Summary: Miss X complained about the Council’s decision to move her mother to a different care home unless they can pay a top-up fee. We find the Council was at fault. This caused significant distress to Miss X. To address this injustice caused by fault the Council has agreed to several recommendations.

The complaint

1. The complainant, Miss X, complains about the Council’s decision to move her mother to a different care home unless they can pay a top-up fee. She said the Council has not considered the detrimental impact this move will have on her mother.
2. Miss X said this has caused her significant distress.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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

5. I spoke with Miss X about her complaint. I considered all the information provided by Miss X and the Council.
6. Miss X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

7. The Care and Support Statutory Guidance of the Care Act 2014, says:
• The care and support planning process will identify how best to meet a person’s needs. As part of that, a council must provide the person with a personal budget. The budget should be enough to be able to meet the assessed eligible needs.
• A council must ensure that any care home accommodation it offers is suitable to meet a person’s assessed needs and identified outcomes established as part of the care and support planning process.
• In some cases, a person may actively choose a setting that is more expensive than the amount identified for the provision of the accommodation in the personal budget. Where they have chosen a setting that costs more than this, an arrangement will need to be made as to how the difference will be met. This is known as an additional cost or ‘top-up’ payment and is the difference between the amount specified in the personal budget and the actual cost. In such cases, the council must arrange for them to be placed there, provided a third party, or in certain circumstances the person in need of care and support, is willing and able to meet the additional cost.
• A council must ensure that at least one option is available that is affordable within a person’s personal budget and should ensure that there is more than one. If no preference has been expressed and no suitable accommodation is available at the amount identified in a personal budget, the council must arrange care in a more expensive setting and adjust the budget accordingly to ensure that needs are met. In such circumstances, the local authority must not ask for the payment of a ‘top-up’ fee.
• The personal budget must reflect the amount of a more expensive setting where the council has been unable to make arrangements at the anticipated cost.

Capital limits

8. The care and support statutory guidance says the upper capital limit is currently set at £23,250. Below this level, a person can seek means-tested support from the Council. This means the Council will undertake a financial assessment of the person’s assets and will make a charge based on what the person can afford to pay.
9. In the financial assessment capital below the lower capital limit is currently set at £14,250. This is not taken into account in the assessment of what a person can pay in tariff income assessed against their capital. Where a person’s resources are below the lower capital limit of £14,250 they will not need to contribute to the cost of their care and support from their capital.

Summary of key events

10. Miss X’s mother, Ms Y, was in a nursing home as a self-funder. She is 89 years old and has dementia. Miss X’s sister, Miss Z contacted the Council in February 2023 as she was advised to contact it when Ms Y’s savings got to £30,000. This was because there was a three month wait for a financial assessment. The Council agreed to send a financial pack.
11. In March 2023, the notes stated Ms Y’s capital would fall below the £23,250 threshold on 31 July 2023.
12. The Council spoke with Miss Z the following month. It told her it pays £502.46 for residential care. Miss Z was advised to speak with the manager of the care home to see if she would need to pay a top-up fee.
13. In June 2023 Miss Z emailed the Council. She said:
• Ms Y’s money had run out and she had still not heard from a social worker;
• she had been told she would have to pay a top-up fee but could not afford this;
• they were told they would have to move Ms Y to a cheaper home but said they have already done this once;
• Ms Y is very shy and moving her into a care home was very distressing for her and had a dramatic effect on her dementia. She said Ms Y became more withdrawn; and
• Ms Y has made remarkable improvements at the current nursing home and moving her would be devastating and detrimental to her overall wellbeing.
14. The social worker visited Ms Y in July 2023. It was noted that:
• Ms Y said she felt comfortable. She was no longer as shy and reserved as she once was. It was noted she was also happier;
• the Council would fund the most cost effective option and anything above this would require a top-up fee; and
• the current placement cost £780 per week.
15. A needs assessment was completed in the same month. It said:
• Ms Y was self-funding but as her savings had now fallen below the threshold, an assessment was required for support with funding care;
• Ms Y said she felt happy and safe in the current placement;
• Ms Y would like to remain in a residential placement;
• the family were made aware of the potential for a top-up fee; and
• the recommendation was for Ms Y to remain in a 24-hour residential care setting.
16. The social worker sent Miss Z a list of three placements that said they could meet Ms Y’s needs. The most cost-effective option was £575 per week with no top-up fee. The social worker told Miss Z there would be a top-up fee of £205 per week for Ms Y to remain at the current home.
17. Miss X contacted the Council in August 2023. She said:
• Ms Y is an extremely nervous person and in her previous accommodation she refused to go into the communal area or mix with other residents;
• Ms Y has dementia, cannot see very well and is extremely deaf which can make her feel very isolated;
• the current home was recommended by the Council and Ms Y had made significant improvements there;
• the family cannot afford the top-up fee and the nursing home suggested has poor reviews; and
• moving Ms Y now she is finally settled would be cruel and detrimental to her health.
18. The Council said it considered the information Miss X had provided. This was a GP letter stating Ms Y was no longer on depression medication following the review and that she was settled in the current care home. It was noted that:
• the Council’s panel had considered the information and agreed the Council would pay part of the difference in cost of the placement and the contract rate, which would be £102.50 per week;
• the remaining sum of £102.50 would need to be met by a third party; and
• if a third party could not be identified, Ms Y would need to move to the home identified.

Analysis- was there fault by the Council causing injustice?

19. Miss Z contacted the Council in February 2023 to state Ms Y’s savings had got to £30,000. The Council sent her a financial pack. The notes stated Ms Y would fall below the threshold on 31 July 2023. The social worker carried out an assessment on 12 July 2023.
20. There is an unexplainable drift in this case. We consider the starting point to be when someone contacts the Council indicating a change of circumstances and therefore triggers the need for an assessment. But in this case the assessment was not carried out until five months later. This was also approximately three weeks before Ms Y fell below the threshold. Therefore, the delay is fault.
21. Miss Z and Miss X have both made the Council aware of their concerns about moving Ms Y to a different care home. They said it would have a detrimental impact on her. In the Council’s final response in September 2023, it said it considered a GP letter provided that stated Ms Y was no longer on depression medication, and she was settled in the current home. The Council then agreed to fund half of the top-up fee.
22. The Council has a duty to assess Ms Y’s needs and establish whether she is eligible for funding. If required, a top-up fee will be paid by a third party. By the Council agreeing to fund half of the top-up fee it has somewhat agreed with Miss Z and Miss X’s reasons for Ms Y remaining at the current home. But not enough to fund the full amount.
23. It is widely known that moving a vulnerable elderly resident, especially those who have dementia, to another Care Home where everything (staff, surroundings, residents) is unfamiliar, can have a damaging impact on their physical and mental wellbeing. As such, this is a risk that a Council should properly assess and record, when proposing such a move. But I have seen no evidence to suggest the Council has considered this. This is fault.
24. As there is fault in this case, we have to consider the injustice caused to Miss X and Ms Y and provide a remedy. Due to the unexplainable drift in this case, Miss X told us in January 2024, Ms Y’s savings had reached £4000. The family have been caused significant distress by not knowing what would happen once the money ran out. Miss X has been caused further distress by the fault identified in paragraph 23.

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Agreed action

25. To address the injustice caused by fault, within one month of my final decision, the Council has agreed to:
• apologise to Ms Y and Miss X for the fault identified in this statement;
• complete a reassessment with Ms Y and take into account whether the move to a different care home would have a detrimental impact on her;
• if the assessment concludes it would not be suitable for Ms Y to move, the Council should backdate the costs Ms Y had paid on care fees from the 31 July 2023 [when Ms Y’s capital fell below the threshold of £23,250];
• if the assessment concludes it would be suitable for Ms Y to move, the Council should reimburse Ms Y for the costs of the top-up fee that would have been applicable from the 31 July 2023; and
• pay Miss X £250 to acknowledge the distress caused to her by the faults identified in this statement.
26. Within two months the Council should review its guidance to ensure that, when it needs to consider moving a vulnerable resident to a more affordable home, because the resident’s capital is about to fall below the threshold, it carries out an assessment of the risk to the person’s wellbeing. The assessment should decide what impact a move is likely to have on the resident, and therefore whether a move should go ahead. The Council’s view should then be discussed with the resident [and their family].
27. The Council should provide us with evidence it has complied with the above actions.

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Final decision

28. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman