Summary: Mr Y complained the Council failed to source a suitable nursing home for his mother, Mrs X, which meant he had to pay third-party top ups when Mrs X moved to a nursing home. There was fault by the Council for its failure to provide Mrs X with at least an option of one available, and affordable respite nursing care home. This caused distress and uncertainty to Mr Y. The Council will take action to remedy the injustice caused.

The complaint

1. Mr Y complained about the Council’s failure to source a suitable nursing home for his mother, Mrs X, when she was discharged from a rehabilitation centre in July 2024. Mr Y said as a result, he had no option but to pay for a more expensive nursing home for Mrs X with a third-party top up payment.
2. Mr Y said the matter caused him additional distress to an existing stressful situation with Mrs X’s care needs. Mr Y also said the matter caused him financial loss because he had to pay the third-party top up between September and October 2024 when Mrs X was at the nursing home.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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.
5. 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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What I have and have not investigated

6. I have investigated matters from July 2024 to December 2024. This covers the period from when Mrs X was to be discharged from a rehabilitation centre to when Mr Y made a complaint to the Ombudsman in December 2024.

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How I considered this complaint

7. I considered evidence provided by Mr Y and the Council as well as relevant law, policy and guidance.
8. Mr Y and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law and guidance

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.
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.
12. 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. 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.
13. Where 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.
14. Residential care homes focus on personal care and support with daily activities while Nursing care homes also provide round-the-clock on­-site nursing care for residents with more complex needs and administer medications.
15. Lasting Power of Attorney is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or finances and property, for when they become unable to do so for themselves. The ‘attorney’ is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.

Council’s Choice Policy and Charging Policy

16. The Intention of the Council is to offer choice of one or more providers through commissioning processes. Where available options are limited, we will work with the service user and/or representative to ensure that care and support needs are met in accordance with Council responsibilities.
17. The Council will not fund a registered placement or care support package where the cost of the service user care package exceeds the best available option that has been identified. The best available option will determine the service user’s personal budget.
18. If a service user wishes to purchase a more expensive service that has been identified to meet their eligible needs, then the Council will usually agree to fund at the personal budget rate (less any assessed contribution). The Care and Support Plan will explain how the additional cost or service level will be funded or provided, either by the person, or a third party (for example a relative).

Background

19. Mr Y has lasting power of attorney to manage Mrs X’s health, welfare, property and finances.
20. Mrs X has some health conditions, and due to a decline in her health, she was admitted to the hospital in June 2024.
21. Mrs X was subsequently moved to a rehabilitation centre to ensure her mobility and health improved before she was discharged. The Council said it would need to assess Mrs X’s needs due to her changing needs. It considered it was likely Mrs X may be moved to a residential care home at some point due to her day and night care needs. The Council sent a link of its Choice Policy to Mr Y which explained its care and support services and its charging policy, should Mrs X move to a care home.

Key events

22. In mid-July, the rehabilitation centre informed the Council it was ready to discharge Mrs X to her home with a Council commissioned care package.
23. Mr Y disagreed it was safe for Mrs X to return home due to her mobility issues. Mr Y said he would like Mrs X to spend more time at the rehabilitation centre or be moved to a care home for a few weeks respite. This was so Mrs X could fully recover before she returned to her own home.
24. The Council reassessed Mrs X care needs. It was agreed Mrs X would be discharged from the rehabilitation centre to a residential care home for four weeks respite before she could return to her home with a care package.
25. On 18 July, the Council contacted a residential care home for Mrs X’s respite placement but there was no availability. The Council informed Mr Y and the rehabilitation centre.
26. Mr Y chased the Council for updates and asked if the Council would help with some of Mrs X’s care fees if he found a temporary placement for her, even if it meant adding a top up from Mrs X’s money.
27. The Council advised Mr Y and Mrs X’s family that they could also search for care homes for Mrs X. The Council sent an email to Mr Y that a third-party top up would be required where the care fees was more than the total amount of a client contribution and the Council’s contribution towards Mrs X’s care. The Council also referred Mr Y to its Choice Policy which it had previously sent to him.
28. Between July and August, the Council continued to search for a suitable residential care home. On 25 July and 12 August respectively, the Council received offers from two other residential care homes without third-party top ups. Mr Y and Mrs X’s family declined the offers as they felt there were unsuitable for Mrs X.
29. In mid-August, Mr Y questioned why the Council omitted one of Mrs X’s health conditions in her care plan which required all day monitoring. Mr Y said a residential home would not be able to provide Mrs X with the appropriate care and support she needed.
30. The Council acknowledged Mr Y’s points and it updated Mrs X’s care plan to reflect Mrs X’s omitted health condition. The Council told its brokerage team to change its search to a respite nursing home for Mrs X. The Council started its search for a suitable nursing home for Mrs X.
31. Mr Y found a nursing home (Home 1) for Mrs X. On 20 August, Home 1 offered Mrs X a four-week placement which cost £1,564.12 per week.
32. The Council also said it found a nursing home (Home 2) a respite placement for Mrs X at £1,264.12 per week. Home 2 did not make a formal offer for Mrs X.
33. Mr Y said he contacted Home 2, and it was not aware of Mrs X. Mr Y also said Home 2 told him it was only able to accept a minimum of six weeks respite placement.
34. Mr Y informed the Council that Mrs X’s preference was Home 1. The Council said it could fund £1,264.12 per week out of the £1,564.12 per week placement offer fees in line with its Choice Policy. The Council also told Mr Y a £300 per week would be required to be paid as a third-party top up. The Council’s contribution was set at the rate of Home 2’s fees.
35. Mr Y said he was happy to pay the £300 per week third-party top up fee for the four weeks Mrs X would be at Home 1. The Council said it would arrange the funding for Mrs X’s respite placement.
36. At the end of August, the Council received formal offers from two nursing homes, Home 3 and Home 4. The proposed placement weekly fees were £1,514.12 and £1,200 respectively.
37. Mr Y completed and submitted the third-party top up form for Mrs X’s four weeks respite placement at Home 1 to the Council. The Council agreed to the funding for Home 1 to start from 2 September to 30 September with the agreed £300 third-party top up.
38. Mrs X moved into Home 1 on 2 September.
39. Mrs X spent a total of five weeks respite; the additional week was agreed by the Council. On 6 October, Mrs X left Home 1 and moved back to her own home with the Council’s commissioned care package.

