Summary: Mr X complains there was fault in the Council’s care assessment of his mother-in-law, Mrs J. He says this caused family disagreement and financial loss because he and his sister-in-law considered they had no option but to start legal action which was later found to be unnecessary. The Council was at fault, but it did not cause the claimed injustice.

The complaint

1. The complainant, Mr X, complains that the Council’s social care assessment of Mrs J was faulty. He says this led to his wife having to pay top up fees for a care home and:
• His wife Mrs X and his sister-in-law Mrs Y paying significant legal fees when taking legal action to gain possession of Mrs J’s home in order to pay the care home top up fees.
• The breakdown of family relationships due to the possession action.
• His wife paying the full care home fees for a period of seven weeks due to the Council incorrectly assessing the date when Mrs J’s savings went under the Council’s financial threshold.

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The Ombudsman’s role and powers

2. 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).

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How I considered this complaint

3. I have discussed the complaint with Mr X and considered the information he provided. I have considered the documents the Council provided. Mr 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

Legislation and guidance

Choice of care homes

4. 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.
5. 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.
6. 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

7. 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.
8. 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.
9. 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.

Charging for permanent residential care

10. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
11. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
12. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

What happened

13. In 2020 Mrs J, who had dementia and physical health conditions, was discharged from hospital to a care home. The NHS paid for the home initially via Continuing Healthcare (CHC).
14. However, in mid 2021 the NHS advised that it would stop the CHC. Mrs J was now a full cost payer, responsible for paying for her own care because she had savings over the upper capital limit.
15. In July 2021 the Council noted Mrs J was self-funding but her capital was about to fall below the upper capital limit. It started carrying out a Care Act Proportionate Assessment of Mrs J’s needs. The Council completed the assessment in early August and considered there was “no assessed need” for Mrs J to remain in the home and it was “most likely that an alternative EMI [Elderly Mentally Infirm] Nursing placement will be sourced.”
16. The Council agreed that when assessing Mrs J’s capital, it would not take account of Mrs J’s home because her son, who was over 60, was living there.
17. Mr X says the family did not want Mrs J to move to a different more cost-effective care home. When the family discussed this in July 2021, they all agreed to sell Mrs J’s home in order to pay top up fees so that she could remain in the same care home. Mrs J’s son, who occupied her home, also agreed to its sale.
18. However, Mr X says some family members changed their minds in early August 2021 about the sale of Mrs J’s home. They considered Mrs J’s needs could be met in a different home that was closer and did not require payment of a top up fee. Mr X says this disagreement led to a split between the family members.
19. Mrs Y had joint Lasting Power of Attorney (LPA) with Mrs J’s son for her mother’s financial affairs. An LPA gives the attorney power to make decisions about money and property. Mrs Y decided as Mrs J’s attorney to seek legal advice and paid a solicitor for this and took legal action to obtain possession of the property in order to sell it.
20. However, before November 2021 the Office of the Public Guardian (OPG) which polices LPA’s started an investigation into Mrs J’s attorneys. Later the Court of Protection dismissed both attorneys, appointing a deputy to act on Mrs J’s behalf.

Top up fees

21. Mrs X paid the top up fees from November 2021 in order to keep Mrs J in the home because she and Mrs Y considered it was in Mrs J’s best interests to remain there. However, after approximately a year Mrs X said she could not continue making the payments.
22. By that point a deputy had been appointed by the Court of Protection. The deputy requested that the Council review its decision that Mrs J could move to a different home, because some members of the family did not want her to move.
23. The Council completed a further assessment in December 2022 and agreed Mrs J should not move. It said it would fully fund Mrs J’s care fees from December 2022, so Mrs X did not need to pay the top up fees. The Council considered there were some faults in the earlier assessment. Following Mr X’s complaints regarding the matter, the Council later agreed that there was the potential that it was the case in August 2021 that Mrs J should remain in the home. The Council agreed to refund the top up fees Mrs X had paid in full from October 2021. It also said that it would remind all social care staff of their duty to ensure that
• assessments include relevant health care professionals views
• documentation reflects the reasons for the decision made about the placement.

