Summary: The Council failed to provide relevant information to enable Ms B to make an informed decision about residential care. Ms B incurred an unfair top-up fee before the Council gave the correct information for her to make an informed decision. Ms B was distressed and attempted suicide. The Council will refund the top-up for the period before it gave the correct information, and pay Ms B £750 for her distress, time and trouble.

The complaint

1. The complainant, who I will call Ms B, says the Council failed to properly assess her mother (Mrs C’s) care needs and finances and failed to give advice about paying for Mrs C’s care. The Council then demanded an unaffordable top-up of £300 per week. This was very distressing. The family borrowed money from a friend to pay the top-up and now owe £3600 which they feel the Council should pay. Had the Council given the correct advice, and offered a suitable affordable care home placement, the top-up would not have been necessary. Ms B was so distressed by the situation she attempted suicide.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. I considered:
• Information from Ms B and the Council
• The Care Act 2014 and associated statutory guidance.
5. Ms B 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

6. Mrs C was in a mental health hospital for assessment, she was there as an informal patient and was not detained. Therefore, free aftercare was not applicable. The Council was involved to assess care needs and support hospital discharge.

What should happen

7. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
8. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.
9. Local authorities are required to arrange residential care in a care home for people who need such care and are unable to arrange it themselves. A person with more than £23,250 (the current upper capital limit) is usually assumed to be able to arrange their own care.
10. The Care Act guidance says councils must disregard the value of a person’s main or only home for 12 weeks when they first enter a care home as a permanent resident.
11. The establishment of the universal deferred payment scheme means that people should not be forced to sell their home in their lifetime to pay for their care. By entering into a deferred payment agreement, a council agrees to defer the payment of charges due to it from the adult, for the costs of meeting needs in a care home. A council must offer a deferred payment agreement to those that are eligible.
12. The (Choice of Accommodation) Regulations 2014 sets out what people should expect from a council when it arranges a care home place for them. It says that once a needs assessment has determined what type of accommodation will best suit the person’s needs, the person will have a right to choose the particular provider or location, subject to certain conditions.
13. The council must arrange to accommodate the person in a care home of his or her choice provided:

• The accommodation is suitable for the person’s assessed needs;
• To do so would not cost the local authority more than the amount in the adult’s personal budget for accommodation of that type;
• The accommodation is available; and
• The provider of the accommodation is willing to enter a contract with the local authority to provide the care at the rate identified in the person’s personal budget on the local authority’s terms and conditions.

14. The council must ensure that at least one choice of accommodation is available that is affordable within a person’s personal budget and should ensure there is more than one choice. 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.
15. 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.
• The resident has entered a deferred payment scheme with the council and is willing to pay the top up fee himself.

16. 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 did happen

17. Once the NHS was ready to discharge Mrs C a care co-ordinator completed an assessment of her care and support needs. The care co-ordinator decided Mrs C needed 24-hour residential care; Ms B had already identified a care home. Ms B knew she needed somewhere suitable for dementia, and this was the cheapest available and suitable home she could find.
18. The Council says Ms B had already signed the contract with the home before the Council’s funding panel had taken place.
19. The Council’s assessment says Mrs C would be privately funded once her flat was sold; the family had enough funds to pay for the care placement for the first couple of weeks. The family was asking for a 12-week property disregard and deferred payment. The Council says Mrs C was to be a self-funder as she had a property to sell.
20. Until Mrs C sold her property, she was not a self-funder as she did not have the funds to pay for the care herself. During the time her property was disregarded the Council was responsible to arrange and fund her care.
21. The Council failed to give Mrs C an indicative personal budget until a week after she had already moved into a care home.
22. The Council did not offer an available and affordable care home within budget. The care home Mrs C chose and moved into was above the rate the Council would pay, but she did this not having had the correct information from the Council to make an informed decision.
23. Within two weeks of Mrs C moving to the care home, Ms B rang the Council to raise concerns about a £300 per week top-up as the Council do not pay the care home’s full rate. Ms B was very distressed because the care home said if she did not pay the top-up Mrs C would be evicted, but Ms B could not afford to pay.
24. The Council then offered an affordable placement, but it was in a different borough. Ms B was concerned this would further disorientate Mrs C and she would be unable to visit her. There is no evidence of how the Council assessed this was a suitable placement.
25. The Council then offered a placement within borough, which Ms B visited. Ms B says the care home manager thought a move would not be in Mrs C’s best interests. It is therefore unclear whether this was an available placement, as it seems they may not have accepted Mrs C.
26. During the 12-week property disregard period, Mrs C could top-up any additional residential care payments from her own resources. This is if you choose to enter a care home costing more than your personal budget. The Council’s records show Mrs C had £3000 in savings, and that a friend was willing to pay the top-up; Mrs C would repay them when she sold her house.
27. On 9 August Ms B told the Care Provider she believes they chose the right home for Mrs C and they want her to stay there. Therefore, from this point, Ms B knew Mrs C’s personal budget, that Mrs C could move to a home within budget, and that there was a top-up for this home. Ms B chose a more expensive home and agreed to the top-up at this point. Ms B says moving Mrs C was not an option, but there is no evidence of any clinical decision that it would not be possible to move Mrs C.

Was there fault causing injustice?

28. Because Mrs C did not have funds over £23,250 when her property was excluded, she was not able to self-fund her own care. The Council was responsible to arrange and fund the care, minus any client contribution from Mrs C.
29. The Council did not give Mrs C a personal budget until a week after she moved into the care home. The Council did not offer a suitable, available care home within budget until after Mrs C had already moved into the expensive care home. This meant at the time of looking at care homes she could not make an informed decision. I am not persuaded that she actively chose a more expensive home.
30. Ms B found it very distressing when she found out there was an almost £300 per week top-up the care home expected her to pay, otherwise they would evict Mrs C. Ms B could not afford it and attempted suicide. Although Ms B signed the contract which said there was a £293 top-up, I am satisfied she did not understand what this meant as had not received the relevant information from the Council. Making decisions about a loved one’s long-term care is very stressful, and the Council’s actions added greatly to Ms B’s stress. Ms B received communication from various departments, much of which was not joined up and was confusing.
31. The Council did eventually give Mrs C a personal budget and offered alternative placements. Ms B chose to borrow money from a friend to pay the top-up as she chose to stay at the more expensive home. I appreciate she did this with the background that she thought a further move would be distressing, and that had she had the right information at the outset she may have chosen never to place her mother there. But I am satisfied from 9 August Ms B made the decision she wanted that care home, and the top-up would be paid by Mrs C when she sold her home.

Agreed action

32. To recognise the impact by its actions, and prevent future fault, the Council will:
1. Pay Mrs C the amount of the top-up between 22 July and 9 August.
2. Pay Ms B £750 to recognise her distress, time and trouble.
3. Remind staff of the importance of promptly giving an indicative personal budget, and information to assist people in finding suitable, available social care accommodation. Remind staff that someone is not a self-funder unless they have over the current financial threshold available to fund their care, this is not the case if they have a property to sell and no other financial assets.
33. The Council should complete the above actions within one month of the Ombudsman’s final decision and evidence its compliance to the Ombudsman.

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Final decision

34. I have completed my investigation on the basis the agreed action is sufficient to remedy the injustice in this case.

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Investigator's decision on behalf of the Ombudsman