Summary: the Council failed to follow the care and support statutory guidance when placing Mrs B’s mother in a care home. An apology, agreement for the Council to cover the cost of the top up fee and a reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained the Council:
• misled her about the cost of a home before her mother was placed there;
• failed to explain in advance that she would have to personally fund the extra £37 per week due to the cost of the home; and
• failed to discuss with her the possibility of a cheaper placement or an alternative to residential care.
2. Mrs B says fault by the Council meant she was misled about the financial implications of her mother moving into the care home which has left her personally liable for a fee and her mother with only £24.90 a week to live on.

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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. 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

5. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mrs B and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

What should have happened

7. The Government has issued guidance on the Care Act. This is the Care and Support Statutory Guidance (the guidance). This says local authorities have a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs. In all cases, a local authority has the discretion to choose whether or not to charge under section 14 of the Care Act following a person’s needs assessment. Where it decides to charge, it must follow the Care and Support (Charging and Assessment of Resources) regulations and have regard to the guidance. The detail of how to charge is different depending on whether someone is receiving care in a care home, or their own home, or another setting.
8. When choosing to charge, a local authority must not charge more than the cost that it incurs in meeting the assessed needs of the person.
9. Where a local authority has decided to charge, except where a light touch assessment is permissible, it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. It should explain how the assessment has been carried out, what the charge will be and how often it will be made and, if there is any fluctuation in charges, the reason. The local authority should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice.
10. People in a care home will contribute most of their income, excluding their earnings, towards the cost of their care and support. However, a local authority must leave the person with a specified amount of their own income so that the person has money to spend on personal items such as clothes and other items that are not part of their care. This is known as the personal expenses allowance (PEA).
11. Where the care planning process has determined that a person’s needs are best met in a care home, the local authority must provide for the person’s preferred choice of accommodation, subject to certain conditions. Determining the appropriate type of accommodation should be made with the adult as part of the care and support planning process, therefore this choice only applies between providers of the same type.
12. The local authority must ensure that the person has a genuine choice of accommodation. It must ensure that at least one accommodation option is available and affordable within the person’s personal budget and it should ensure that there is more than one of those options. 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’). However, an additional payment must always be optional and never as a result of commissioning failures leading to a lack of choice.
13. If a person chooses to be placed in a setting that is outside the local authority’s area, the local authority must still arrange for their preferred care. In doing so, the local authority should have regard to the cost of care in that area when setting a person’s personal budget.
14. If no preference has been expressed and no suitable accommodation is available at the amount identified in a personal budget, the local authority 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. Only when a person has chosen a more expensive accommodation can a ‘top-up’ payment be sought.

What happened

15. In January 2021 Mrs B contacted the Council to request a review of her mother’s existing home care support package. The Council initially increased the at home package and then carried out an assessment in March 2021. At that point the Council decided Mrs B’s mother’s needs had changed and she required 24-hour care in a residential setting.
16. Mrs B identified a home for her mother which was outside the Council’s area and closer to Mrs B’s home. The home charged more than the maximum the Council would pay. The Council therefore sent Mrs B a third party agreement to sign for her to agree to pay a £37 per week top-up fee on 29 March. Mrs B’s mother moved into the home on 1 April.
17. The Council sent Mrs B a financial assessment form to complete. Following that the Council wrote to Mrs B to advise it had assessed her mother’s contribution as £148.85 per week from 1 April and £152.20 per week from 19 April.
18. Mrs B raised concerns about the assessment as she had understood there would only be a £37 per week charge. The Council provided Mrs B with a copy of its charging policy document. The Council explained the £37 was a third party top-up which is charged because the care home chosen was more expensive than the Council would pay.
19. Mrs B continued to raise concerns about the additional charge and explained she had intended to pay the £37 out of her mother’s income. The Council explained Mrs B could not do that and that the charge was for Mrs B to pay. Mrs B said she could not afford that and her mother would therefore need to move to another home.
20. The Council has since accepted it did not offer a placement at a home within Mrs B’s mother’s budget. The Council has therefore agreed to cover the top-up amount of £37 per week.

Analysis

21. Mrs B says the Council misled her about the cost of the care home before her mother was placed there. Mrs B says when she spoke to the social worker she was told the only amount her mother would have to contribute towards the cost of the care home was £37 per week. Mrs B says she was not told her mother would have to contribute all but £24.90 of her income to cover the cost of the care home and that she, Mrs B, would be personally liable for the remaining £37.
22. The issue arises here because the Council only covers the cost of a care home up to £643 per week. In this case Mrs B wanted her mother to move into a care home close to her which was outside the Council’s area. Mrs B therefore identified the care home she considered suitable for her mother. That care home costs £680 per week which was more than the Council would pay. As I said in paragraphs 9-15, the Council should have explained to Mrs B the likely costs her mother would face and that because she had chosen a care home that charged more than the Council would pay Mrs B would personally have to pay £37 per week in addition to that. The Council should also have offered Mrs B’s mother a placement that fell within the amount the Council would pay. The Council accepts it failed to do that. The Council also accepts its communications about the amount Mrs B and her mother would have to pay were confused. Failure to discuss the option of a cheaper placement for Mrs B’s mother and to make clear the charges that would apply is fault. I am also concerned that when writing to Mrs B about the top-up fee on 29 March 2021 the Council incorrectly said it had offered a placement within Mrs B’s mother’s personal budget amount and that Mrs B had said she would rather pay a third party top up fee so her mother could move into the chosen home. That was incorrect because no placements within the personal budget amount had been offered by the Council. Including incorrect information in that letter is fault.
23. The Council accepts it was at fault here and has agreed to cover the cost of the top-up payment of £37 per week from the date Mrs B’s mother went into the care home and for as long as she requires it. I welcome that and consider it a satisfactory remedy for this part of the complaint, alongside the apology the Council has offered. I recognise that falls short of what Mrs B would like as she says her mother should only have to pay £37 towards her care as that is all she was told she would have to pay. I cannot make that recommendation. That is because there is no evidence the Council told Mrs B the charge would only be £37 per week. I appreciate Mrs B says the social worker verbally told her this but the Council denies that. In the absence of any telephone recording I therefore cannot take a view on what amount, if any, the Council told Mrs B her mother would have to pay.
24. In any event, although I have concerns about the lack of discussion with Mrs B about alternative, cheaper, care homes before her mother moved in I am satisfied Mrs B knew from her mother’s previous experience of home-care that she would likely have to contribute something towards her care. I am also satisfied when the Council wrote to Mrs B about the top up fee on 29 March 2021 it explained the £643 per week personal budget the Council had set included any assessed contribution that was to be made by the person going into care. That again should have put Mrs B on notice that her mother would be required to make a contribution towards her care. It is also the case that even if Mrs B’s mother had been placed in a cheaper care home she would have had to contribute the same amount towards her care as she is required to pay in the current care home. So, I am satisfied Mrs B’s mother has not suffered a financial detriment as a result of fault by the Council here. The financial detriment is to Mrs B in relation to the top-up fee which the Council has now agreed to cover.
25. In reaching the view that the Council’s agreement to cover the cost of the top-up fee is a satisfactory outcome for the complaint I have considered the point Mrs B has made about the option of her mother remaining at home with a greater support package. Mrs B says if she had known her mother would only be left with £24.90 per week if she entered a care home she would have considered seeking a greater support package for her to remain at home. Having considered the documentary evidence though I am satisfied the assessment in March 2021 concluded Mrs B’s mother required a nursing home placement. That assessment made clear as Mrs B’s mother’s needs had become complex they were too high to be met in the community and a care package was no longer effective. I am therefore satisfied there was no suggestion an enhanced care package at home was appropriate. As I said in the previous paragraph, whichever nursing home Mrs B’s mother entered the financial contribution Mrs B’s mother would have had to pay would have been at the same level. Even if at home care had been assessed as being appropriate Mrs B’s mother would also have had to contribute to the costs of that. I therefore consider that although fault by the Council has caused Mrs B a financial injustice Mrs B’s mother has not suffered any financial detriment.

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Agreed action

26. Within one month of my decision the Council will:
• apologise to Mrs B for failing to properly explain the charging process to her before her mother moved into the care home and not discussing alternative, cheaper care home options with her; and
• confirm in writing to Mrs B that the Council will cover the top up amount of £37 per week from the date Mrs B's mother moved into the care home and for the entire time it is needed.
27. Within two months of my decision the Council should send a reminder to officers dealing with care assessments covering:
• the need to provide the service user or family member with a copy of the Council's charging policy before a move to a care home takes place;
• the need to ensure officers follow the care and support statutory guidance in terms of identifying at least one affordable placement that does not require a top up fee and for officers to discuss with families the implications of choosing a more expensive placement before the move to a care home takes place; and
• the importance of providing clear and simple financial advice to help people understand total care costs. In individual cases the Council should be clear on what it will pay, what the client will pay and if a third party top-up is required and agreed.

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Final decision

28. I have completed my investigation and uphold the complaint.

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Investigator's decision on behalf of the Ombudsman