Summary: Mr X complained about the way a Council-funded care home assessed his mother’s (Mrs X) dependency levels. We have found fault with the Council (as the responsible body) for not ensuring the dependency scores reflected Mrs X’s circumstances. This caused Mr X to pay higher top-up fees and caused avoidable distress. We have recommended the Council apologise and pay a financial remedy.

The complaint

1. Mr X complained the Council-commissioned care home did not properly assess his mother’s (Mrs X’s) care needs and dependency levels. He said that her dependency score remained the same from when she moved into the home until when he asked the social worker about the monthly review scores.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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

4. I considered Mr X’s complaint and spoke to him about it.
5. I also considered information I received from the Council and the care home including Mrs X’s care assessments and dependency reviews.
6. Mr X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Legislation and guidance

Care and support plans

7. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Care plan reviews

8. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Choice of care homes

9. 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.
10. 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.
11. 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.

Top-up payment

12. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top-up fee is the difference between the personal budget and the cost of a home.
13. However, 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; or
• the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themself.
14. In such circumstances, 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.

What happened

Moved into care home

15. Mrs X moved into a care home in September 2023. The Council assessment stated that her previous residence was unable to meet her needs. Following a brief stay in respite care, Mrs X along with her family decided that a care home would be the best option.
16. The care home required a third party top-up that Mr X agreed to pay. The Council said the care home calculated the third party top-amount based on the dependency level of the resident i.e., the greater the dependency/carer time, the higher the top-up fee.
17. At this stage, Mrs X was unable to walk, required two carers for transfers and required assistance for all her basic needs including personal care and feeding.

Hospital admission and care review

18. In October, Mrs X was admitted to hospital with a serious infection. Mrs X was discharged after a week and the Council carried out a comprehensive reassessment of Mrs X’s care and support needs.
19. The review identified that Mrs X required 2 carers to assist her with transfers and personal care. It said Mrs X could feed herself although she struggled with cutlery due to her hands shaking.

Concerns raised about dependency levels.

20. In December, Mr X raised concerns that Mrs X was not receiving the social interaction she needed. In January, the Council arranged a ‘home visit’ to discuss Mrs X’s concerns with her and her sons.
21. Following the visit, the Council agreed to update Mrs X’s action plan to reflect various requests including that she wanted to walk more rather than using a wheelchair. Given Mrs X’s evidential physical improvement, Mr X asked the Council to look at the dependency levels recorded by the care home.
22. The Council said this is usually agreed between the care home and the family and the Council does not really get involved. It asked Mr X to speak to the care home directly. Mr X approached the care home and met with staff in February to discuss Mrs X’s care and specifically her dependency levels.
23. The care home reassessed Mrs X and reduced her dependency level. This led to a reduction in the top-up fees from £203 to £120 per month (£83 per week) starting from January when Mr X first raised the matter.

Information request and complaint

24. Mr X requested information from the care home including this mother’s dependency assessments from September 2023 when Mrs X moved into the care home. Mr X complained in March when the care home did not send the relevant information to him. He also raised concerns about poor staff communication and an allegedly rude email from the care home manager.
25. Mrs X left the care home in March to move into alternative accommodation.
26. Mr X pursued his complaint that the care home did not properly review Mrs X’s dependency each month. He said the score remained unchanged even though her health had improved, and care and support needs had reduced.
27. In response to Mr X’s complaint, the care home informed him that staff had undergone training to improve communication practices. It provided Mr X with the dependency score results for each month. It went on to explain that software automatically scores and calculates the results from the staff inputting the resident’s needs. Therefore, there was no breakdown of the scores.
28. Mr X contacted the Council as he was dissatisfied with the care home’s response. The Council approached the software company and was able to download the detailed scores for the dependency reviews. Upon receiving the breakdowns, Mr X could see that the detailed scores did not change between September and January and did not feel the assessments had been done correctly.

My findings

Care needs and dependency reviews

29. From the evidence I have seen, Mrs X’s health improved significantly between September 2023 and March 2024. The difficulty is determining at what point did Mrs X’s health improve to a level that meant her dependency needs reduced.
30. The Council carried out re-assessments of Mrs X’s care needs in September, November and February. There were some improvements in Mrs X’s health recorded between the September and November reviews, and a marked improvement between November and February.
31. The care home carried out monthly dependency reviews between September and March. These scores (and the broken down criteria scores) remained the same between September and December. This does not correlate with the Council re-assessments. This was fault.
32. Only after the Council and Mr X approached the care home in January, did Mrs X’s dependency scores show a reduction in her level of dependency. This reduced Mrs X’s top-up fees from £203 to £120 per week.
33. When the Council told Mr X that it was not involved with the dependency reviews and associated top-up fees, this was fault. Although the Council can pass on its duties to the care home, the responsibility for any reviews and top-up calculations remained with the Council.
34. While I cannot question the care homes assessment scores of Mrs X’s dependency, I can consider the way these scores were reached. On balance, these scores were not reached correctly as they do not reflect the improvement in Mrs X’s health and reduced dependency when the Council care reviews do.
35. The Care Home reduced the top-up fees from January, I consider this should have happened sooner. I do not know the specific correlation between dependency level scores and top-up fees. I have recommended the Council reimburse Mr X £747 which would equate to November and December’s weekly top-up fees being £120 instead of £203.
36. In addition, to remedy the distress and frustration caused to Mr X and him having to pursue the complaint, I have recommended a payment of £250.

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Recommended action

37. Within 4 weeks of my decision, the Council should:
1. Apologise to Mr X for failing to check that Mrs X’s care needs are reflected in the care home’s dependency scores and top-up fees.
2. Pay Mr X £747 to reflect that Mrs X’s dependency had reduced two months prior to the care home reducing the top-up fees.
3. Pay Mr X £250 for the distress and frustration caused by the fault and for the time and trouble of complaining.
38. The Council should provide us with evidence it has complied with the above actions.

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Draft decision

39. Subject to further comments by Mr X and the Council, I intend to complete my investigation. I found the Council at fault for failing to check that Mrs X’s care needs were reflected in the care home’s dependency scores and top-up fees. This remained the Council’s responsibility even though it had passed the duty on to the care home.

Investigator’s draft decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman