Summary: Mrs X complained about the way the Council responded to a request for respite care for her mother (Mrs Y), its failure to provide proper advice about long term care and financing care and the way it handled her complaint about these issues. The Ombudsman finds the Council did not respond or advise properly and it significantly delayed dealing with Mrs X’s complaint. The Council has agreed to pay Mrs X £300 to acknowledge the impact of its failures on her and pay a further week’s top-up for Mrs Y’s respite care. Mrs Y’s house has now been sold so outstanding top-ups can be paid by Mrs Y.

The complaint

1. Mrs X complained on behalf of herself and her mother, Mrs Y, about the way the Council handled issues relating to Mrs Y’s move into residential care. She said:
• when her mother suddenly needed respite care the Council failed to ensure her mother's needs were met before she went into a care home and failed to provide correct information and advice about potential care homes and funding;
• the Council failed to advise her properly about longer term placements and financing; and
• delayed dealing with her subsequent complaint about these issues and failed to acknowledge her emails during the complaints process.
2. Mrs X said as a result of the Council’s fault:
• Mrs Y was put at risk before her move to a care home; and
• Mrs X was caused worry and distress, and spent unnecessary extra time and trouble arranging her mother's care.

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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. If we are satisfied with a council’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

5. I have considered information from:
• Mrs X’s complaint and from a telephone conversation with her; and
• the Council’s response to Mrs X through its complaints procedure and its response to my enquiries.
6. I have also considered:
• the Care Act 2014;
• the Care and Support Statutory Guidance 2014 (“the Guidance”); and
• the Care and Support (Charging and Assessment of Resources) Regulations 2014 (“the Regulations”)
7. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I have taken account of their comments before making this final decision.

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Legal and administrative background

8. Where a council arranges care and support to meet a person's needs, it may charge the adult for the cost of the care. The Guidance and Regulations state that people who have over the upper capital limit (£23,250) are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
9. Councils must assess the means of someone who has less than the upper capital limit, to decide how much they can contribute towards the cost of care in their own home or in a residential or nursing home. A council must tell the person what their assessed contribution is.
10. When assessing how much someone should pay for their care councils must disregard the value of a person’s home for the first 12 weeks of their permanent residential care. This is called the 12 weeks property disregard. After that, if the person would have to meet the full costs of their care home fees, but cannot because their capital is tied up in their property, they may apply for a deferred payment agreement with the council. The council will place a charge on their property to recover the costs of their care when the property is sold.
11. A council’s care and support planning process will identify how best to meet someone’s care needs. As part of that, the council must provide the person with a personal budget. The personal budget is the cost to the council of meeting the person’s needs which the Council chooses or is required to meet. 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. 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.
12. Someone in residential care cannot normally pay their own top-up. But the Guidance says they can if:
• they are subject to a 12 weeks property disregard; or
• they have a deferred payment agreement with the Council; or
• they are receiving care provided under Section 117 of the Mental Health Act.
13. The Guidance says in principle people should be able to defer their full care costs, including any top-ups, through a deferred payment arrangement. But, because councils have to ensure a deferred payment agreement is sustainable, they have discretion over the amount people can top-up. Councils should consider any request for top-ups to be included in a deferred payment arrangement but have discretion whether or not to agree to a top-up being included.
14. The Care Act places a duty on councils to establish and maintain a service for providing people in their areas with information and advice relating to care and support for adults and support for carers. The Guidance says all reasonable efforts should be taken to ensure that information and provided meets individuals’ requirements, is comprehensive and is given at an early stage. It says councils must seek to ensure that all relevant information is available to people for them to make the best informed decision in their particular circumstances.

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What I found

15. Mrs Y used to live at home on her own. She has dementia and was becoming frail. The Council arranged a care package for her. Carers visited her at home three times a day to provide support with her personal care, preparing and eating food and household tasks. A nurse visited every day to ensure she took her medication.
16. Mrs Y’s children did not live near enough to provide day to day support. However Mrs X visited Mrs Y every week.

