Summary: Mrs Y complained on behalf of her mother, Mrs X. Mrs Y complained about how the Council dealt with securing a residential care home for Mrs X and how it dealt with her care charges. There were some faults by the Council which caused injustice to Mrs Y. The Council will take action to remedy the injustice caused.

The complaint

1. Mrs Y complained about how the Council dealt with her mother’s (Mrs X) care charges. In particular that the Council:
1. did not follow its policy and procedure of arranging and securing a residential care home for Mrs X between February 2023 and April 2023
2. provided Mrs Y with conflicting information about whether the two weeks trial respite period Mrs X had when she moved into a care home on 17 April 2023 was chargeable
3. incorrectly completed financial assessments for Mrs X which does not leave her with the minimum personal expenses allowance of £34 per week
4. failed to take account of Mrs X’s previous contributions towards her care costs when it raised invoices for her care cost at the care home.
2. Mrs Y said the matter caused her significant distress, time and trouble chasing different Council’s departments for updates and to correct the various errors it made with Mrs X’s case. She said the matter also caused financial loss to Mrs X.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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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What I have and have not investigated

7. I have not exercised discretion to investigate matters before February 2023. These are late complaints and I consider it was reasonable for Mrs Y to have complained to us earlier if she was dissatisfied with the Council’s response to her complaint.
8. I have investigated matters from February 2023 to October 2023. This covers the period when Mrs Y contacted the Council about moving Mrs X into a residential care home to the Council’s final complaint response.

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How I considered this complaint

9. I have discussed the complaint with Mrs Y and considered information she provided. I also considered the information the Council provided in response to my enquiries.
10. I sent Mrs Y and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Law and guidance

11. Direct payments are a funding choice in personal budgets. They allow a person to purchase their own care and support services, with the aim of maximising the person’s involvement and control over how their needs are met.
12. Councils must carry out a financial assessment to make a decision about care charges. This will assess the person’s capital and income. People who have assets over £23,250 have to pay the full cost of their care. If they own property, that is taken into account.
13. Once a council completes the financial assessment, it must give a written record of the assessment to the person. It should explain how the assessment has been carried out, what the charge will be, how often it will be made and if there is any fluctuation in charges, the reason. Councils should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice.
14. Personal Expenses Allowance (PEA) is the mandatory weekly amount the government says people receiving care in council commissioned care homes should have as a minimum for their personal expenses. The PEA for 2023/2024 financial year was £28.25 per week.
15. Service users must be left with the full value of their PEA, and it is then up to the service users to determine how they spend it.

Council’s Charging Policy for Adult Social Care

16. Charges are applied from the date the service user starts to receive the service. Those who are financially assessed as able to pay towards their care costs must pay their contribution directly to the care home. Unpaid contributions are considered a debt.
17. Financial assessment considers the whole of the service user’s support package, which includes long-term and short-term/respite residential care.
18. Where a service user receives short-term or respite care in a residential care home, the Council may not be able to complete the service user’s financial assessment before their care starts or ends. The service user will be asked to pay a standard amount until their financial assessment is completed. Once the Council confirms the amount the service user will pay, their actual contribution will be backdated to the date they went into the care home.
19. Service users in a care home will pay most of their income towards their care and support. The Council must leave the service user with a set amount of their income for personal items. This is called the personal expenses allowance.
20. 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.

