This fact sheet is aimed mainly at people who are having problems with their own, or a relative's, residential care and may be thinking about complaining to the Ombudsman.
I am unhappy about the way the council has assessed my care needs and organised reisential care for me. Can the Ombudsman help me?
Sometimes, yes. The Ombudsman cannot question the merits of decisions, or professional judgements, where they have been reached properly. But we can consider how the council has reached those decisions and whether it has implemented them properly.
People are free to arrange their own residential care privately with a care provider who should be registered with the regulator – the Care Quality Commission (CQC). This is called self-funded or self-arranged care.
Where a council is responsible for meeting someone’s care and support needs, and a particular type of accommodation is needed to meet their assessed needs, the person must have the right to choose between different providers of that type of accommodation provided:
- the accommodation is suitable for their assessed needs
- it would not cost more than their personal budget for accommodation
- the accommodation is available, and
- the owner of the accommodation is willing to enter into a contract with the council to provide the care at the rate identified in the personal budget on the council’s terms and conditions.
The council must place a person in preferred accommodation if a third party agrees to pay the difference between the actual cost and the amount in the personal budget. This is often referred to as a ‘top-up’.
Before asking someone to pay a ‘top-up’, councils must ensure at least one care home is available that is affordable within a person’s personal budget and should ensure there is more than one such care home.
Councils can decide whether or not to charge for residential accommodation , unless the person’s capital exceeds £23,250.
When a council has decided to charge for residential accommodation it must do a financial assessment and tell the person how much it will charge them. This may be the whole sum if the person has a high income or large assets. Otherwise the charge takes account of a person’s income and savings. It also takes account of the value of their home (unless it is occupied by: the person’s partner; a relative or family member who is 60 or over; their child [if under 18]; or a relative or family member who is incapacitated).
If a council decides someone has given away capital or income to avoid paying for care, it can either treat them as if they still have the assets or charge the person to whom they have given the assets.
The council must offer a deferred payment agreement, which avoids the need to sell a home until the person has died, to anyone meeting three criteria:
- their assessed needs are to be met in a care home
- they have less than £23,250 in assets, excluding the value of their home, and
- the value of their home has not been disregarded.
When the council has a contract with a care home to provide care for someone, it is accountable for the care provided by the care home.
How do I complain?
You should normally complain to the council first. We will not normally consider a social services complaint until the council has had the opportunity to consider and resolve it locally.
When you complain about social services, the council should give you information about what will happen to your complaint and how long this will take.
The council should agree with you a plan for how it will deal with your complaint, including a timescale. You can complain to us is if you’re not happy with the outcome once the council has completed its consideration of your complaint. You should normally complain to us within 12 months of realising the council has done something wrong.
If you consider my complaint what will the Ombudsman look for?
We consider whether there has been fault in the way the council has dealt with a person’s assessment for and admission to residential care. If there is we will then consider what impact this has had on the person, and sometimes on the person’s family. Some faults we might find are that the council:
- delayed unreasonably in carrying out an assessment on whether the person needed residential care
- delayed unreasonably in providing residential care
- arranged residential care that did not meet the person’s assessed needs
- failed to give the person full information about choices of accommodation
- failed to tell the person of the financial charges before entering residential care, or wrongly assessed the person’s financial contribution.
What happens if the Ombudsman finds that the council was at fault?
If there are errors in the assessments, we may ask the council to reassess the person and ensure it puts the correct services in place.
For errors in financial assessments we may ask the council to refund the person it has overcharged.
If the council has caused substantial harm or distress we may recommend a financial remedy for those affected.
We may also ask the council to amend procedures for the benefit of other service users.
Examples of some complaints we have considered
We found the council was at fault as it failed to properly review the ban, which had been in place for three years, and relied on historic evidence provided by the care home. The council agreed to appoint an independent mediator to help reinstate Mr P’s contact with his sister at the care home.
After consulting the records, we found no evidence to support Ms X’s claims. We also found the council made appropriate safeguarding enquiries which did not substantiate the allegations of neglect and poor care.
Other sources of information
The Care Quality Commission, www.cqc.org.uk or call 03000 61 61 61.
See Civil Legal Advice (CLA) at www.gov.uk/civil-legal-advice or call 0345 345 4 345 to check if you can get legal aid
Our fact sheets give some general information about the most common type of complaints we receive but they cannot cover every situation. If you are not sure whether we can look into your complaint, please contact us.