Events in September 2017

17. In September 2017 Mrs X went on holiday. She had arranged for an NHS service, the Rapid Response Dementia Team (RRDT), to be involved in supporting Mrs Y while she was away. The RRDT delivers rapid assessment and intensive support at home to people with dementia in times of crisis.
18. On Friday 8 September a member of the RRDT rang the Council’s Care Line service late in the afternoon. Care Line is the Council’s out of hours emergency social work service, operating outside office hours during the week and 24 hours a day at weekends. Its role is to make people safe until the next working day. The Council’s website says daytime workers may need to become involved to follow up on a problem that has been dealt with by Care Line at night or over a weekend. It says information will be passed to them to let them know what has happened.
19. Care Line’s records for 8 September and the early hours of 9 September show the RRDT rang and said Mrs Y was not safe to be left on her own. The RRDT requested respite care. A relative also rang and requested respite care for Mrs Y. The relative said Mrs X’s sister would stay with Mrs Y that night.
20. Care Line alerted Mrs Y’s social worker of the respite request. But the social worker was on leave and no-one picked up the request.
21. Mrs X confirms her sister went home on Sunday 10 September so after then
    Mrs X had no-one with her outside the daily carers’ visits and the involvement of RRDT. She says the family was still expecting the Council to respond to the request for respite care.
22. The RRDT rang the Council on Tuesday 12 September, again asking for urgent respite care. The Council’s duty officer advised Mrs Y’s Community Psychiatric Nurse (CPN) could arrange it. Later the same day a manager told Care Line
    Mrs Y’s case was open to a Council social worker so the Council needed to support Mrs Y, not the mental health team. The Council has already apologised to Mrs X for its officer wrongly redirecting the family and for any delay and distress that may have caused.
23. On 12 September Mrs X was still on holiday. From there, as she had heard nothing from the Council, she arranged two weeks respite at the only local care home she knew about (the Home). She then spoke to the Council’s duty officer about this.
24. The records show the duty officer confirmed the Home’s fees with Mrs X. They show the officer also explained the rate the Council would pay and that Mrs X, as a third party, would have to pay the remainder, £225.78 a week, as a top-up.
    The same day the duty officer posted a form to Mrs X to confirm this arrangement. The form set out Mrs Y agreed to 2 weeks short term residential care. It said Mrs Y was due to pay £134.45 a week from her own income and a third party top-up would be needed of £225.78 a week. Both the letter and the Council’s call record say the Council enclosed a leaflet about third party contributions to care charges. Mrs X says no leaflet came with the letter.
25. The Council’s leaflet explains a third party top-up as follows:

“A customer chooses a care home where the costs are higher than the costs Derby City Council would usually pay and there are homes available at the Council’s usual or standard costs which would meet the needs of the customer. In these circumstances, the additional costs known as a third party contribution or top up must be met by a spouse who is not in residential care, a relative, friend or sometimes a charity.”

26. The leaflet also set out the exceptions where someone can pay their own top-up as:

“1. If you own a property and the value of your property is not taken into account for the first 12 weeks of your permanent care, you can pay your own top up for those 12 weeks if you have sufficient funds other than any income and capital which is taken into account in your financial assessment. For example, you can pay this from the part of your capital which is not taken into account up to £14,250.00.

