Summary: The Council was at fault for a delay in finalising Mr B’s financial support. Its social care panel took several months to consider his case, and this caused him a financial injustice, because he continued paying the full cost of his own care for longer than he needed to. The Council’s handling of Mr B’s case also likely caused his son a great deal of uncertainty. It has agreed to make separate remedy payments to Mr B’s estate and to his son, and will set out how it intends to improve its service.

The complaint

1. The complainants, whom I refer to as Mr and Mrs C, complain on behalf of Mr C’s late father, whom I refer to as Mr B. Mr B was in a care home from 2021 until he died in early 2024.
2. Mr and Mrs C complain that:
• After Mr C contacted the Council to say Mr B would soon need it to pay for his care, it took seven months to make a funding decision.
• By that time, Mr B’s health had deteriorated significantly, which meant the Council’s decision was based on an out-of-date and inaccurate needs assessment.
• This meant the Council’s funding was not enough to meet his needs, and the family was left with a substantial third-party top-up to prevent him having to move to a different care home.
• Despite having several months’ warning, the Council also allowed Mr B’s savings to deplete to the extent that he had to pay £1,650 for his care which he would not have needed to without the Council’s delay.
3. They say the Council’s errors caused Mr B, and themselves, a financial injustice. Mr C also says he suffered distress from dealing with the Council over a prolonged period.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I considered:
• Information from Mr and Mrs C and the Council.
• The ‘Care and support statutory guidance’, which tells Councils how to meet their duties under the Care Act 2014.
• The Ombudsman’s remedies guidance.
7. Mr C, Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Care and support statutory guidance

Financial support

8. If an assessment identifies that someone has eligible needs, the council will decide how much money the person’s care should cost (their ‘personal budget’).
9. The council must also decide whether to charge the person for their care. If it plans to charge them, it must carry out a financial assessment.
10. If the person’s assets are worth less that £23,250 (the ‘upper capital limit’), they can ask the council to provide means-tested financial support.
11. Having carried out its financial assessment of the person’s assets, the council will charge them what they can afford to pay.
12. If the person wants to choose a care option (such as a care home) which is more expensive than their personal budget, they can do so, provided a third party is willing and able to pay the additional cost (a ‘top-up’).

Ordinary residence

13. When deciding someone’s eligibility for care services, the council must establish whether they meet the ‘ordinary residence’ requirement.
14. When someone moves into permanent accommodation (such as a care home) in a new council area under private arrangements, and is paying for their own care, they usually acquire an ‘ordinary residence’ in this new area.
15. If so, and if their financial circumstances change so they need means-tested support from a council, they can approach the council for the area they live in. This council will be responsible for deciding whether to meet their needs. This is because they will be ‘ordinarily resident’ in the area where their care home is.

Support plan reviews

16. A support plan review will help to identify if someone’s needs have changed and, if they have changed, the review can lead to a reassessment.
17. There are several different routes to reviewing a support plan, including a requested review (where the person or an interested party, such as a family member, asks for one). The Care Act places a duty on councils to consider such requests even if not made by the person themselves.
18. If a council receives such a request, it must judge the merits of conducting a review. In most cases, a review should be performed unless the council is reasonably satisfied that the plan remains sufficient, or the request is frivolous, or is based on inaccurate information.
19. In considering whether to undertake a review the council must involve the person, carer, and – where possible – anyone else the person wants to be involved.

What happened

20. In early 2023, Mr C told the Council that Mr B lived in a care home in the area, having moved in 2021 from a neighbouring area. He said that, although
    Mr B had been paying for his own care, in August 2023 the value of his assets would drop below the upper capital limit. He asked for the Council for financial support.
21. The Council did an assessment of Mr B’s needs, and decided he was eligible for nursing care. His social worker gave Mr C information about how the Council charged for social care and asked him to fill out a financial assessment form. She said Mr B’s support would be decided by the Council’s social care panel.
22. The social worker also filled out a checklist for continuing healthcare (CHC). This is an arrangement for some people with long-term complex health needs, under which their health and social care is paid for entirely by the NHS.
23. At the end of March, the Council told Mr C that the amount it would pay for Mr B’s care was not enough to cover the costs of the care home he was living in. It said Mr B’s family could pay a top-up, or it could find a cheaper care home.
24. Mr C sent the Council the completed financial assessment forms. Meanwhile, the Council asked its brokerage service to identify another potential care home.
25. In mid-May, the Council told Mr C that, as the value of Mr B’s assets was still above the upper capital limit, he had to pay for all his care. It asked Mr C to let it know when this changed.
26. Shortly after, the Council sent Mr B’s CHC checklist to the NHS. It then completed his support plan, which said his personal budget – pending approval by its social care panel – would be £1,445 per week (the full cost of his care home).
27. Mr C told the Council that he was concerned about what would happen when the value of Mr B’s assets dropped below the upper capital limit (which, by his estimate, would be in August). The Council told him it could make no decisions on Mr B’s finances until then.
28. In early June, the Council’s social care panel refused to consider Mr B’s case because there had been no CHC decision from the NHS. Mr B’s social worker contacted the NHS to chase this.
29. In early August, Mr B’s care home told the Council that it could continue to meet Mr B’s needs, but only if the Council met the full costs of the care, or Mr B’s family paid a top-up.
30. The NHS made its CHC decision shortly after. It decided Mr B was not eligible.
31. The Council followed this decision by asking Mr C if he would pay a top-up, or whether it should look for a cheaper care home.

32. Mr C was unhappy with this. He replied, saying:
• The Council should have done another needs assessment of Mr B, given his rapid decline since the last assessment in March.
• Since his fall, Mr B had become wheelchair-bound and incontinent. He could no longer eat or drink independently.
• A change of placement would harm Mr B’s wellbeing.
• Mr B’s “funding … [had] run out”.
33. Mr B’s social worker wrote to Mr C and acknowledged the information he had provided about Mr B’s needs. It did not mention a support plan review or a reassessment.
34. In early September, the Council decided Mr B’s links to a neighbouring council meant he may have been ‘ordinarily resident’ there instead. It referred Mr B’s case to the other council, saying it was responsible for meeting Mr B’s needs. The other council disagreed, and this ended up with the Council’s legal team.
35. Later in the month, Mr B’s care home told the Council that Mr C had stopped paying for Mr B’s care. It said the Council needed to start paying. It also said Mr C had agreed to pay a top-up.
36. In November, the Council’s social care panel agreed to pay £950 per week towards Mr B’s care. It noted that it did not need to pay any more because Mr C had already agreed to pay a top-up.
37. The Council set up the payments to Mr B’s care home and back dated them to
    1 September. It is not clear why it did not back date them to mid-August, when
    Mr C first told it that the value of Mr B’s assets had dropped below the upper capital limit.
38. The Council wrote to Mr C in late November with the outcome of Mr B’s financial assessment. It explained how much he would have to contribute towards the costs of his care. It said that, with Mr B’s contribution (and Mr C’s top-up) in mind, it would pay his care home £657.81 per week.
39. It also noted that, at the point of assessment, the value of Mr B’s assets was £21,624.38.
40. In late December, while seeking information to respond to Mr C’s complaint, the Council mentioned to the care home that it wanted to arrange a review of Mr B’s support plan. However, no further action was taken to arrange a review (and Mr B died shortly afterwards).