Legal action

24. In August 2021 Mrs J’s daughter, Mrs Y, employed a solicitor and started paying legal fees for advice on the options available and in order to take possession of Mrs J’s home. Mrs X shared the responsibility for the legal fees with Mrs Y.
25. The solicitors issued a notice seeking possession to Mrs J’s son in September 2021.
26. However, by November 2021 the OPG was investigating the actions of Mrs Y and Mr J’s son as Mrs J’s attorneys. A deputy was later appointed to act on Mrs J’s behalf. Mrs J’s son was advised to apply to the Court of Protection regarding staying in the house, or paying rent.
27. Mrs J sadly passed away in 2023.
28. Mr X complained that as a result of the faulty assessment, Mrs Y had paid significant legal fees. He said the Council should refund these fees. He also stated that the Council had caused the family disagreement.
29. In its final response the Council said it did not accept that the earlier decision was wrong. It also stated it did not consider it was responsible for Mrs Y’s decision to take legal action, or for the family dispute.

Analysis

30. There was fault by the Council in its care assessment in August 2021 that Mrs J could move to a different home. The Council did not take account of the GP’s views or its own DoLS assessment.
31. The Council has remedied its fault by apologising and refunding the top up fees Mrs X paid. It has also implemented service improvements by reminding staff of their specific duties. I do not consider the Council should take any further action.
32. I do not find the Council’s fault led to the injustice Mr X claims regarding the legal fees paid by Mrs X, and the breakdown in the family relationships. I note Mr X considers the legal fees were unavoidable. However, I am not persuaded the claimed injustice flows directly from the Council’s fault. I do not consider it was reasonable for the family to instruct a solicitor and incur costs so soon. When considering remedies the Ombudsman they did not appear to consider other options.
• It appears that Mrs Y decided to take legal action and paid the legal fees at a very early stage in August 2021. This was a very short time after the Council advised it considered that Mrs J could move.
• The notice of seeking possession was issued in September 2021. This too is a short period of time after the Council’s decision.
• It does not appear that Mrs X and Mrs Y considered other options such as requesting a review of the Council’s decision about her placement, or advising the Council that the top up payments were not sustainable.
• Mr X says that the Council did not respond to Mrs Y’s requests for information. However, I would expect a representative to complain to the Council about the lack of response before pursuing legal action and incurring costs.
• It appears that the OPG did not consider that either Mrs Y or Mrs J’s son were acting in Mrs J’s bests interests as attorneys.
33. Mr X says the Council was responsible for the breakdown in family relationships. However, there may be many reasons for a family dispute, and it appears that one side of the family may have taken legal action against the other for their own reasons.

The date Mrs J’s savings fell below the threshold.

34. The Council carried out a financial assessment regarding Mrs J’s care contributions and from 19 October 2021 it agreed her savings had fallen below the threshold. It funded Mrs J’s care based on costs of £653 per week. As the full fee was £1312 per week Mrs X arranged to pay the top up fee of £659 per week from November 2021.
35. However, Mrs X said that Mrs J’s savings had fallen below the threshold earlier, in September 2021. She said Mrs J’s bank statement showed this. As a result, Mrs X said that she had to pay Mrs J’s full fees herself from September 2021, when the Council’s funding should have started.

Analysis

36. I asked the Council to provide details of its calculation. It advised that Mrs J had savings of over £30,000 in September 2021. This was based on the August bank statement and an ISA account.
37. The Council carried out a diminishing capital calculation based on that information which took account of income and care payments. This led to its date of 19 October 2021. It also advised it could consider this further if Mrs X provides further evidence. There is no apparent fault here.

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Final decision

38. I have completed my investigation and closed the complaint.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman