social worker told Mrs X that if they could not afford to pay a third-party top-up, the Council would move Mr X to a different care home.
36. There was then no contact between Mrs X and the Council until early October 2023, when the social worker told Mrs X that the Council would be seeking a different, cheaper care home placement for Mr X. The Council then began a search for other care home placements which it believed might meet Mr X’s needs.
37. The Council suggested the first alternative care home for Mr X in early October 2023. Mrs X responded to the Council setting out her reasons why that alternative could likely not meet Mr X’s needs.
38. In early November 2023 the Council suggested a second alternative. Mrs X again responded with detailed reasons why the second alternative could not meet Mr X’s needs. She also asked the Council to reassess Mr X’s needs, as his health had deteriorated since April.
39. In early 2024, the Council reviewed Mr X’s case. It had not been able to find a suitable alternative placement for Mr X at substantially lower cost. The Council decided to try to seek mental health funding towards Mr X’s placement.
40. In the meantime, the Council decided, in mid-March 2023, to approve Mr X’s placement at his current care home. It confirmed this to the care home in late March 2024.
41. Mrs X complained to the Council, with the help of a representative, in late May 2024 about how the Council had assessed Mr X’s needs and its proposal to move him to a different care home.
42. While it was considering Mrs X’s complaint, the Council decided in June 2024 to approve Mr X’s placement at his current care home.
43. In its final response to Mrs X’s complaint, the Council apologised for not sharing copies of its assessment with Mrs X, and the distress Mr and Mrs X had experienced. However, it did not agree that it had not followed the right processes when assessing Mr X’s needs and arranging his care.

My findings

44. Mr X cannot authorise someone to complain on his behalf. I am satisfied that Mrs X is a suitable person to complain for Mr X.
45. There was fault with how the Council assessed Mr X’s care and support needs, how it planned his care, and how it communicated with Mrs X.

Delays in assessing Mr X’s needs and planning his care

46. While there are no timescales for assessing needs or planning someone’s care, the guidance says these should be completed over a reasonable period.
47. Mrs X asked the Council to assess Mr X’s needs in early January 2023. However, it did not complete this assessment and decide whether Mr X had eligible needs until late April 2023, around four months later. I consider that delay was fault.
48. The Council did not then complete planning Mr X’s care until June 2024, when it confirmed his placement at the care home was permanent. That was over 12 months since it began planning Mr X’s care. I am satisfied that was significantly longer than it should have taken and was fault.
49. Mr X’s care was not disrupted, since his care home was understanding of the situation. However, I am satisfied the delays caused Mr and Mrs X avoidable worry and distress, not knowing what would happen with Mr X’s care.
50. The Council also failed to consider whether it needed to meet Mr X’s urgent needs after it decided he was eligible for financial help from mid-January 2023. The Council knew Mr X needed care in a care home and could no longer afford to pay for this himself. However, it did not take responsibility for meeting Mr X’s needs, even on a temporary basis, until mid-2023. This did not cause an interruption in Mr X's care, but it did cause distress for Mrs X as the care home chase her for payments in the first half of 2023.

Undue emphasis on cost and funding arrangements

51. I am satisfied the evidence shows the delays in planning Mr X’s care were caused by the Council’s focus on the costs of Mr X’s care and who, other than the Council, could pay for this.
52. Throughout the care planning process, including during the Council’s approvement panel meetings, the only issue the Council focused on was cost. Managers overrode the social worker’s recommendations and repeatedly referred to the costs of Mr X’s care home was too expensive. They did this without any information about alternative care home placements or whether these could meet Mr X’s complex needs.
53. It is appropriate that councils should seek the best value and ensure that, where they have a duty to meet someone’s needs, they spend public money most effectively. However, this must not be at the expense of person-centred care planning or promoting the welfare of individuals.
54. The guidance says councils should not create or use panels that seek to amend planning decisions or are for purely financial reasons. The evidence shows that the Council’s approval panel was focused solely on the costs of Mr X’s care, not on how best to meet his needs. It is also clear that Council staff understand that the panel’s role is to focus on the costs of care packages. That focus on cost and funding is fault.
55. While the Council has issued reports under section 114, effectively preventing new spending, this does not affect the Council’s duty to meet the care and support needs of people who need this help, or alter its duty to follow the Care Act and statutory guidance.