Complaint

40. Mr Y formally complained to the Council about its delays to arrange and its failure to offer a suitable respite placement for Mrs X without the need for third-party top up. Mr Y said Mrs X was keen to leave the rehabilitation centre and it was upsetting for the Council to force her to remain at the centre rather than move her to a nursing respite placement as agreed.
41. In its response to Mr Y’s complaint, the Council apologised for the time it had taken to arrange and move Mrs X to a nursing care respite placement. The Council said this was due to the change from residential to nursing care home for Mrs X due to the change in her needs and the confusion about Home 2 making a formal offer. The Council said Home 1 (Mrs X’s preference) was not cost effective, but it considered it and advised Mr Y a third-party top up would be required which he formally agreed to pay. The Council referred Mr Y to its Choice Policy which it had explained and sent to him.
42. Mr Y remained dissatisfied with the Council’s response, and he made a complaint to the Ombudsman. Mr Y said due to the Council’s failings, he had to pay a total of £1,457.14 for third-party top up for the five-week period Mrs X resided at Home 1.
43. In its response to our enquiries, the Council said:
1. its contribution of £1,264.12 towards Mrs X’s care fees was set at the rates of nursing homes available at the time.
2. it made some offers of residential care homes to Mrs X (25 July and 12 August) but her family and Mr Y declined, and they were keen on Mrs X moving to Home 1 (her preference).
3. it had provided Mr Y with its Choice Policy, advised him it would not consider Home 1’s offer except a third-party top up was available and that Mr Y agreed to pay the top up.
4. it also advised Mr Y about the outcome of Mrs X’s financial assessment and the assessed contribution towards her care fees.
5. it received offers from two available and suitable nursing homes (Home 3 and Home 4) for Mrs X, but the Council could not confirm from its records whether Mrs X’s family was informed about both offers.
6. due to the delayed arrangement to move Mrs X from Home 1 back to her own home after the agreed four-week respite period, it offered to refund Mr Y with the £300 third-party top up he paid for the additional respite week Mrs X spent at Home 1.

Analysis

44. The crux of Mr Y’s complaint is about the Council’s delays with arranging and its failure to offer at least one suitable care home for Mrs X which required no third-party top up fee.
45. When the rehabilitation centre informed the Council that Mrs X would be discharged in July, it acted promptly with reassessing Mrs X’s care needs. The Council also decided a respite residential care home would be appropriate to meet Mrs X’s care needs at the time as opposed to a discharge to her own home with a care package as advised by the rehabilitation centre. These were not faults.
46. Where the Council has established a person’s needs are best met in a care home, it must provide the person with at least one available and affordable accommodation option. Before the search changed from residential to nursing care home, the Council was able to find two residential care homes without top ups for Mrs X which Mr Y declined. This was not fault.
47. Councils must consider residents’ wishes and preferences about the care home they wish to go but it must not cost the council more than it would usually pay for that sort of accommodation in meeting the resident’s assessed needs. Councils cannot reject a preferred care home based on cost grounds before a viable alternative care home is found. And the council’s duty to accommodate can be regarded as discharged if the resident and/or their representative unreasonably refuse to accept the accommodation provided.
48. In this case, Mr Y and the family found a nursing care home (Home 1) which was Mrs X’s preference, and the weekly fee was £1,564.12. This was more than the weekly rate of £1,264.12 the Council agreed to fund towards Mrs X’s care fees.
49. The Council considered Mrs X’s preferred care home option and it informed Mr Y that he was required to pay the difference of £300 per week as third-party top up which he agreed to pay. But I find the Council did not discharge its duty to offer a choice of placement. This is because after the change in Mrs X care needs and the type of respite care home required to meet her needs, there was no evidence to show the Council provided Mrs X with an offer of a nursing care home. The Council received offers at the end of August from two nursing homes (Home 3 and Home 4), but it did not inform Mr Y of the offers. This was fault.
50. I find the Council’s failure to discharge its duty to provide a viable alternative nursing care home for Mrs X meant Mr Y was not provided with options to make an informed decision about the nursing care home he might have chosen for Mrs X such as Home 4 which offered £1,200 weekly fee. This caused distress and uncertainty to Mr Y.
51. However, I cannot say if Mr Y would have accepted either of the Council’s nursing care home offers. And on balance, I find even if Mr Y had been offered Home 3 and Home 4, he would not have taken it given Mrs X and Mr Y were keen to move Mrs X to Home 1 which was her preferred placement. Therefore, I find the injustice caused to Mr Y was mitigated.

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Action

52. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Mr Y and make him a symbolic payment of £300 to acknowledge the distress and uncertainty caused to him by the Council’s faults as identified above. The apology should be in accordance with our guidance, Making an effective apology
• give clear information and train relevant staff about the importance of making at least one formal offer of a care placement which is available and affordable within service users agreed personal budgets.
• remind relevant staff to formally notify service users and/or their families and representatives of care home placement offers, and the Council should record on its system the date and details of the offers made.

53. The Council should provide us with evidence it has complied with the above actions.

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Decision

54. I find fault by the Council causing injustice. The Council will take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman