Summary: Mrs Y complains about the inadequate advice the Council gave her about the alternatives for funding her late mother’s care. The outcome is they paid top up fees they could have avoided. The Ombudsman upholds the complaint. While we cannot know what would have happened but for the fault, Mrs Y lost an opportunity and this causes uncertainty. The Council has agreed to our recommendations.

The complaint

1. The complainant, whom I shall refer to as Mrs Y, complains about the advice and information the Council gave her about her late mother’s (whom I shall refer to as Mrs Z), care charges. She complains:
• when she first realised the float in Mrs Z’s direct payment account was decreasing, it took a long time to get the Council to respond;
• when the Council did respond, it did not advise her about all her alternatives;
• years later, a new social worker advised of a way of avoiding top up fees. The Council should have earlier given this advice.
2. As a remedy, Mrs Y would like the Council to refund the charges Mrs Z paid that might have been avoided if she had received correct advice. She would also like the Council to learn from its faults.

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What I have investigated

3. I have investigated the second and third of Mrs Y’s complaints as set out in my summary of her complaint (see paragraph 1). At the end of my statement, I explain the reasons for not investigating Mrs Y’s first complaint.

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The Ombudsman’s role and powers

4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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(i), as amended)

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How I considered this complaint

7. I have considered Mrs Y’s complaint and spoken to her. I have also considered information from Mrs Z’s care file the Council sent us.
8. I sent my draft decision to Mrs Y and the Council and considered their responses.

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What I found

Legal and administrative background

Charging for social care services: the power to charge

9. A council has a duty to arrange care and support for those with eligible needs. A council has discretion to charge for non-residential care following a person’s needs assessment.
10. Where a council has decided to charge, it must carry out a financial assessment to decide what a person can afford to pay. The rules about financial assessments are set by national government. After charging, a person’s income must not reduce below a weekly amount known as the minimum income guarantee. (Care Act 2014)

Direct payments

11. Direct payments are monetary payments made to individuals to meet eligible care and support needs. They enable people, who want to, to arrange their own care and support to meet those needs. The council has a key role in ensuring people have relevant and timely information about direct payments so they can decide whether to request them.

Extra care housing and top ups

12. The Care and Support Statutory Guidance (which I shall refer to as the Guidance) has a definition of extra care housing. It says this is either:
• specialist or adapted accommodation; or
• accommodation for occupation by adults with care and support needs, in which personal care is also available, usually from a different provider.
13. The Guidance says the principles councils should follow when arranging extra care housing include:
• good communication of clear information and advice to ensure well informed decisions;
• clear and transparent arrangements for choice and any ‘top up’ arrangements. Top up payments are needed when somebody chooses a setting that is more expensive than a council will pay through a personal budget.
14. In 2018 the Council changed the way it provided extra care housing. Since then it contracts directly with nine extra care housing schemes. The Council works out funding for residents not in those schemes by assessing a ‘personal budget’ for their care needs. This may not cover the full cost of the extra care housing.

What happened

Background

15. In 2015 the Council assessed Mrs Z as needing access to 24 hours a day care. She moved to extra care housing, with an on-site care provider. When Mrs Z moved, the Council was meeting the full cost of the care. The Council agreed to pay Mrs Z by a direct payment. Mrs Y managed the direct payment for Mrs Z.
16. The Council says the accommodation where Mrs Z lived did not tender for its 2018 commissioning exercise for contracts to provide extra care housing (see paragraph 14). That meant, after the change, the Council would only pay for Mrs Z’s care up to the amount of her personal budget.

The start of the need for top ups

17. Mrs Y says the Council never advised her about a need to increase the fees Mrs Z paid for her care. But from the summer of 2018, she had been trying to contact the Council, as she noticed Mrs Z’s direct payment account’s balance was going down. The Council did not respond to her contacts.
18. In January 2019 the Council audited Mrs Z’s direct payment account. It says it found that, since June 2018, the care provider’s fees, were above what the Council was paying Mrs Z as a direct payment. As Mrs Z was not paying a top up, this had led to her direct payment account balance reducing. The Council advised Mrs Y about this.
19. In March, the Council agreed to pay the top up fees that had built up to that time. Its direct payments team contacted Mrs Y and advised:

“From the invoices provided I can see … [the care provider is] charging £16.00 per hour which is higher than the rate paid within [Mrs Z’s]’s support plan. We would advise you contact the social work team for a review of the rate paid via your Direct Payments. If this is not changed, you will need to top up 90p per hour of care provided.”

20. Mrs Y contacted the Council’s social work team. Its social worker noted Mrs Z’s costs had increased again in April 2019. But the Council would not increase the hourly rate it was paying Mrs Z.
21. Mrs Y asked for a new financial assessment of Mrs Z’s finances. She spoke to a manager in the direct payments team. He says he advised Mrs Y that a new assessment would not alter the fact the maximum amount of the direct payment the Council would pay was less than the care charges.
22. Mrs Y says, around this time, a social worker advised her that Mrs Z could change the provider of her care to an off-site care provider. But it would not make a difference to the amount the Council would pay Mrs Z. Mrs Y says due to this advice, she did not see any point in changing provider. So she began to pay a top up for the care fees.

The March 2021 advice

23. In March 2021 Mrs Z’s health worsened and healthcare staff advised the Council she needed more support. That led to the Council assigning Mrs Z a new social worker.
24. As part of her assessment of Mrs Z’s circumstances, the new social worker explored alternatives with Mrs Y. She emailed her to advise that an option for funding Mrs Z’s care was:
• to move from a direct payment account to the Council directly commissioning Mrs Z’s daytime care. That would mean Mrs Z’s contributions would decrease, as she would not have to pay the top up; and
• they could ask the on-site care provider if it would consider providing out of hours care on an ad-hoc basis.
25. Shortly after this, Mrs Z was admitted to hospital. She passed away in April.
26. Mrs Y complained. The complaint response advised:

“..there is no written evidence to show that it was explained clearly or in any depth to you that transferring from [the on-site care provider] to a contracted provider meant that the top up would no longer be required until it was discussed with the social worker in March 2021. The social care team would like to provide their sincere apologies and can assure you that this will be taken forward as learning for the team. Staff will be reminded to document all discussions, including the detail of those discussions.”

27. Mrs Y complained to the Ombudsman. She said:
• Mrs Z loved her flat and did not want to move;
• Mrs Z rarely had to call a carer outside of the scheduled visits. But they all wanted her to continue to live somewhere with the security of having 24 hour care available. That is why they decided to pay the top up, rather than Mrs Z moving;
• if they had known earlier about the alternative of using a different care provider, they would have taken that option;
• she could not have been expected, from the advice the Council gave her in 2019, to know about the alternative of changing to a directly commissioned service.

Was there fault by the Council?

28. The Council was correct to say a financial assessment would not have helped Mrs Z. It could only have looked at Mrs Z’s income and capital (see paragraph 10). It would not have considered the top up, or ways of providing care that would have negated the need for top ups.
29. But the Council accepted in its complaint response it did not have records to show it clearly explained the options available to Mrs Y and Mrs Z for the payment of the care fees, which might have meant no top-ups were needed. This would have been separate and distinct from a financial assessment.
30. My provisional view is that delayed advice was fault. The Council did not meet the requirements of the Guidance to provide good communications, information and advice (and keep accurate records of this). I agree with Mrs Y that she could not have expected to know other alternatives existed.

Did the fault cause an injustice?

31. Mrs Y says, if the Council had earlier given her advice about all the options, she and Mrs Z would have switched Mrs Z’s provider for the daytime care visits. So the injustice is the avoidable top ups they paid.
32. I accept that, more likely than not, if the Council had given Mrs Y and Mrs Z better advice and information, they would have explored the alternative of a directly commissioned daytime care package. That is a lost opportunity, which is an injustice.
33. But we cannot now know what would have happened if Mrs Y and Mrs Z had explored this. The care provider at Mrs Z’s accommodation might not have agreed to provide ad-hoc 24 hour care. Or they might not have been able to find a provider, or the care the new provider gave might not have met Mrs Z’s need in the way as the on-site provider did.
34. But that uncertainty is itself an injustice, that will have caused Mrs Y distress.

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Agreed action

35. The Ombudsman publishes Guidance on Remedies, which we use when deciding on recommendations, for injustice from faults we have found.
36. This says that, where an injustice is non-quantifiable – like distress, lost opportunity, or uncertainty – we will not normally seek a substantive remedy for the person affected, if they are deceased. This is because we can no longer remedy the injustice to that person.
37. But we can recommend actions to remedy injustice to the person bringing the complaint to us (usually a family member or next of kin). So I have considered the injustice to Mrs Y.
38. For the lost opportunity, and the uncertainty about whether things might have been different, I recommended that, within a month of my final decision, the Council
• pay Mrs Y £750 as a symbolic recognition of the distress the fault will have caused her;
• write to Mrs Y providing further information about the learning the Council told Mrs Y it has taken from her complaint (see paragraph 26). And what it is doing differently as a result.
39. The Council has agreed to my recommendations.

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Final decision

40. I uphold this complaint. The Council has agreed to my recommendations, so I have ended my investigation.

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Parts of the complaint that I did not investigate

41. I have not investigated Mrs Y’s complaint about the Council’s lack of contact when (in 2018) she tried to alert it to the decrease in Mrs Z’s account. For the reasons explained in paragraph 5, that part of the complaint is late. I see no reason Mrs Y could not have complained at the time. And, anyway, the Council later paid the top ups. That would likely be equivalent to any remedy the Ombudsman would suggest if we did investigate and found fault. So I do not see that any remaining injustice, from that part of the complaint, would be enough to warrant the public expense of further investigation.

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Investigator's decision on behalf of the Ombudsman