Failure to follow the rules around third party top-ups

56. The Council asked Mrs X to agree to a third-party top-up in June 2023. However, at that time it had not identified any other care home which could meet Mr X’s needs at a lower cost than his current care home.
57. Before suggesting a top-up arrangement, councils must provide at least one, and should provide more than one, choice of alternative, suitable placements. The Council’s failure to do this was fault.
58. This caused Mr and Mrs X significant, avoidable distress and worry. I am satisfied, due to his health conditions, that this distress was particularly significant for Mr X. There is evidence from Mr X’s GP that his mental health was affected by the uncertainty over his future residence for such a significant period.
59. While Mr or Mrs X did not suffer any financial injustice, the situation might have been different if Mrs X had agreed to pay a top-up.

Failure to consider reassessing Mr X’s needs

60. Mrs X asked the Council to reassess Mr X’s needs in light of changes and further medical evidence in late 2023.
61. However, there is no evidence the Council considered her request or whether there were grounds to review or reassess Mr X’s needs. Given that, around this time, the Council was seeking alternative care home placements, the failure to consider Mr X’s request was fault.
62. While this did not affect the final outcome, I am satisfied this added to the frustration and worry Mrs X experienced.

Failure to share its assessment and care and support plan

63. The Council should have shared copies of its assessments and Mr X’s care and support plan with both him, and Mrs X.
64. The Council did not share its assessments until Mrs X complained in 2024 and there is no evidence the Council has shared the care and support plan.

Failure to set a sufficient personal budget

65. The Council was entitled, during the care planning process, to set an “indicative” personal budget; the amount it expected it would cost to meet his needs.
66. However, when it became clear it was not possible to meet Mr X’s care needs for less than his current care home, the Council should have revised his personal budget to reflect this. It has failed to do so which is fault.
67. The Council has no evidence that suitable, alternative care is available for Mr X for less than the cost of his current care home. Therefore, it is not appropriate for the Council to characterise the situation as “waiving” a top-up from Mrs X.
68. While the Council can revise Mr X’s personal budget in future, if alternative suitable care is available, in the meantime, it must ensure his personal budget accurately reflects the costs of his care.

Failure to take a person-cantered approach

69. The social worker responsible for Mr X’s care planning was focused on his needs and wellbeing. However, taking all the Council’s actions into account, I am satisfied the Council, as a whole, was not.
70. The Council’s planning of Mr X’s care needs was not person-cantered and did not put Mr X’s wellbeing at the forefront of its decision making. There is extensive evidence in the Council’s records that its focus was on reducing the cost to it of Mr X’s care, not on how best to meet his needs or on supporting Mr X to make his own choices.

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Action

71. Within one month of my final decision the Council will:
• revise the personal budget for Mr X to reflect the actual cost of his ongoing care, as agreed by the Council in June 2024;
• issue an amended care and support plan to Mr and Mrs X, setting out that personal budget and the arrangements for meeting Mr X’s care and support needs;
• offer Mr and Mrs X a reassessment of Mr X’s needs (if Mr and Mrs X agree this is necessary);
• apologise to Mr and Mrs X for the worry, distress and upset caused by the failures I have identified above;
• pay Mrs X £500 to recognise that worry and distress; and
• pay Mr X £1000 to recognise the distress and harm caused by the uncertainty over his living arrangement he experienced over 12 months and the effect this had on his mental health during that time.
72. Within three months of my final decision the Council will:
• review its policy and practices around its use of approval panels for packages of adult social care. This review should:
1. be undertaken by a senior Council officer;
2. ensure the Council’s policy, panel terms of reference and practices comply with the law and statutory guidance, including an emphasis on individual wellbeing and person-centred care planning, rather than financial considerations; and
3. share its report and any recommendations with the responsible elected cabinet member and/or scrutiny panel
• arrange training for all relevant adult social care staff (including managers) on the principles of person-centred care planning, offering choice of care home placements and the requirements for third-party top-ups.
73. The Council should provide us with evidence it has complied with the above actions.
74. 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 above.

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Decision

75. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman