Summary: Miss X complained the Council failed to provide full information regarding Mrs Y’s care home fees or to explain that Mrs Y would be responsible for the cost of 1 to 1 care in addition to the standard care home charges. We found the Council’s failure properly explain how much Mrs Y would be charged for her care, or for what period of time is fault. The Council’s failure to identify a suitable nursing home for Mrs Y is also fault. These faults meant Miss X received an unexpected substantial bill for Mrs Y’s care which caused Mrs Y’s family shock and distress. The Council will apologise and make a symbolic payment to Mrs Y’s family.

The complaint

1. Miss X complained the Council failed to provide full information regarding Mrs Y’s care home fees or to explain that Mrs Y would be responsible for the cost of 1 to 1 care in addition to the standard care home charges.
2. Miss X complained the Council has failed to act in Mrs Y’s best interests by commissioning care home charges of £4,200 per week without giving the family the opportunity to try and source an alternative care home at a cheaper rate.

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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. The Ombudsman’s view, based on caselaw, is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault. We may recommend a remedy for the injustice caused and/or that the council makes service improvements. (R (on the application of ER) v CLA (LGO) [2014] EWCA civ
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(1), as amended)
7. 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

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

Care home charges

10. 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.
11. 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.
12. 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.

Intermediate care

13. Intermediate care and reablement support services are for people usually after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help a person to preserve or regain the ability to live independently.
14. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)

NHS Continuing Healthcare

15. Where it appears a person may be eligible for NHS Continuing Healthcare (NHS CHC), councils must notify the relevant integrated care system (ICS). NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness.

NHS-Funded Nursing Care

16. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined. If the person has such a need and it is determined their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS-Funded Nursing Care.

What happened here

17. Mrs Y was admitted to hospital in March 2024. Prior to her admission to hospital Mrs Y lived at home and received support from her family and a private carer. She was discharged from hospital to Care Home 1 on 1 April 2024. This was initially a discharge to assess placement funded by the Council for six weeks.
18. A social worker contacted Mrs Y’s other daughter, Mrs Z on 22 April 2024 regarding a Care Act assessment for Mrs Y. They also discussed the Council’s charging policy. As Mrs Y had savings above the upper threshold the social worker informed Mrs Z that Mrs Y would pay the full cost of her care after the assessment.
19. Care Home 1 raised concerns about Mrs Y’s behaviour as she was unsettled and would scream and shout throughout the day and night if she was alone. She was also at risk of falls as she tried to get out of bed and at risk of malnutrition as she was not eating or drinking. Care Home 1 said it was unable to meet Mrs Y’s needs and asked the Council to arrange for her to move to a nursing home. It also asked for funding for 1 to 1 care pending a move to a nursing home.
20. The social worker visited Mrs Y on 25 April 2024 to review the placement and complete a care assessment. The social worker agreed care Home 1 could not cope with Mrs Y’s presentation and that she should move to an alternative placement.
21. The assessment document also notes the social worker had spoken with both Miss X and Mrs Z regarding Mrs Y’s care and wellbeing and the financial charges. The social worker confirmed there was no charge at the moment for Mrs Y’s placement at Care Home 1. Once Mrs Y moved she would have a settling in period which would be non-chargeable. There would then be further talks regarding funding and charging once Mrs Y had been reviewed.
22. The Council agreed to fund 1 to 1 support from 29 April to 3 May 2024. This was reviewed and then extended to 9 May 2025.
23. On 3 May 2025 the ICS agreed to fund FNC for Mrs Y once she moved to a nursing placement.
24. The social worker visited Mrs Y again on 10 May 2024 to complete a CHC Checklist and a mental capacity assessment (MCA). The CHC checklist indicated Mrs Y should be referred for a full assessment for NHS Continuing Healthcare. The MCA determined Mrs Y lacked capacity to make an informed decision about where she should be cared for and which accommodation would meet her needs. Following this assessment the social worker made a best interest decision to move Mrs Y to a nursing placement.
25. The Council continued to fund 1 to 1 care and looked for an appropriate nursing home. In early June 2024 Care Home 1 asked for a meeting to try and resolve the situation.
26. At this stage the Council had contacted over a dozen nursing homes, all of which had declined to offer Mrs Y a place or were full. The Council suggested Mrs Y could return to her own home with 1 to 1 care and a robust care package. Miss X and Mrs Z did not consider this appropriate and thought a nursing home was the best option.
27. Miss X says they were repeatedly told Miss X would not need 1 to 1 care once she was in a nursing home as they would have more staff.
28. The Council was unable to identify a suitable nursing home before Mrs Y was admitted to hospital in early August 2024.
29. In July 2024 the Council told Miss X it would complete a financial assessment and work out how much the back dated charges for Mrs Y’s care would be. The Council then wrote to Miss X on 2 August 2024 confirming Mrs Y’s assessed care charges for Care Home 1 were £4,118.94 per week.
30. Miss X queried this charge as they had been told Mrs Y would only have to pay the care home charge, not the additional 1 to 1 care charge on top of this. The Council’s records say an officer advised Miss X to check the invoice when she received it and if she then had any queries about the charges to contact Mrs Y’s social worker.
31. The Council issued an invoice on 29 August 2024 for the period 30 April to 13 July 2024 in the sum of £43,543.08. Miss X again queried the charges as they only expected to pay the care home weekly rate. The Council issued a further invoice on 23 September 2024 for period 13 July to 7 August 2024. This brought Mrs Y’s total charges to £56,333.58.
32. Mrs Y died in September 2024.
33. Miss X continued to question these charges and referred to correspondence from the social worker in July 2024 in which the social worker refers to further funding for 1 to 1 care and says they did not see why it could not be agreed. Miss X said they had not, at any time, been told the 1 to 1 care would be charged to Mrs Y.
34. A finance officer discussed the charges with Miss X on 6 November 2024 and then wrote to her confirming the position. The officer said there were lessons that could be learned and accepted the term “funding” and “funded” made things unclear. However as Miss X was informed Mrs Y would be charged the full cost of her care, the charges would be upheld. The Council did offer to remove the care charges for the notice period 3 to 7 August 2024 and confirmed it would send an amended invoice. Miss X says they have never received a revised invoice.
35. Miss X asked for a breakdown of the cost of the care home and the 1 to 1 care. The Council confirmed the charge for the residential placement alone was £758.94 per week and that the 1 to 1 care was charged at £20 an hour for 24 hour care. This came to a weekly charge for 1 to 1 support of £3,360.
36. In early January 2025 Miss X made a formal complaint about the Council’s failure to find a suitable nursing home or to inform them that care charges would be over £4,000 per week. Miss X said that had they been aware they would have found better, private care for less. She asserted the Council should pay the cost of the 1 to 1 care.
37. The Council’s response noted Care Home 1 had quickly identified they needed additional support to help Mrs Y feel safe and have the support she needed. Care Home 1 had served notice for Mrs Y to leave the home and the only way they could care for Mrs Y until a new placement could be found was to have someone with her at all times.
38. The Council confirmed the initial period of Mrs Y’s placement was arranged as intermediate care provision and was free of charge. Once the Council had completed a care needs assessment Mrs Y’s care was subject to a financial contribution. It said that as Mrs Y has savings above the threshold she was liable for the full cost of her care from the point of the care assessment taking place.
39. In addition, the Council said it was clear from its records that Miss X was involved in discussions about efforts to make Mrs Y feel more settled, including 1 to 1 care.
40. The Council also noted statutory guidance and its own charging policy precluded the Council from making contractual arrangements for a person’s residential care. The exception to this is where the person lacks capacity and/ or access to their own finances and where they have not made lawful arrangements for another person to do so on their behalf.
41. As Mrs Y had been assessed to lack capacity and had not appointed a Lasting Power of Attorney the Council had put in place a contract to pay the care home while Miss X approached the Court of Protection for deputyship. It said that every effort was made to secure a better value alternative arrangement for Mrs Y’s care and that the 1 to 1 care was unavoidable to keep Mrs Y safe.
42. The Council acknowledged it would have been better if Miss X had been informed of the actual cost of the care arranged rather than just that Mrs Y would need to pay the full cost. It said it was looking at its processes to see if this can be improved.
43. The Council said the charges were applicable given Mrs Y’s financial situation and that her estate remained liable for the whole cost of the care she received.

Analysis

44. Miss X was aware Mrs Y would have to pay the full cost of her care home. However she was not aware how much this would be or that Mrs Y would also have to pay the additional cost of 1 to 1 care. The records refer to funding being agreed for 1 to 1 care but there is no record the Council informed Miss X of the actual cost of this. Or that it properly explained that Mrs Y was expected to pay this additional cost rather than it being funded by the Council.
45. It was also unclear at what point Mrs Y would become responsible for the cost of her care. The records show that Mrs Y’s move to Care Home 1 was initially a discharge to assess placement funded by the Council for six weeks. During the care assessment the social worker told Miss X there was currently no charge for Mrs Y’s placement at Care Home 1. There would then be a further non-chargeable settling in period when Mrs Y moved to the new care home. The social worker said funding and charging would then be discussed once Mrs Y had been reviewed.
46. However the response to Miss X’s complaint says Mrs Y became responsible for the full cost of her care immediately after the care assessment. And the invoice is from 30 April 2024, four weeks after Mrs Y moved to Care Home 1. So Mrs Y did not receive six weeks funded discharge to assess care.
47. The Council’s failure to properly explain how much Mrs Y would be charged for her care, or for what period of time at the outset is fault. The Council entered a contract with Care Home 1 and committed Mrs Y to paying over £4,000 per week for her care without discussing or agreeing this with her family. This is fault.
48. It is clear the Council has attempted to identify a suitable nursing home, but despite its best efforts it was unable to do so. The Council’s failure to source an alternative placement at a nursing home is service failure and amounts to fault.
49. Having identified fault I must consider whether this has caused Mrs Y or Miss X an injustice.
50. The poor communication undoubtedly led to distress and uncertainty for Miss X. The 1 to 1 care charges are more than four times the standard weekly rate for the care home. This is a significant extra cost to add to what Miss X may have expected Mrs Y to pay for a care home. Mrs Y had been at the care home for five months before her family were told about the level of charges and it was then almost a further month before they received an invoice. Receiving a bill of this size will clearly have caused shock and distress for Mrs Y’s family. The Council should make a symbolic payment to recognise this injustice.
51. However, it is also clear that Mrs Y needed residential care. This was confirmed by the best interest decision. The 1 to 1 support was a necessary interim measure until a nursing home could be identified. The failure to properly explain these additional charges meant Miss X and Mrs Y were unable to make or take part in an informed decision about Mrs Y’s care or explore other private alternatives. But notwithstanding this fault, I consider the additional 1 to 1 costs would have been necessary to meet Mrs Y’s needs in any event.
52. Miss X says they were told Mrs Y would not need 1 to 1 care if she was in a nursing home. However, as the Council was unable to identify a nursing home that could meet Mrs Y’s needs it is likely, on the balance of probabilities that Mrs Y would also have needed 1 to 1 support in a nursing home. There is no reason to believe the situation would have been any different if Mrs Y’s family had attempted to source a nursing home for Mrs Y themselves.
53. On this basis we would not expect the Council to pay for the additional 1 to 1 care costs.
54. I do however consider the Council should fund the first six weeks of Mrs Y’s stay at Care Home 1 as a discharge to assess placement. It is clear from the documentation that the social worker gave Miss X a legitimate expectation these costs would be covered. Mrs Y’s estate should only be responsible for the cost of the care home placement from 13 May 2024.

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Action

55. The Council has agreed to:
• apologise to Miss X for the shock and distress caused by the failings identified above. 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.
• pay the cost of the first six weeks of Mrs Y’s placement at Care Home;
• pay Miss X £500 to recognise the shock and distress she has experienced as a result of the fault identified;
• remind relevant staff of the importance of providing as much information as possible about charging for adult social care and the costs of the package of care at the time they arrange the care. And to ensure they make a full record of the advice and information given.
56. The Council should take this action within one month of the final decision on this complaint and should provide us with evidence it has complied with the above actions.

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Decision

57. 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