Summary: Mr X complained the Council provided incorrect and misleading information about funding his mother’s residential care. We found the Council at fault because of poor communication and delay which caused avoidable distress, frustration and uncertainty. The Council has agreed to apologise and make a symbolic payment to Mr X and take action to improve its service.

The complaint

1. The complainant, Mr X, complains the Council provided incorrect and misleading information about funding his mother’s residential care. Mr X also complains about delay in the process. Mr X says his mother has been caused avoidable distress and they were not able to make an informed decision about her ongoing care.

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The Ombudsman’s role and powers

2. 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)
3. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
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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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr X 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

Relevant law and guidance

Charging for permanent residential care

8. 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.
9. 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.
10. A financial assessment should be carried out over an appropriate and reasonable timescale. Local authorities should inform the individual of an indicative timescale over which their assessment will be conducted and keep the person informed throughout the assessment process. (Care and Support Statutory Guidance, Paragraph 6.29)
11. 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

12. 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.
13. 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.

14. 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

15. 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.
16. 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.

17. 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.

Key events

18. The following is a summary of key events. It does not include everything that happened.
19. Mr X’s mother, Mrs F, has dementia and other ongoing health issues. Mrs F went to live at a care home on a self-funded basis in June 2023.
20. Mr X contacted the Council in early June 2024 as Mrs F’s savings were approaching the upper capital threshold. A social worker was assigned to Mrs F’s case and completed a Care Act assessment on 9 August.
21. The initial assessment discussion with Mrs F and her family suggested Mrs F may not have 24 hour care needs and noted the possibility of housing with care. Following a discussion with staff at the home the same day the assessment concluded Mrs F met the eligibility for residential care. The care home also highlighted the impact on Mrs F of a move and noted her particular need for familiar staff as evidenced by her weight loss during hospital admissions. There was a discussion about the Council looking at homes that offered its rates, the possibility of a third party top up (and affordability check for this) and that Mrs F would be assessed for what contribution she would need to pay. Mr X advised the Council was already funding some placements at the care home. The Council agreed to ask the care home to see if it would negotiate the costs but it would look for the most cost-effective placement. It was noted the financial assessment had been requested but had not yet been completed.
22. The Council emailed Mr X on 20 August to confirm it was in the process of sourcing the most cost-effective care homes and would be in touch with these details so the family could decide on how to proceed.

