Summary: Mr X complains the Council failed to offer Mrs Y a choice of accommodation and wrongly charged her a top up fee. We found the failure to offer Mrs Y alternative accommodation which did not require a top up is fault. The Council will apologise for any uncertainty this caused.

The complaint

1. Mr X complains the Council failed to offer Mrs Y a choice of accommodation and wrongly charged her a top up fee.
2. Mr X is the executor of Mrs Y’s estate. Miss Z has raised this complaint on Mr X’s behalf.

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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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the relevant available 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(1), as amended)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

7. I considered evidence provided by Miss Z and the Council as well as relevant law, policy and guidance.
8. Miss Z 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

Residential care

9. 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.
10. 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.
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.
12. The value of a property may be included in the financial assessment. The council must disregard the value of a person’s property for the first 12 weeks of a permanent care home placement. If a person does not want to or is unable to sell their home, they may be able to enter a deferred payment agreement with the council. The Council will pay the care home fees and claim the money back later.
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. This also extends to shared lives, supported living and extra care housing settings.
14. 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.

15. 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.

What happened here

16. Mrs Y was admitted to hospital in early November 2023 following a fall. At that time, Mrs Y lived in her own property with a package of care. After a week or so Mrs Y moved to a community hospital for rehabilitation. Mrs Y’s mobility had declined and she now needed support from two people and equipment to mobilise. Mrs Y’s family and professionals agreed she should not return to her home and would need residential care.
17. Mrs Y’s daughter, Mrs X initially wanted to move Mrs Y to a care home closer to where she lived, almost 100 miles away. The Council agreed to provide information on ‘out of area’ care and sent Mrs X a link to Adult Social Care information sheets on the Council’s website.
18. The Council’s records show Mrs X told Mrs Y’s social worker in late November 2023 that Mrs Y had been talking about moving back to Town A for the last few weeks and was looking forward to seeing her friends. Mrs X said she had not yet looked at care homes where she lived and would be out of the country for a few weeks. She said that prior to Mrs Y’s fall they were investigating a respite placement and had identified Care Home 1, in Town A, as a possible placement. As Care Home 1 only offer respite for two or three weeks Mrs X told the social worker this could become a permanent placement.
19. The notes of the conversation say Mrs X told the social worker that Care Home 1’s fees were £1520 and that Mrs Y would pay a third party top up from her savings as Mrs X could not afford to pay the top up. The notes also say Mrs X would not want Mrs Y to be discharged to any other care home in Town A as they had poor Care Quality Commission (CQC) ratings.
20. Mrs X and the social worker also discussed Mrs Y’s finances including a 12 week property disregard and deferred payments as Mrs Y owned her property. The notes say Mrs X understood Mrs Y would fund her own care charges once her property was sold.
21. Mrs X arranged for Care Home 1 to assess Mrs Y in early December 2023 and the home then confirmed it could offer her a place.
22. On 18 December 2024 the Council told Mrs X that funding for Care Home 1 had been agreed and the sourcing care team would look to negotiate the rate and admission date. The Council also told Mrs X that once Mrs Y was self-funding following the sale of her house, if her capital fell below the threshold she may have to move to another care home.
23. The Council then contacted Mrs X on 21 December 2023 to confirm it had agreed to pay £1200 per week for Mrs X’s nursing placement at Care Home 1. Mrs Y’s weekly contribution to the cost of her care was £172.80 and the top up would be £375. The Council asked Mrs X to sign and return the financial agreement and said Mrs X would move to Care Home 1 that day.
24. The 12 week property disregard funding period ended on 14 March 2024.
25. On 14 May 2024 the Council completed a financial assessment and sent Mrs X a breakdown of Mrs Y’s charges. It explained that for the first four weeks Mrs Y paid a weekly contribution of £172.80 plus the top up of £375. For the final eight weeks of the 12 week period Mrs Y’s contribution was £147.46 per week plus the top up fee.
26. Then from 15 March 2024 Mrs Y was self- funding the full cost of her placement at Care Home 1. The Council confirmed it would process the deferred payment application and send Mr X details of Mrs Y’s new contribution for the deferred payment period.
27. Mrs Y died in early June 2024.
28. On 10 September 2024 the Council sent Mr X an invoice for Mrs Y’s care charges for the period March 2024 to June 2024 in the sum of £12,179.39. Mr X paid this sum in full on 19 November 2024.

Complaint

29. On 14 June 2024 Miss Z made a formal complaint to the Council. Miss Z complained the Council had not offered any alternative accommodation which did not require a top up. Mrs Y’s family therefore agreed to fund the top up fee as they were not aware this was not mandatory.
30. Miss Z asserted that as the family were not given a genuine choice in relation to accommodation the Council should not have charged the top up fee. Miss X asked the Council to reimburse the top up fees.
31. The Council responded in early August 2024 and apologised for the delay. It said its records showed the decision to discharge Mrs Y from hospital to Care Home 1 was made in agreement with Mrs Y and Mrs X. The Council said Mrs Y was clear she wanted to move to a care home in Town A and there were no options available in the area at the Council’s rates.
32. The Council did not uphold the complaint. It said it made it clear to Mrs Y and Mrs X that if they wanted a care home in the Town A, there would be a top up. The Council had also provided information sheets which clearly explained its rates for nursing care and the process for choosing/ finding a home at the Council’s rates. It had also agreed to pay £1200 per week for the 12 week property disregard period despite its usual rates being £750 per week.
33. It said Mrs X did not like the other care homes in Town A and wanted Mrs Y to go to Care Home 1. Mrs Y was happy with his decision and as there was a property disregard agreement Mrs Y was allowed to pay the top up.
34. Miss Z maintained the Council had not complied with the law and statutory guidance as it had not offered Mrs Y alternative placements within Town A. As such the Council could not lawfully charge the top up fee. Miss Z asked for the complaint to be considered further.
35. In its response the Council again noted Mrs X wanted Mrs Y to move to Care Home 1 and had approached them herself to start the assessment process. It said there was no need to explore further options as Mrs X and Mrs Y had chosen Care Home 1 and they could accommodate Mrs Y.
36. As Mr X remains dissatisfied with the Council’s response, Miss Z has asked the Ombudsman to investigate the matter. In response to our enquiries the Council has again confirmed there were no other homes in Town A which could have met Mrs Y’s needs and would not have required a top up.
37. The Council has also highlighted Mrs X’s telephone conversations with a social worker in late November 2023, referred to in paragraphs 17 to 19 above. It has emphasised that Mrs X was aware of Care Home 1’s fees and confirmed that Mrs Y would pay the top up from her savings.

Analysis

38. The documentation available shows that the Council discussed the funding of Mrs Y’s care home placement with Mrs X. It also referred her to the information sheets on its website. These documents include information on choosing a care home; paying for residential care, including where a top up is required; self -funding and information for homeowners moving into a care home.
39. The Council’s records refer to discussions about Mrs Y’s savings, the 12 week property disregard and deferred payments and it is clear Mrs X understood Mrs Y would be self-funding her care. While there is no specific reference to a discussions about top up fees, the records of the conversation 28 November 2023 show Mrs X was aware of the need for a top up at Care Home 1. Mrs X’s reference to Mrs Y paying the top up as she could not afford it also suggests Mrs X had some understanding of how/ by who the top up fee could be paid.
40. The Council says there was no need for it to explore further options as Mrs X and Mrs Y had chosen Care Home 1 and the home could meet Mrs Y’s needs. However the law and guidance is clear that the Council must ensure Mrs Y had a choice of accommodation and that at least one accommodation option was available and affordable within Mrs Y’s personal budget.
41. The failure to offer Mrs Y alternative accommodation which did not require a top up is fault.
42. It is not however clear that but for this fault the outcome would have automatically been different. The records show Mrs Y wanted to return to Town A. The Council has confirmed there were no other homes in Town A which could have met Mrs Y’s needs and would not have required a top up. Even if there had been, Mrs X was clear that she did not want Mrs Y to move to any other care home in Town A.
43. This means that had the Council offered Mrs Y alternative accommodation that did not require a top up this would not have been in Town A. It is not possible to say, even on the balance of probability whether Mrs Y would have accepted a care home placement in another town or area, to avoid having to pay a top up, having already chosen Care Home 1. There is no record Mrs X considered any care homes in Somerset outside of Town A.
44. Ms Z asserts that as Mrs Y considered moving out of the area to be nearer her daughter, she would have been open to considering moving to a care home outside Town A without a top up.
45. Mrs X did initially indicate she wanted Mrs Y to move closer to her own home, but the records also confirm she did not pursue this and instead chose a placement at Care Home 1. Mrs Y’s willingness to move to a home closer to her daughter, so that she could see her more often, does not in itself mean she would be willing to move to any other area/ town within Somerset.
46. In the circumstances we would not recommend the Council reimburse the top up fees Mrs Y paid between January and March 2024. The Council should however apologise for the failure to offer Mrs Y a choice of accommodation that did not require a top up and any uncertainty this may have caused.

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Action

47. The Council as agreed to:
• apologise to Mr and Mrs X for failure to offer Mrs Y alternative accommodation which did not require a top up payment and any uncertainty this may have caused. 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.
• provide reminders/training to relevant staff of the need to ensure service users have a genuine choice of accommodation and are offered at least one available and suitable care home within their personal budget without the need for a top up fee.
48. The Council should take this action within one month of the final decision on this complaint and provide us with evidence it has complied with the above actions.

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Decision

49. I find fault causing injustice.

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Investigator's decision on behalf of the Ombudsman