Key events

21. Mrs X has dementia. Mrs Y manages Mrs X’s financial affairs, health, and welfare decisions as her lasting power of attorney.
22. Before Mrs X moved into a residential care home, she received domiciliary care, and attempted to attend a Council commissioned Day Centre. Mrs X had a direct payment (DP) account set up for her care costs with four weeks home-based rolling respite and made contributions towards her care.
23. Due to an increase in Mrs X’s care needs, Mrs Y decided Mrs X may need residential care. Mrs Y asked the Council for names of care homes suitable for Mrs X.
24. The Council provided Mrs Y with a list of care homes that accepted the Council’s care rates and allowed Mrs Y an opportunity to view them. Mrs Y said she visited all the care homes on the list, and she told the Council her preferences. The Council contacted Mrs Y’s preferred care homes, but they were either unavailable, required a third-party top-up, or unsuitable to meet Mrs X’s care needs.
25. Mrs X’s health condition continued to deteriorate. Mrs Y told the Council Mrs X needed an urgent residential care home and so she widened her search using the Council’s care home link and visited more homes. Mrs Y was able to secure a care home for Mrs X which was not on the Council’s list. The Council contacted the care home and confirmed it accepted the Council’s care rates. Mrs X’s allocated worker sought management approval for the urgent residential placement for an initial 2 weeks which would subsequently become a permanent placement. The allocated worker said this was so the Council could complete a mental capacity act (MCA) assessment for Mrs X for a permanent placement at the care home. The Council explained this to Mrs Y.
26. Mrs Y asked the Council if Mrs X could continue to use her DP banked hours to attend the Day Centre during her transition period to the residential care home. The Council said it would close Mrs X’s DP account once she moved into the care home. The Council also said any unused DP funds would be returned to the Council and the client contribution would be refunded (if applicable) to Mrs X.
27. The Council told Mrs Y it would complete a new financial assessment (FA) to assess Mrs X’s contribution towards her residential cost. It told Mrs Y that until it completed the FA, Mrs X would pay the standard respite rate £172.80 per week and the Council would contribute £561.78. The Council said after Mrs X’s FA was completed and her residential care was permanent, it would backdate the charges to the start of Mrs X’s residential care.
28. Mrs X moved into the care home on 17 April 2023. Mrs Y told the Council she would like Mrs X to initially try the care home for respite to see whether she would settle in before she moved in permanently. Mrs Y asked the Council if she could use Mrs X’s DP funds for the respite period at the residential home because the funds included four weeks respite which remained unused.
29. The Council reiterated its previous response and explained it was not possible for Mrs X to use her DP to pay her client contributions towards her care charges at the care home. The Council said this was because client contributions must be paid from the service user’s own funds and not from DPs. It said financial arrangements for residential care were different and that Mrs X’s DP home-based respite could not be used for the respite period at the care home. The Council reiterated the client contribution of £172.80 per week should be paid from Mrs X’s account/savings until it completed her FA and then charges would be backdated after the FA.
30. Mrs Y said this was different to previous advice from the Council in 2022. The Council’s advice was unreconciled banked hours could be used for Mrs X’s care and activities.
31. Mrs Y made a formal complaint about how the Council dealt with securing a residential care home for Mrs X. She said the Council provided her with a list of care homes that had no availability and required third party contributions. Mrs Y said the Council failed to inform her it contracted an outsourced provider with daily vacant bed updates. And so, there was a missed opportunity to have secured a local emergency placement for Mrs X. Mrs Y also complained the Council did not originally tell her Mrs X’s initial 2-week trial respite period at the residential care home would be chargeable. Mrs Y said the Council provided her with conflicting information about how Mrs X’s DP banked hours/funds could be used.
32. In April 2023, MCA and FA assessments were completed for Mrs X. The Council sent the care home and Mrs Y two FA letters which set out Mrs X’s residential care cost contribution:

• £127.54 from 17 April 2023 to 30 April 2023 (temporary/ initial 2 weeks respite period).
• £461.99 from 1 May 2023 to 14 May 2023, and £393.89 from 15 May 2023 (permanent care).
• £28.25 weekly PEA plus £6.50 pension credit savings disregard (total of £34.75 per week) for both the temporary and permanent care periods.

33. On 1 May 2023, Mrs X’s placement at the care home became permanent. The Council closed and reconciled Mrs X’s domiciliary care DP account. The Council asked Mrs Y to pay an outstanding client contribution against Mrs X’s DP account of £1,036.14 (from 14 June 2022 to 16 April 2023).
34. Mrs Y continued to raise several concerns with the Council. These included the incorrect weekly PEA of £51.53 per month instead of £34.75 per week, invoicing issues and why Mrs X received 13 payments in a year for her state pension from Department for Work and Pensions (DWP) instead of weekly payments.
35. The Council contacted Mrs X’s care home and it confirmed the correct invoices had been issued to Mrs X based on the FA outcomes.
36. The Council asked Mrs Y to provide further information about Mrs X’s finances and in August 2023, the Council completed an FA review for Mrs X. The outcome of Mrs X’s client contribution for the temporary/initial 2 weeks respite period (£127.54 per week) remained the same but the PEA was reduced (£25.65). Mrs X’s contribution for the permanent care period changed to £459.30 from 1 May 2023 to 14 May 2023, and £391.20 from 15 May 2023. But the PEA remained the same (£28.25).
37. The Council sent the reviewed FA outcome to Mrs Y and explained the changes were due to an uplift letter from DWP. The Council confirmed it had amended Mrs X’s residential care charges accordingly. The Council also notified the care home of the reviewed FA outcome and asked it to refund Mrs X the difference of the client contribution she made during the permanent care period.
38. In its responses to Mrs Y’s complaint, the Council:
1. apologised for the distress caused to Mrs Y by its unclear procedure for arranging and securing residential care homes for service users. The Council said it would ensure the information it provides to the families of service users about securing a care home would be easy to understand.
2. said Mrs X’s DP account was set up for her domiciliary care and home-based respite and so it could not be used for her residential care home respite. The Council said it had clearly explained to Mrs Y that Mrs X’s DP funds could not be used to pay her assessed client contribution for residential care which included the initial 2 weeks respite at the care home. It apologised for any confusion caused on the matter.
3. said it correctly completed FAs for Mrs X based on information it received from DWP. As regards Mrs X’s state pension payment, the Council advised Mrs Y to ask DWP if it could make the payments on a weekly basis instead of the 13 payments it made to Mrs X annually.
4. said Mrs X’s PEA was correct and calculated in line with the statutory provisions. It confirmed Mrs X’s care home issued her with correct invoices following its initial and the reviewed FAs. But the Council said it noticed the invoices included other personal items and services such as hairdressing which should be paid from Mrs X’s PEA. The Council confirmed the care home said it could invoice Mrs X’s care costs and personal costs separately to prevent any confusion if Mrs Y would prefer that.
5. advised Mrs Y to discuss Mrs X’s invoice schedule with her care home to better manage her money and ensure she had sufficient weekly PEA.
6. Mrs X’s DP client contribution of £1,036.14 remained outstanding and if she could not pay in full, an instalment payment plan could be agreed.
39. Mrs Y remained dissatisfied with the Council’s responses. She made a complaint to the Ombudsman.
40. In response to our enquiries, the Council:

• reiterated its responses to Mrs Y’s complaint.
• explained Mrs X’s income was not received weekly, but her client contribution and PEA were calculated on a weekly basis. Therefore, Mrs X’s available money will usually fluctuate.
• maintained Mrs Y did not indicate the use of the word “respite” during the initial 2 weeks Mrs X stayed at the care home caused her confusion.
• said due to Mrs Y’s ongoing complaint and the Ombudsman’s investigation, it had suspended its recovery process for Mrs X’s £1,036.14 outstanding client contribution against her DP account which will be reviewed after our investigation is completed.

41. The Council provided additional information and evidence after an initial draft decision was issued. This included the Council’s FA factsheet for residential care and the care home’s Welcome Pack which were sent to Mrs Y in April 2023. This correspondence contained information about PEAs and how the care home bills PEA directly. The Council also confirmed Mrs X care home only billed her for personal expense on the one occasion. The Council provided the Ombudsman with the invoice it received from Mrs X’s care home when it charged her for personal expenses when an escort accompanied her to a hospital appointment.

Analysis

Arranging and Securing Residential Care Home

42. The Council provided Mrs Y with a list of some care homes that accepted the Council’s care rates and advised her to view the care homes. Mrs Y visited all the care homes on the list but none of the care homes had vacancies and all required third-party contribution. Mrs Y said she had to widen her search before she was able to reserve a space for Mrs X at a care home which was not on the list the Council gave her. Mrs Y said the Council’s failure to identify vacant care homes with no third-party contribution requirement caused her the time and trouble visiting all the care homes and the Council could have found a suitable care home for Mrs X sooner.
43. Families and/or representatives of service users should be involved in selecting their placements and it is usual for them to visit placements to see if they like it. So, there was no fault by the Council when it asked Mrs Y to visit the list of care homes it gave her. At the time the Council issued Mrs Y with the list of the care homes, she had not officially requested that Mrs X required permanent residential care. Therefore, I find the Council was not under any obligation at the time to have formally asked its brokerage team to identify and confirm care homes with vacancies which required no third-party contribution. This was not fault.
44. Once Mrs Y reserved a space for Mrs X at the residential care home, the Council contacted the home to check its availability. It also assessed if it was suitable to meet Mrs X’s care and support needs. The Council ensured the care home completed an assessment for Mrs X before her transition, secured an urgent placement for an initial 2 weeks and then completed an MCA assessment for Mrs X for a permanent placement at the care home. These actions are welcome and do not amount to faults.

Chargeable initial 2-week trial respite period at the residential care home

45. I find the use of the word ‘respite’ by the Council for the initial 2 weeks Mrs X stayed at the care home was confusing. The agreed plan between Mrs Y and the Council was for Mrs X to initially try the care home to see whether she would settle in before a permanent stay was agreed. The use of the word “respite” for the trial period caused confusion to Mrs Y and on balance the Council could have avoided complaints about this period by not referring to them as “respite”.
46. As the first two weeks were not “respite” there is no fault in the Council’s assessment of charge. It followed its policy and charged Mrs X accordingly.

Mrs X’s FAs and Lack of minimum PEA of £34 per week for Mrs X

47. When Mrs Y disputed the initial FAs the Council completed for Mrs X in April 2023, it conducted a review of the FAs in August 2023. This was based on further information about Mrs X’s finances which Mrs Y submitted to the Council. The reviewed FA outcomes showed Mrs X’s PEA was reduced to £25.65 for the short‑term care/initial 2 weeks period. There was also a reduction in her client contribution for her permanent care period.
48. While Mrs Y was confused by the FA process after the initial FA the Council completed for Mrs X in April 2023, the Council responded quickly and accordingly when she raised concerns about that FA and after she provided additional information to the Council. This was not fault. The Council also confirmed Mrs X’s contribution and PEAs were correctly calculated following its FA outcome in August 2023. But it said the £25.65 PEA in the breakdown contained in its August 2023 FA outcome letter for Mrs X’s short-term care period was an administrative typographical error. This error caused confusion to Mrs Y.
49. After the FA review in August 2023, the Council made amendments to Mrs X’s weekly contribution for the permanent care period and instructed the care home to pay Mrs X the difference of the reviewed client contribution for the said period. This was not fault.
50. Furthermore, as regards Mrs X’s care home issuing her with invoices which included her care charges plus additional personal expenses, the Council has provided additional evidence. The evidence seen shows the care home sent information about how it charges its residents for personal expenses when Mrs X moved into the care home. Evidence also shows the care home charged Mrs X for personal expenses on only one occasion when an escort accompanied her to a hospital appointment. The invoice seen was charged separately from Mrs X’s care fees and it was sent to the Council. This was not fault.

Conclusion

51. I appreciate Mrs Y said she found how the Council dealt with Mrs X’s care charges confusing and distressing and would like the Council to write off Mrs X’s outstanding DP client contribution of £1,036.14.
52. It is within the Council’s right to charge for the care services provided to service users. Mrs X got the benefit of the care service and Mrs Y was aware of the FA process and the care charges involved. I therefore have no ground to direct the Council to write off the £1,036.14.

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Agreed action

53. 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 Mrs Y to acknowledge the confusion caused to her by the Council’s use of the word ‘respite’ for Mrs X’s initial 2 weeks at the residential care home and for the confusion caused by its error with Mrs X’s PEA figure following its financial assessment as identified above. The apology should be in accordance with our guidance, Making an effective apology
• provide Mrs Y with a clear statement identifying Mrs X’s care contributions and PEAs for the period of the short-term and permanent care periods. This should set out how the Council calculated each period
• offer Mrs Y an affordable repayment plan option for her to pay Mrs X’s outstanding Direct Payment client contribution of £1,036.14 by instalments.

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

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Final decision

55. I find evidence of some faults by the Council leading to injustice. The Council will take action to remedy the injustice caused.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman