Summary: Ms C complained that the Council does not want to pay more, to enable her daughter to move into the care home she likes. She said that, instead, it has offered a cheaper home that is not suitable. While we found there was some fault with regards to the issues we investigated, there was no fault with the way the Council reached its decision about the care home it offered.

The complaint

1. The complainant, whom I shall call Ms C, complained to us on behalf of her daughter, whom I shal call Ms D. Ms C complained that:
• The Council only partially upheld her complaint that there has not been a social care assessment of her daughter between 2008-17.
• The Council will not pay more, to enable her daughter to move into the care home she likes. Instead, it has offered a cheaper home that is not suitable.
• A Council officer lied to her MP. The officer said in an email to her MP that “correspondence from the Assistant Director had been sent to [Ms D]”. However, this was not true.

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What I have investigated

2. I have investigated if the Council followed relevant legislation and guidance in response to Ms D’s request to move to a specific care home. I also investigated if a Council officer said something that was not correct.

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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 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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. 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

7. I considered the information I received from Ms C and interviewed a Council officer who has been involved in the case. I shared a copy of my draft decision statement with Ms C and the Council and considered any comments I received, before I made my final decision.

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What I found

Relevant legislation and guidance

8. 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. As such, the council must ensure there is at least one accommodation option available and affordable within the person’s personal budget. 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 (‘top-up’).
9. 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.
10. 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. 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

11. Ms D is in her 40s and lives in a care home outside Bradford. However, she told the Council in 2019 that she would like to move back to Bradford. Ms D wants to be in a care home that is close to her parents, so it is easy for them to get there by bus.
12. The Council carried out a care review and offered a placement at care home X. Ms C complained that the care review was inaccurate. When I asked what, if any, injustice this resulted in, Ms C said that, as a result:
• The Council offered a care home to her daughter that was not suitable for her, as it would not be able to meet all her needs.
• The Council refused to fully pay for the care home that her daughter wants to move into, which is able to meet all her needs.
13. When I initially asked Ms C to explain why she felt that care home X would not be able to meet her daughter’s needs, Ms C said:
• The home is a large home. However, her daughter has always stayed in small settings. Ms C did not say her daughter was incapable of staying at a large setting. However, she indicated her daughter would prefer a smaller setting because she was used to that. She believed a large unit could affect her daughter’s wellbeing and mental health.
• The area around the home was commercialised, and not particularly suitable (for someone in an electric wheelchair).
14. A care review from 2020 said that:
• Ms D wants to move to care home Z, which costs £1,500 a week and is only a 5-minute drive from her parents’ home. However, that care home does not have a vacancy currently. As such, she first wants to move into care home Y, which also costs £1,500 and is 15 minutes away from her parents, where she will wait until a vacancy becomes available in care home Z.
• She visited care home A but felt the physical space for mobilising in her electric wheelchair was limited. She felt the only available room was too small for her to mobilise around in her chair. The care home costs around £1,200 a week and was 20 minutes by car (her parents drive). As such, her parents felt it would be a struggle to get there by bus, once they are no longer able to drive.
• Care Home B has a vacancy and costs around £1,100 a week. However, it is also some distance by bus and costly by taxi for her parents (a 20+ minute drive).
• They also looked at, and visited, care home X. However, Ms D did not like the home, as it would still be some distance from her parents’ home. The home costs £760 per week and is a 14-minute car journey away.
15. The Council says it provided various options to Ms D. However, she is adamant she only wants to move to care home Y and wait there for a vacancy at care home Z. However, the other options offered were not within Ms D’s personal budget and would all require a top up from the family, which the family said it cannot afford.
16. A record from June 2020 said:
• Ms D felt care home A was not suitable, as the only room available was on the first floor and she would struggle with her large electronic wheelchair. She also did not like the distance to her parents’ house.
• Care home B has no vacancies and is far by bus and expensive by taxi.
• Care home Y opens in September 2020. The manager said she can go there and will be first choice to move to care home Z.
17. A record from the Council from July 2020 states that the Council’s view was that care home X can meet Ms D’s needs and there would therefore not be a justification why the Council should pay more. Ms D’s care review from September 2020 said that: care home X Physical Disability residential bed cost around £600, which would include a £50 top up required by the home.
18. The records show the above was explained to Ms D and her mother. The Council has said the manager of the home has since agreed to reduce the fee and accept the Council’s rate. It added that, as a result, there would not be a need to pay a top up anymore if Ms D would move into this home.
19. Ms D’s care review from 2021 said that
• Ms D feels that the next move is crucial as she does not want to move to an 'old people’s’ home'.
• Ms D is not keen on catching a bus as she has not done so independently in the past.
• Ms D stated that care home Z is five minutes from her parents, and they organise a lot of activities.
20. Ms D’s parents said in June 2021 that Ms D visited three homes. Of these, she only liked care home Z. The others were:
• Care home A: Ms D said she did not like this place at all, saying “it reminded her of an institution from a bygone era”. She said that, although the staff and residents seemed pleasant enough, it would be difficult to get around the home in her electric wheelchair.
• Care home X: Ms D said the place seemed pleasant enough with lots of activities going on around the home, and the staff were pleasant enough. However, she did not understand how or why the assumption was made she could use a regular bus in her 30 stone electric wheelchair. The home will not be able to help her with accessing the community which is essential for her wellbeing.
21. The Council told me it identified care home X in March 2020, which is suitable to meet Ms D’s needs. It said the only objections put forward by Ms D and her parents have been around distance of the home to Ms D’s parents and access to the community. Care home X has long term residents of a similar age as Ms D, as it is a home for those aged 18 and above. There are other residents who also use an electric wheelchair. There is a bus stop immediately outside the care home, enough car parking and a wheelchair accessible taxi is available. The Council has already allocated an additional budget to enable a care worker to support Ms D whenever she wants to go into the community or attend appointments.
22. Ms C has since told me that she does not believe that care home X is suitable because:
• The Council has not considered the effect that living in a large care home with around 40 residents over 3 floors will have on her daughter’s mental health. Her daughter has always been in small units and is taking medication for anxiety and depression.
• When her daughter asked about going shopping in Bradford, she was told to use the bus stop across the road. There is no bus stop immediately outside the care home.
• The rooms are not fully en-suite, as they do not have their own bathing facility. They are also not ceiling tracked, which means staff will have to use a mobile hoist and transport her on the hoist to use bath or shower facilities.
• It would be better to be with other people of a similar age.
23. The Council officer told me during the interview that:
• The above issues have been considered. While the care home is large, there are plenty of separate lounges and other areas that are quiet.
• There is support available to accompany Ms D when she wants to go into town.
• There are several care homes in the area that are within Ms D’s personal budget. However, care home X is the only one of those who can meet Ms D’s specific needs.
• The Council understands that, while Ms D prefers another much more expensive care home, care home X is suitable to meet her needs. As such, if Ms D wants to move to a more expensive home, her family will need to pay the difference (a weekly top up).
24. With regards to Ms C’s allegation that a Council officer had lied in correspondence with Ms C's MP, the Council said this was a human error. It explained that Ms C made a formal complaint that it responded to in March 2021. Ms C also contacted her MP in May 2021, and as a result an Assistant Director prepared a draft letter to the family in June. Due to an oversight, this letter was not sent. However, the officer who Ms C believes lied was not aware that the letter had now not been sent, and therefore referred to it in the correspondence.

Analysis

25. Early on in the process, the Council offered Ms D a placement at care home X. Since then, Ms D and her parents have raised some concerns as to how the home would meet Ms D’s needs. At the same time, it has been clear that Ms D and her parents only believe that care home Z is suitable, which is the one they want Ms D to go to eventually.
26. The Council has considered the concerns about care home X but has concluded the home is able to meet Ms D’s needs. The Ombudsman cannot question a decision that the Council has made if it has followed the right steps and considered relevant information. As such, I found there was no fault in the way through which the Council reached this decision (see paragraph 5). As such my view is there is no fault with the way the Council reached the decision that it should not pay more to enable Ms D to go to her preferred home (see paragraph 10).
27. However, I did find there was fault by the Council to initially suggest that the family would have to pay a £50 top up if Ms D would go to care home X. Paragraph 9 says the Council must increase the personal budget if it is unable to offer a suitable home within its personal budget. As this was the case, it should not have mentioned the need for a £50 top up with regards to care home X.
28. The Council has acknowledged it provided incorrect information in an item of correspondence. However, it has explained this was a human error, for which it is sorry.

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Agreed action

29. I recommended that the Council should, within four weeks of my decision, remind its adult social care staff of the circumstances mentioned in paragraph 9 and 27 when the Council should not ask the family to pay a top up.

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Final decision

30. For reasons explained above, I found there was fault by the Council (see paragraph 27 and 28). However, this did not result in an injustice to Ms C or her daughter.
31. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Parts of the complaint that I did not investigate

32. I did not investigate Ms C’s complaint that the Council only partially upheld her complaint that there has not been a social care assessment of her daughter between 2008-17. We cannot investigate late complaints unless we decide there are good reasons (see paragraph 4). The complaint she made is about events that happened before 2018. As such, we cannot investigate those events, or the way the Council investigated her complaint about them.

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Investigator's decision on behalf of the Ombudsman