2. If you own a property and enter into a Deferred Payment agreement.

3. If you are receiving care provided under Section 117 of the Mental Health Act.”

27. The Council’s records do not show any investigation into or discussion about available, alternative care homes. The Council has already accepted it did not provide details of a respite option without top-up and has provided a financial remedy for this (see paragraph 47 below).
28. Mrs Y’s family moved her to the Home on 13 September. The Council’s records note Mrs X left a message to confirm the move and asked for an officer to call her back but there is no note of an attempt to call her back.
29. On 19 September Mrs X called Care Line after 5pm. The Council’s record says she was asking for an extension to Mrs Y’s respite to let a change in medication take effect. It says Mrs Y had a property and Mrs X thought she would probably need a deferred payment agreement. After Mrs X’s call the officer who took the call emailed two social worker managers asking them to allocate an interim worker urgently to discuss the extension of respite and Mrs Y’s long term care needs while her allocated social worker was on leave.
30. Mrs X called the Council again on 21 September. The Council’s records note
    Mrs X said the last officer she spoke to had said she would make an appointment for Mrs X to see someone. There was no record of an appointment being arranged so the adviser Mrs X spoke to made an appointment for her in four days time at one of the Council’s local offices.
31. Later on 21 September the adviser Mrs X spoke to on 19 September asked for someone from the social work team to contact Mrs X. On 22 September the same officer sent another email saying she had asked for urgent allocation of an interim worker and could this be looked into. She cancelled the appointment made as she thought it was inappropriate for Mrs X’s request. The adviser did not tell Mrs X the appointment was cancelled and has apologised for this already through the Council’s complaints procedure.
32. Mrs X went to the Council’s offices on 25 September. She found the appointment was cancelled and the Council arranged for her to see someone else. The Council’s records show:
• Mrs X explained Mrs Y needed two more weeks respite.
• Mrs X considered Mrs Y would not be able to go back home.
• Mrs X said Mrs Y owned her own home and the officer noted she would “forward all the financial information to read through”.
• The Council officer gave Mrs X another form to confirm finances up to
  10 October. The form set out Mrs Y agreed to another 2 weeks short term residential care. Again, Mrs Y was due to pay £134.45 a week from her own income and a third party top-up would be needed of £225.78 a week. The officer emailed the social worker manager with the above information and recorded Mrs Y’s social worker needed to follow this up or the case needed urgent reallocation.
33. On 27 September Mrs X rang the Council again and spoke to a social work manager. Mrs X wanted advice about assessment for long term residential care and the financial implications, for example top-ups. Mrs X said the family was paying a high top-up but understood from a document they had that Mrs Y could pay it. The manager advised top-ups were for third parties but if long term care was agreed the top-up could be deferred ‘as per the 12 weeks disregard’. The manager said she would advise Mrs Y’s social worker on her return from leave.
34. Mrs X followed up this conversation with an email to the same officer the next day. The case records do not record this email. The Council has told Mrs X the officer has no record of receiving the email. However Mrs X has sent me a copy of the email. It said she understood Mrs Y could pay the top-up herself during the 12 weeks disregard but asked for confirmation of that. She also asked when the Council would assess Mrs Y to see if she needed temporary or permanent residential care. She asked how Mrs Y’s contributions would be determined if she was only in temporary care. She asked for a response by the next day as she had arrangements to make. In its complaints procedure the Council apologised for not responding.

October 2017

35. Mrs Y’s social worker came back from leave at the beginning of October. She met Mrs X and Mrs Y on 4 October. The Council’s records say the following issues were covered:
• Mrs X wanted clarification about the top-up because information she had was misleading. The social worker said she would get confirmation from a colleague.
• Mrs X said the top-up was unsustainable in the longer term.
• The social worker and nurse mentioned alternatives where the top-up was less expensive, there was no top-up or where the home would negotiate the level of top-up. The record notes the names of four care homes.
• Mrs X said she might consider moving Mrs Y closer to Mrs X’s home.
36. Mrs X says at no point in this meeting was a specific home referred to which would meet Mrs Y’s assessed needs and did not need a top-up.
37. The social worker recorded she later discussed the top-up issue with a colleague. She recorded the colleague advised if someone takes on a deferred payment scheme they can pay their own top-up for the first 12 weeks and then the cost can be deferred.
38. On 5 October the social worker rang Mrs X following the queries raised the day before. The Council’s record does not say what information the social worker provided but says, “Based on the information provided Mrs X feels that Mrs Y should remain at the Home for the time being.” The record shows Mrs Y’s social worker spoke to Mrs X again on 10 October and covered the following issues:
• The Home had told Mrs X it could not negotiate on its top-up fee. But it said once Mrs Y had lived there for two years and her own funds reached the capital threshold it would let her stay or look to move her to its sister home.
• The family had looked at 10 or 11 other homes.
• The social worker and Mrs X agreed to do the financial assessment for Mrs Y later in the month.
39. On 10 October the Council contracted with the Home to provide a long term placement there for Mrs Y from 11 October onwards.
40. On 20 October Mrs Y’s social worker carried out a financial assessment of
    Mrs Y’s means to contribute to her residential care. The same day Mrs X signed the financial assessment form on behalf of Mrs Y. The form included the following information:
• Mrs Y had been in long term care since 11 October 2017;
• Mrs Y wanted to enter a deferred payment agreement based on her property;
• A top-up applied where costs were higher than the Council would normally pay and there were alternative homes available which could meet Mrs Y’s needs at the Council’s rate;
• Mrs X agreed to pay a weekly third party top-up;
• Mrs X had received the third party information leaflet.
41. Mrs X says, although she signed to say she would pay the top-up, she knew
    Mrs Y could pay it. When she signed the form Mrs X had visited 15 other care homes. These included the homes the Council says were mentioned in the meeting on 4 October. Mrs X says she did not consider any of the homes were suitable for Mrs Y. She considered the only one that specifically said no top-ups would be needed was particularly unsuitable.

Late October 2017 to early January 2018

42. The Council wrote to Mrs X on 3 January 2018 with the outcome of the financial assessment carried out on 20 October 2017. The Council’s letter explained the first four weeks at the Home were respite care. From 11 October 2017 the Council treated Mrs Y as a permanent resident there. It said her property was disregarded for the first 12 weeks of her permanent care (from 11 October 2017) but from 3 January 2018 it had been taken into account. It explained:
• Mrs Y’s assessed contribution;
• The difference between the Council’s rate and the assessed contribution was to be deferred under a deferred payment agreement to start on
  3 January 2018;
• The rest of the weekly fees were to be paid through a third party top-up which was currently on hold (this was because Mrs X was disputing who should pay it).
43. The letter came with a deferred payment agreement enclosed for Mrs X to sign, effective the same date as the letter.
44. Mrs Y was admitted to hospital two days later, on 5 January 2018. She did not return to the Home but, because her future needs were unclear, Mrs X kept
    Mrs Y’s room open to her until the end of February 2018. Mrs Y now lives in residential care elsewhere.

Complaints procedure

45. Mrs X complained to the Council on 1 November 2017. She said the Council had failed to provide her mother with appropriate care, advice and information. She said as the Council had been unable to find a suitable placement that met Mrs Y’s needs at its own rate it could not request a top-up payment.
46. The Council responded on 19 December 2017. It accepted:
• When respite was first requested on 8 September 2017 the Council failed to send an alert to the duty team as well as the allocated social worker who was on leave;
• On 12 September 2017 it misdirected the RRDT to the community psychiatric nurse rather than the Council;
• It should have told her about the cancelled appointment on
  25 September 2017;
• Once respite was agreed as needed, the duty worker should have discussed the financial implications and options with the family, including a respite option that did not involve a top-up.
47. The Council said Mrs Y’s social worker did discuss options without a top-up at the meeting on 4 October 2017. But because of the lack of advice up until then the Council agreed to pay the third party costs itself for the period 13 September to
    4 October 2017. The Council has now done this.
48. The Council said it felt Mrs Y had no unmet needs while waiting for respite care.
49. Mrs X responded on 9 January 2018. She said she still felt Mrs Y and the family had been let down by the Council and were justified asking the Council to pay the top-up payments at the Home for the remainder of Mrs Y’s life in care. Mrs X had no response from the Council so followed up her email by telephone in April and a further email in June 2018. However the Council did not respond until Mrs X complained to the Ombudsman in July 2018. After that the Council investigated the complaint at Stage 2 of its complaints procedure.
50. In its Stage 2 response the Council apologised unreservedly for failing to respond to Mrs X’s contact in January 2018. The Council said it could not agree to Mrs X’s request for the Council to pay the remaining top-ups at the Home. Its reasons were that the Council had provided information about top-up fees and alternative homes which would not have charged a top-up and Mrs X could have moved
    Mrs X to reduce the fees.
51. So far, no-one has been asked to pay the top-up fees for the home. The Council has kept the debt on hold pending the outcome of Mrs X’s complaint.

Injustice caused to Mrs X and Mrs Y

52. Mrs X says Mrs Y was put at risk before her move to a care home because of the Council’s delays responding to the requests for respite. Mrs X says for three days Mrs Y had no-one with her outside visits by the carers and RRDT at a time when RRDT assessed she was not safe to be left on her own.
53. Mrs X says she was caused worry and distress, and spent unnecessary extra time and trouble arranging her mother's care because of the Council’s failures to deal with her requests properly.

Current situation

54. Since issuing the draft decision Mrs Y’s house has been sold. Mrs Y now has the available capital to fund her care herself. The deferred payment agreement has ended and the deferred charges have been repaid. The Council is now arranging with her family how Mrs Y will pay the outstanding top-ups.

Findings

Before Mrs Y went into respite care

55. Before September 2017 Mrs Y’s needs were being met at home through a home care support package. But when the RRDT contacted the Council on
    8 September 2017 it was because the Team considered that package was not enough and Mrs Y could no longer be left on her own at home. Mrs Y was then left on her own for several periods, including overnight, before she went into respite care.
56. The Council was at fault for not recording accurately what arrangements were in place to keep Mrs Y safe and for not following up the request for urgent respite made on a Friday evening on the next working day, a Monday. Mrs Y did not come to harm in the days immediately before she went into respite care. But
    Mrs X was caused avoidable distress because of the possibility of harm and put to time and trouble arranging the respite herself when the Council did not respond to the request as it should have done.

Advice about respite and long term care

57. Overall the Council’s approach to arranging and funding Mrs Y’s respite and long term care lacked the clarity Mrs X was entitled to expect. The Council had a duty to seek to ensure Mrs X had the information she needed to make informed decisions about her mother’s respite and long term care. The Council failed to provide relevant information about these issues when it should have done and that is fault.
58. The Council has accepted it was at fault when it did not provide Mrs X with full advice about respite care options, including those where no top-up was needed. The Council has remedied this for the period it considers relevant by paying the third party top-up itself for 13 September to 4 October 2017. It has also raised this as a learning issue with the officer concerned. These actions go a considerable way towards remedying this fault. However, Mrs Y was only at the Home for one more week before her temporary stay was changed to permanent. It is unrealistic to have expected Mrs X to move Mrs Y for one week before long term financing could start. The Council should also pay the top-up for Mrs Y’s fourth week of respite, 5 to 10 October 2017.
59. Once the Council accepted Mrs Y as a long term resident the financing issues changed. The Council should have explained fully who could pay top-ups and what a deferred payment agreement could cover but it did not. The Council failed to appoint an interim worker to give advice while Mrs Y’s social worker was on leave. When the social worker returned these issues were still not explained properly.
60. Mrs X wanted Mrs Y to stay at the Home with Mrs Y paying her own top-ups. She was happy with the Home. She considered it better than the other homes available. However Mrs X could not afford the weekly top-up herself. Mrs Y could not pay her own top-ups while she was in residential care temporarily. But she should have been able to once the Council had agreed a long term placement with the Home. The Guidance is clear people can pay their own top-ups during the 12 weeks property disregard which for Mrs Y was from 11 October to
    3 January 2018. The Council’s information leaflet also says they can. But officers at the Council gave Mrs X a succession of unclear advice on the subject and then failed to consider the issue in the financial assessment. It also failed to consider whether Mrs Y’s full care costs should be covered by the deferred payment arrangement effective from 3 January 2018 although officers had previously told Mrs X the ‘top-up’ amount could be deferred.
61. Mrs X considers the Council should pay all the top-ups for the Home as a remedy for failing to advise her properly at the outset. However, had the Council advised Mrs X properly, Mrs Y could have paid her own top-ups from 11 October 2017 to 3 January 2018 and then the deferred payment could have taken into account the full care costs for the Home. I do not consider the Council should make these payments itself.
62. Following the sale of her house, Mrs Y is now able to pay her own care costs. The Council is arranging with her family how Mrs Y will pay the outstanding top-ups.
    Added to the Council paying the fourth week of respite, this will ensure Mrs X has no outstanding debt to the Council.

The complaints procedure

63. The Council delayed seven months in its complaints procedure. It failed to acknowledge Mrs X’s emails in January and June 2018. Although the Council has apologised it should also make a payment to Mrs X to acknowledge the frustration, time and trouble the delay and lack of acknowledgement caused her.

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Agreed actions

64. Within six weeks of a final decision on this complaint, the Council will:
• pay Mrs X £300 to acknowledge the frustration, distress, and time and trouble caused by its failures to:
1. respond properly to the request for urgent respite care for her mother;
2. advise Mrs X clearly about how her mother could pay top-ups herself and how full care costs could be paid through a deferred payment agreement; and
3. handle her complaint properly through its complaints procedure;
• pay the top-up for Mrs Y’s respite care for 5 – 10 October 2017; and
• charge Mrs Y with the outstanding top-up costs for the Home from
  11 October 2017 onwards.

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Final decision

65. I have now completed my investigation because the Council’s actions will remedy the injustice caused to Mrs X by the Council’s fault.

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Investigator's decision on behalf of the Ombudsman