23. The Council advised Mr X on 22 August that it had not been successful in negotiating the cost of Mrs F’s current care home but had sourced two potential care homes which would need to complete their own assessment to ensure they could meet Mrs F’s needs. Mr X asked if Mrs F could remain at her current placement as he had viewed the online cost of the proposed home as being more.
24. The Council replied to Mr X on 23 August to say the published costs may be for people self-funding their care but the Council had beds at that care home for £981.74 weekly. It was noted the proposed care home would still need to assess Mrs F to see if it could meet her needs. If not, the Council would consider other homes. The Council reiterated the option of paying a third party top up to enable Mrs F to stay at her current care home which would be £218.26 per week – being the difference between the cost of the potential new home and the current placement. The Council asked how Mr X wished to proceed. Mr X replied the same day to say the family’s main concern was the detrimental impact of moving Mrs F but the third party funding was currently a problem and so the family was going to reassess the position and revert as soon as possible.
25. The Council sought an update on 2 September noting it had sourced a number of more cost-effective homes but these would need to conduct their own assessment. Mr X replied the same day to say they were still considering the options and were waiting for the financial assessment to be completed before they could decide.
26. The financial assessment was completed on 25 September. This found Mrs F’s capital would fall below the £23,250 threshold on 1 November 2024. The Council wrote to Mr X with a copy of the assessment and confirmed Mrs F had been assessed to pay £536.64 per week towards the cost of her care for the first 28 days (due to the payment of Attendance Allowance during that period) and £428.09 per week after that period.
27. The Council contacted Mr X on 27 September as the financial assessment had now been completed and noted funds were due to fall below the threshold at the end of October. The Council confirmed it would made a further sourcing request to check availability at the two care homes with managed beds as the last one had been done in August. The Council confirmed it would not fund the cost of the current home as there were more cost-effective placements but reiterated the option of a third party top up. Mr X replied the same day to say they were still considering the option of a third party top up and asked what level of funding would be provided by the Council. Mr X referred to the weekly figure of £918.74 in the Council’s email of 23 August and asked if this was the minimum or maximum funding level. Mr X confirmed they were keen to keep Mrs F at her current care home.
28. The Council replied to Mr X on 7 October and apologised for the delay. The Council confirmed the rate would be £879.85. The Council stated that when a home was offered that had a managed bed, even if this was a higher rate, it would only pay £879.85 (less the assessed contribution) if it was declined.
29. Mr X responded on 8 October to say he was disappointed the Council would not pay the previously advised amount of £981.74 and asked if there was a right of appeal. Mr X said they had spoken again to the care home which had expressed concern about the impact of a move. The Council replied to say the matter had been escalated and advised an affordability check was required for a third party top up and asked if Mr X wished to proceed with this. Mr X replied to confirm the Council should proceed with the affordability check.
30. The Council provided an update to Mr X on 11 October to confirm there was no right of appeal about the matter. The Council confirmed the rate was £879.85 and it had been unable to source a care home at that cost. However, there were beds in certain homes (managed beds) that were pre-paid and the Council had to use these first even though they were at a higher cost. The Council stated that when the offer was declined for a home with a higher cost, the Council would only pay the rate of £879.85. The Council provided details of its complaint procedure and confirmed it would complete the third party top up affordability check.
31. The Council prepared a Care and Support Plan dated 11 October. This recorded Mrs F’s views and those of her family about wishing to remain at her current care home and the detrimental impact of a move. These views were supported by the manager of the care home. The practitioner’s view is recorded as being satisfied Mrs F required 24 hour residential care and would be unable to live alone or in housing with care due to her night needs. The practitioner noted Mrs F had been at the care home since June 2023 and was happy and settled. Also that more cost-effective options had seen the assessment and felt able to meet Mrs F’s needs. It was accepted there would be a period of unsettlement for Mrs F while she moved to a new placement but it was considered that given time she would settle as she had in her current care home. There were three alternative care homes noted as being possible options including two care homes with a block bed rate of £981.74 and one that could offer a placement at £879.85. This meant the Council would only pay the rate of £879.85 and the third party top up would be £220.15 per week.
32. Mr X complained to the Council in mid-October. Mr X complained about the options of home care or moving to a less expensive care home being discussed in front of his mother at her care home in August. Mr X explained this had distressed his mother and the care home had advised a move would be detrimental to her health and well-being. Mr X noted the weekly cost of the current care home was £1,200 and the family had decided it would try to meet the cost of keeping Mrs F there. Mr X referred to an email dated 23 August that provided details of an available placement at another care home at a weekly cost of £931.74 which also highlighted the possibility of paying a third party top up for Mrs F to remain at her current placement. This was noted as a weekly amount of £218.26 being the difference between the costs of the two care homes. Mr X said the Council’s email of 11 October suggested they had declined the above and so the Council would only pay £879.85. Mr X said this meant the top up required would now be £320.15 weekly. Mr X said they had not declined any offer as they were not able to do so as the financial assessment was not completed until the end of September. Mr X also complained about the number of times he had tried to speak to the Financial Assessment team without success between 25 July and 21 August when he was eventually provided a link to the online form required. Mr X asked the Council to honour the offer to fund the amount stated in its email of 23 August of £981.74. Mr X noted his mother’s savings would reach the threshold of £23,250 on 1 November and asked for the matter to be treated urgently.
33. The Council contacted Mr X on 18 October to confirm the care home had agreed to reduce the weekly cost to £1,100 as previously verbally agreed between Mr X and the care home manager. The Council confirmed it would now complete the affordability check. The Council completed the third party top up affordability check on 18 October.
34. The Council’s County Quality Approval Panel (the Panel) met on 24 October and asked the practitioner to provide an assessment of whether the potential more cost-effective placements identified could meet Mrs F’s needs without a significant impact on her wellbeing to clarify whether a third party top was correct.
35. Mr X telephoned the Council on 24 October about returning the top up agreement form as he remained in dispute about the top up amount. Mr X said they had initially been offered a placement at £981.74 with a top up of £218.20. It was explained that as there was a placement available at the Council’s own rate of £879.85 the top up would have been £320.15. If there had not been anything available at the Council rate the top up would have been lower. Mr X said he now understood this but was annoyed it was not explained properly in August. Mr X said if they had known this, they would have accepted the other placement at the time. Mr X subsequently returned the signed top up agreement to the Council.
36. The Council provided an update to Mr X on 31 October to say a contract had been set up with the care home from 1 November but still needed to be authorised by its Panel.
37. The Panel considered the request to continue the current care home placement at a negotiated weekly rate of £1,100 which would include a weekly third party top up of £220.15 again on 14 November. This noted a review of Mrs F’s Support Plan and the practitioner’s view that there would be an initial period of unsettlement for Mrs F if she moved to a new placement but she would settle as she had in her current care home. The Panel approved the continuation of the current care home placement. It was noted Mrs F continued to require a residential placement and the care home was able to meet her needs. The Panel further noted two appropriate offers of care had been made at other care homes but Mrs F and her family wished her to remain at her current care home and had agreed a third party top up.
38. The Council contacted both Mr X and the care home on 19 November to confirm the placement had been agreed and the Council would take over the contract from 1 November.
39. The Council responded to Mr X’s complaint in mid-January 2025 and apologised for the delay. The Council accepted its email of 23 August 2024 advised a £218.26 third party top up would be payable if Mrs F wished to stay at her current care home and that this figure was incorrect. The Council apologised for this error and the subsequent confusion caused. It was noted this information was subsequently corrected with the rate normally paid as £879.85 less a person’s assessed contribution towards care charges. The Council apologised that the error led Mr X to believe the amount of third party top required had increased because he had not accepted the offer made in August. The Council upheld Mr X’s complaint about the information provided about how much would need to be paid. The Council explained that before a decision was made the Care and Support plan, Assessment and all other relevant information would be considered by its Panel which would consider whether a move would have a detrimental effect on a person’s health and wellbeing. The Panel had met on 14 November 2024 and decided was that while Mrs F could potentially move to another residential placement without detrimental effect it approved continuation of the current care home with a third party top up in place. The Council apologised for the time taken to make this decision and understood the frustration caused. The Council did not uphold the complaint about a potential move but upheld the complaint about the time taken to confirm the decision. The Council also upheld the complaint about communication with the finance team. The Council accepted the financial assessment completed in September took longer than the Council would have liked but noted there were some queries which had also impacted the time taken. It was further noted the assessment was completed before Mrs F’s capital fell below the threshold. The Council did not uphold the complaint of delay. In any event, the Council explained the delay did not lead to the increase in the third party top up as the difference in amounts was due to a mistake in the first amount quoted. The top up payment was only impacted by the price of the chosen placement and the rate the Council would pay. The Council was to issue staff a reminder about third party top ups and how payments were calculated and the rates the Council would pay. The Council would also review its finance teams actions and communication to see how this could be improved for the future.
40. Mr X escalated his complaint in mid-January as he was unhappy the Council had not agreed to fund Mrs F’s care home at a weekly rate of £981.74 as set out in the Council’s email of 23 August 2024. Mr X disputed the subsequent email of 27 September 2024 made any correction to this rate. Mr X noted it was not until the Council’s email of 7 October 2024 that the weekly rate of £879.85 was mentioned with no reference to the previous amount being incorrect. Mr X further noted that the care home had told him the Council was paying more towards other residents’ care fees. Mr X questioned the use of the terms ‘usually and normally’ in relation to the maximum amount as this information was not publicly available.
41. The Council responded to Mr X’s escalated complaint at the end of January. The Council acknowledged the email of 23 August was an offer to fund care at £981.74 per week but stated that any decision on rates payable and third party top ups was made by its Panel and the allocated worker had no authority to agree a different rate to £879.85. The Council explained that the care bed offered to Mrs F was in a care home with beds the Council contracted at a higher cost (block booked beds) to ensure there were always available beds at times of high demand to support ongoing NHS pressures. It was noted 60% of Council funded placements arrived from a hospital discharge. The block booked beds were contracted at a higher cost than other private beds in private residential homes but residents were not charged that higher cost and beds were regarded as beds at the usual weekly cost of £879.85. These homes were able to bring in private residents at a higher cost than the Council was able to provide and are then due to the mixed ratio of residents within such private homes able to offer a lower cost bed to the Council. The Council explained this was the reason the worker gave an incorrect figure in the email of 23 August. The Council provided a further apology for the confusion.

The Council also clarified the contents of some of its email correspondence with Mr X. The Council noted its email of 27 September stated “The Social Services rate is £879.95. When a home is offered that has a managed bed, even though if this has a higher rate, if it is declined, we will only pay the amount of £879.85, less the contribution that has been assessed.” The Council its email of 7 October stated “When a home is offered that has a managed bed, even though if this has a higher rate, if it is declined, we will only pay the amount of £879.85, less the contribution that has been assessed.” The Council said this referred to a place in a residential home being offered, and understanding the family had declined a move for Mrs F to one of the homes with a managed bed and was not referring to them declining an offer of £981.74 but rather declining the choice of residential home offered. The Council apologised if the email was not clear.

42. The Council also provided an explanation of how rates were calculated. It set out that where a person declined a block bed placement (a care home which accepted the Council rate of £879.85) in favour of a placement at a higher weekly fee, the rate used to calculate the third party top up would be the price the residential care home chosen is charging less the usual price the Council paid. In this situation Mrs F’s current care home agreed to accept a lower amount of £1,100 than their usual rate. The calculation was therefore £1,100 less £879.85 the rate the Council would pay which provided a balance of £220.15 as a third party top up. The Council could not comment on what it paid for other residents as their personal circumstances may be different. The Council confirmed it used the terms ‘usual’ and ‘normal’ in the everyday meaning of being typical.
43. Mr X complained to the Ombudsman as he wanted the Council to honour the original weekly rate of £981.74. Mr X says if the family had been made aware that the original amount was incorrect and the amount the Council would contribute was going to be less they would have tried to renegotiate an affordable figure with the care home. Mr X says the family is now faced with a monthly bill that they cannot afford and the prospect of having to move their mother which will cause her significant distress.

Analysis

44. The Ombudsman is not an appeal body. It is not our role to carry out financial assessments or decide what contribution someone should make to their care costs. Our role is to investigate the process a council followed, to assess whether it made its decision properly. We look for evidence of fault causing injustice to the complainant. We cannot question the professional judgment of council decision makers where the process was not affected by fault.
45. We do expect councils to provide clear and accurate information about requirements to make a financial contribution towards care. This is to enable informed decision making.
46. The Council has already accepted the information it provided in August 2024 about how much would need to be paid was incorrect. The Council has accepted it provided an incorrect weekly figure of £981.74 when advising Mr X of the rate the Council would fund. The initial information also provided an incorrect figure for the third party top up of £218.26 per week. This is fault.
47. The Council has noted the allocated worker would not have had the authority to agree this figure. However, it is understandable that the family would have believed the Council would fund at £981.74 per week and I am satisfied they were caused avoidable distress and frustration when the new, lower figure of £879.95 was provided on 7 October 2024. I note the top up now being paid is £220.15 (due to the negotiated reduction in the care home fees).
48. The Council has also accepted it took too long to confirm the decision about Mrs F’s placement and there was some poor communication with its finance team. I am satisfied this fault will also have caused Mr X a degree of uncertainty and additional frustration.
49. The aim of our remedies is to try and put the person back into the position they would have been in ‘but for’ the fault. Mr X should have been told in August 2024 that the amount the Council would pay towards Mrs F’s weekly care home fees was £879.95 with the third party top up being the amount between this and whatever rate was negotiated with the care home. This would also have avoided the confusion in subsequent correspondence.
50. In these circumstances, I cannot say the Council should fund the placement at the original weekly figure quoted of £981.74. There was a delay between 23 August and 7 October before the correct figure was provided. This is regrettable and was compounded by the failure to provide a clear explanation for the reason for the different figures until some considerable time later. But Mr X was aware of the amount the Council would pay from 7 October and that the care home had reduced its weekly fee to £1,100 from 18 October. The Council completed an affordability check for the third party top up at this point and Mr X and his brother agreed this in the knowledge it was for more than originally expected. It was open to Mr X to make an informed decision at this point about his ability to help fund Mrs F’s ongoing care fees. It was clear there would need to be a significant third party top up from the outset. This remains the case.
51. It is too speculative to be able to say, even on balance, that Mr X would have been successful in negotiating a further reduction in the care home fees armed with the correct information at the time.
52. There was also a significant delay in providing a response to Mr X’s October 2024 complaint until mid-January 2025. This is fault. I note the Council remained in contact with Mr X during this period.

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Action

53. Within one month from the date of my final decision, the Council has agreed to take the following action:
1. apologise to Mr X for not providing accurate and clear written information about charging and its delay and poor communication;
2. pay Mr X £750 to acknowledge his distress, frustration and uncertainty;
3. provide a copy of the staff reminder about third party top ups referred to in its complaint correspondence to the Ombudsman; and
4. brief relevant staff of the importance of keeping family members informed of progress when carrying out financial assessments and provide a copy to the Ombudsman.
54. 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.
55. The Council should provide us with evidence it has complied with the above actions.

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Decision

56. 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