My findings

Delays

41. There was a delay to the Council’s social care panel’s decision on Mr B’s support plan and personal budget. The Council wrote the plan in May 2023, but the panel refused to approve it until the NHS had made its CHC decision.
42. This CHC decision was at least partly delayed by the Council taking two months to send Mr B’s checklist to the NHS after completing it. And, after the decision was made, the panel still did not consider Mr B’s case for another four months.
43. The Council says it was considering Mr B’s ordinary residency status in this period – which is true.
44. However, not only does the statutory guidance clearly explain how Mr B’s ordinary residency should have been decided, but the Council had been aware for seven months that he had moved from a neighbouring area. It is written in his case notes.
45. This matter could have been resolved much sooner (such as during the previous financial assessment in May 2023), which would have reduced the delay later on.
46. This was fault by the Council.
47. The Council has already remedied most of Mr B’s injustice from the delay, as it back dated its payments to 1 September 2023.
48. However, Mr C told the Council that Mr B’s assets had dropped below the upper capital limit in mid-August (having been mentioning this for several months). He also said that, between then and the start of September, Mr B spent around £1,650 on his care (which would have roughly been the cost of eight days in his care home).
49. I have seen no good reason why the Council did not back date its funding to when it first found out about the depletion of Mr B’s assets. So, to remedy Mr B’s injustice, it should make a payment to his estate equivalent to what it would have spent on eight days of his care.
50. Mr C also suffered injustice from the delay. Firstly, he went to time and trouble chasing the Council, for which it should make him a symbolic payment.
51. Secondly, the delay to the panel meant Mr B’s proposed personal budget – which was for the full cost of his care home – was written in his support plan for five months, when Council did not ever really intend to pay it.
52. This likely caused Mr C uncertainty, as Mr B’s personal budget said one thing, while the Council was telling Mr C another. This may well have been an influence on his decision to agree a top-up before the panel heard Mr B’s case. It could have been avoided had there been no delay to the panel hearing.
53. The Council’s symbolic payment to Mr C should also reflect this uncertainty.

Mr B’s needs

54. Mr C told the Council in August 2023 that Mr B’s care needs had changed significantly, and he required a reassessment. He explained why.
55. The statutory guidance says the Council should, at that point, have considered Mr C’s request and judged the merits of conducting a review of Mr B’s support plan. The guidance also says the Council should have conducted a review unless it was satisfied that this was not needed.
56. The Council has since, in its complaint responses, retrospectively judged that there was no need for a review. But:
• There was no consideration of this at the time.
• No information was sought from the care home, despite the guidance saying a decision on whether to review a support plan should involve a person’s carer.
• Although Mr B’s social worker acknowledged what Mr C had said, it is unclear why the Council was satisfied, at the time, that Mr B’s existing support plan adequately reflected his needs.
• Although the Council mentioned a review to the care home at the end of December 2023 – four months after Mr C raised his concerns – this was well after all the decision-making had taken place (and was not followed up before Mr B died).
57. This was fault by the Council.
58. As there was no proper consideration of whether Mr B’s support plan needed reviewing in light of the information Mr C provided, it is unclear whether Mr B’s condition had deteriorated to the extent that it was no longer in his best interests to move to a cheaper care home.
59. The eventual panel decision does not shed any light on this, because the panel simply noted that Mr C was paying the top-up and therefore the Council did not need to either move Mr B or increase its payments for his care.
60. This did not cause Mr B any injustice, because he stayed in his existing care home – with Mr C’s support – and his needs were met.
61. However, this situation likely caused Mr C further uncertainty and, again, may have influenced his decision to agree a top-up before the panel hearing.
62. This uncertainty should also be reflected in the Council’s symbolic payment to
    Mr C.

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Agreed actions

63. Within a month, the Council has agreed to:
• Make a payment of £750 to Mr B’s estate, to recognise that he continued self-funding his care for eight days after he no longer needed to.
• Make a symbolic payment of £700 to Mr C to recognise the uncertainty caused by its handling of Mr B’s case.
64. Within two months, the Council has also agreed to provide us with an action plan which sets out how, in future, it will avoid a repeat of the mistakes identified in this decision statement.
65. The Council will provide us with evidence it has done these things.

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Final decision

66. The Council was at fault for its handling of Mr B’s case.

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Investigator's decision on behalf of the Ombudsman