Summary: Ms Z on behalf of her mother Mrs X, complained the Council delayed completing a financial assessment and then wrongly included a property in the assessment. resulting in no care home fees being paid and Mrs X given notice to leave care home. The Council failed to complete the financial assessment in a timely manner resulting in the care home giving Mrs X 28 days’ notice to leave the home. The Council should cover the full cost of the care home for the time Mrs X lived there.

The complaint

1. Ms Z, on behalf of her mother Mrs X, complained the Council delayed completing a financial assessment and then wrongly included a property in the assessment.
2. The delay resulted in the care home giving notice due to unpaid fees meaning Mrs Z had to move to a new home which caused distress.

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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. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

Charging for residential care

6. 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.
7. 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.
8. 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.

Choice of care homes

9. 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.
10. 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.

11. 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.

Top-up payment

12. 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.
13. 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.

14. 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.

Council complaint procedure

15. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough.
16. Regulations do not say how long a complaint investigation should take. But they do say an expected timescale must be explained at the start, usually in discussion with the complainant. If the complainant does not want to discuss this, the responsible body must decide the timescales and confirm them to the complainant in writing. The body must keep the complainant informed of progress during the investigation ‘as far as reasonably practicable’. If the responsible body has not provided its response after six months (or after a longer period agreed with the complainant), it must write to the complainant to explain why. (Regs 13 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

Key facts

17. This section sets out the key events in this case and is not intended to be a detailed chronology.
18. Mrs X previously lived at her son’s house in a different area. When he died unexpectedly, Mrs X was found in a poorly state. He had not been caring for her properly and she was extremely underweight and unable to walk. Mrs X went to a local care home temporarily and then when stronger moved to a care home near Ms Z’s home in Kirklees. The placement at the care home in Kirklees was arranged privately between Ms Z and the care provider. Mrs X paid for the first six weeks of her stay from her savings.
19. Ms Z contacted the Council in November 2023 saying Mrs X’s savings had been depleted and asked for a care needs assessment and financial assistance. A chronology provided by the Council says that Mrs X was considered to be under the savings threshold, so not a self-funder, until the value of the property previously owned by her son is realised. It goes on to say that once the property is legally Mrs X’s, then the local authority would pursue a deferred payment agreement.
20. Mrs X’s son died without a will and so the family needed to obtain probate/letters of administration for his estate. Mrs X was the sole beneficiary which included the property Mrs X previously lived in with her son. The Council has confirmed the value of the property was not included in the financial assessment. I have seen a document which shows letters of administration were granted on 20 December 2023. The property was never transferred to Mrs X’s name and currently remains unsold.
21. On 5 February Ms Z emailed the Council saying she had received an overdue reminder from the care home for her mother’s fees and that she did not have the means to pay. She asked the Council if any progress had been made regarding the payment of fees. The Council replied the same day saying no decision had been made and therefore no payments would be made by the Council until a decision was made.
22. On 8 February Ms Z emailed the Council again saying she was “pulling her hair out” trying to find out what was happening. She asked if the Council could at least let her know what Mrs X’s contribution would be so that could be paid to the care home. The Council replied saying the weekly assessed contribution for short term care is £227.81 and that the Council would invoice her for this amount. It said the Council always pays the full cost of the care directly to the care home including the client contribution amount. It asked her not to pay the amount to the care home and to wait for an invoice to be issued.
23. Ms Z made a formal complaint to the Council on 9 March 2024 after receiving a deferred payment agreement form. She explained that Mrs X was recovering well and wanted to purchase a property locally to live in. Ms Z asked the Council to disregard the value of the property under section 34 of annex B of the Care Act 2014. She asked the Council to give this urgent consideration because the care home was threatening to give notice to leave due to unpaid care bills.
24. On 26 March the care home wrote to Mrs X giving 28 days notice to quit the home. It said it was unable to continue to provide care and support without payment and that it had not received any confirmation of payments from the Council or the funding arrangements going forward.
25. Mrs X was admitted to hospital on 21 April which was the last day she lived at the care home. When ready for discharge, the home would not accept her back. So Mrs X moved to another hospital and remained there until 3 May when she moved into a different care home. Mrs X died three weeks later.
26. The Council responded to Ms Z’s formal complaint on 5 August 2024. It apologised for the delay in responding. It said that after Ms Z contacted it in November 2023 saying Mrs X had no money it sought legal advice regarding whether Mrs X should be considered a self-funder. It said it was legally unable to disregard the value of the property and that the offer of a deferred payment agreement remained.
27. The response also included details of the financial assessment for the period 3 May to 22 May when Mrs X was living in the second care home. It stated this assessment differed from that previously quoted due to the 12-week property disregard. It said it would invoice for the top up amount as well the assessed client contribution. The Council says the amount of £1033.53 remains outstanding.

Analysis

28. Although the Council was not involved in the decision to place Mrs X in the care home, once it was notified she had depleted her funds below the threshold, it had a duty to assess her care needs and finances. The Care Act 2014 sets out the steps a council must take.
29. After assessing the needs, the Council then must assess the person’s finances and any amount they would be likely to pay towards the costs of meeting these needs. It should provide details of a personal budget which must specify the cost to the council of meeting the person’s needs, the amount the person must pay towards that cost, based on the financial assessment and any amount the council must pay.
30. In this case the needs assessment was completed on 5 February which was 10 weeks after Ms Z first contacted the Council. While there is no statutory timescale for completing the needs assessment, the guidance requires councils to do this over an appropriate and reasonable timescale. I have seen evidence which indicates the Council was aware in December 2023 that Mrs X’s placement was at risk and the care provider was considering giving notice due to non-payment of fees. I therefore consider the time taken to complete the assessment in this case was too long and so is fault.
31. Ms Z was concerned that no fees were being paid to the care home and that this was putting the placement at risk. She contacted the Council in March and was told no decision had been made regarding the payment of fees. Then three days later was given information which indicated a decision had been made and the fees would be paid and she would be invoiced for her contribution. However, no fees were ever paid to the home. I consider the Council failed to give clear and timely information about the care home charges in this case. This is fault.
32. The Council is now saying that the placement was a private arrangement between Mrs X and the care home and that is why it did not pay any fees. I accept it was initially a private arrangement but when Mrs X’s savings fell below the threshold, the situation changed and the Council was required to take action.
33. I have not seen any information to show how the Council properly considered the situation and that it explained this to Ms Z. It is possible the care home was unwilling to accept the local authority rate, so the Council should have explained this to Ms Z and given her options. This would include paying a third party top-up fee so Mrs X could remain in the home. If Ms Z was unable to pay a top-up then the Council needed to carry out a risk assessment to decide if Mrs X was able to move to another home. If this determined she could, then it should have provided options of available care home places within the local authority price range.
34. The Council has provided conflicting information about how it treated the money Mrs X was due to inherit. This includes the complaint response, the case notes and internal advice including legal advice and the response to my enquiries. In response to my enquiries, the Council says that it disregarded the value of the estate Mrs X was due to inherit. It says that a deferred payment agreement was proposed but this could not have been completed until Mrs X was the legal owner of the property. However, it then failed to provide any financial assistance resulting in the care home giving notice to quit on the basis of non-payment of fees.
35. The failure to make timely decisions about the finances, to explain this to Mrs X and Ms Z and to take action to ensure a vulnerable person’s placement was secure is fault. The Council had a preventative duty and so when it was aware the placement was at risk due to non-payment of fees, it should have contacted the care provider to discuss the situation. I note the Council is now saying the care home gave notice due to a breakdown in the relationship and conflict with Ms Z but the evidence I have seen does not support this. The letter from the care home giving Mrs X notice to quit is clear that it took that action due to non-payment of fees and the ongoing uncertainty that this would change.
36. I consider the Council should be responsible for the full cost of the care provided to Mrs X, minus her assessed contribution, between 20 November 2023 and 25 April 2024 because of fault identified in this statement.
37. Ms Z made a formal complaint in March 2024 asking for urgent action because of the possibility Mrs X could be given notice to leave the home. The Council did not provide a response until August, some five months later. I note the Council aims to complete complaint investigations within 20 working days. The time take in this case is fault and caused further distress.

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Action

38. To remedy the injustice caused by the Council’s fault it will, within one month of my final decision, take the following action:
• Apologise to Ms Z;
• Make Ms Z a symbolic payment of £300 to recognise the distress caused and her time and trouble in pursuing the complaint;
• Take action to ensure the full cost of Mrs X’s care home placement between 20 November 2023 and 25 April 2024 has been paid. The Council should ensure the care home is paid any monies still owed and ensure it refunds Ms Z for any payments already made to the care home for this period. It should write to Ms Z explaining actions taken to resolve this and confirming nothing is owed from Mrs X’s estate; and
• The Council should review its processes for completing adult social care financial assessments to ensure they are completed promptly and outcomes shared with those affected in a timely manner.
39. The Council should provide us with evidence it has complied with the above actions.

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Decision

40. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman