Summary: the Council failed to properly inform Mr B about the financial implications of choosing a more expensive home in 2020 and failed to involve him in an assessment completed in 2021. An apology, payment to Mr B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• failed to properly inform him about the financial implications of choosing a more expensive home when he placed his mother there in 2020;
• failed to involve him in the assessment completed in 2021 despite the fact his mother had dementia; and
• when arranging a new home in 2021, initially offered him only one option and said it would not fund any home that cost more than the home on offer.
2. Mr B says the Council’s actions caused him significant distress and led to upheaval for his mother as she had to move care homes in 2021.

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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 Mr B's comments and documentary evidence;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr 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

What should have happened

7. The care and support statutory guidance (the guidance) says at the time of assessment of care and support needs, the local authority must establish whether the person has the capacity to take part in the assessment. Where a person has substantial difficulty in being fully involved in their care planning or lacks capacity to agree and consent to the care plan, they may be supported by family members or friends.
8. The guidance says 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 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.
9. The guidance says the local authority must assure itself that whilst the person remains responsible for paying for their own care, they have sufficient assets for the arrangements that it puts in place to remain both affordable and sustainable.
10. The guidance is clear that a person’s ability to make an informed choice is an important element of the care and support system. This must extend to where the care and support planning process has determined that a person needs to live in a specific type of accommodation to meet their care and support needs.
11. The guidance says if a person is near the upper capital limit the local authority should be mindful of the need to plan ahead for when assets have been spent down and a person may therefore fall below the upper capital limit.

What happened

12. Mr B’s mother has dementia and was living with Mr B and his wife up until 2020 with a care package.
13. Mr B contacted the Council in June 2020 to advise his mother had deteriorated and he and his wife were struggling to cope. Mr B said his mother therefore needed a care home placement. Mr B told the Council about a care home he had identified. The Council contacted the care home which confirmed it had a placement available for £985 per week. The Council completed an assessment which resulted in an indicative budget of £452.25 per week. Mr B’s mother moved into the care home as a self funder as she had savings above the capital limit.
14. In March 2021 Mr B asked the Council to complete a financial assessment as his mother’s savings were reducing. The Council completed that assessment in June 2021. That resulted in Mr B’s mother becoming eligible for Council funding from 20 June 2021.
15. At the beginning of June 2021 the Council’s social worker told Mr B she would need to complete an assessment. The social worker explained as the home Mr B’s mother was living in was expensive the Council may need to look for a cheaper alternative. Mr B said the social worker in 2020 had said the Council would fund the placement anyway. The social worker told Mr B this was incorrect. Mr B confirmed the family were not in a position to pay the top up. The social worker then spoke to the home which confirmed the cost of the room was £627 plus a £423 top up fee, totalling £1,050 per week.
16. The Council’s social worker completed an assessment by video call on 8 June. Mr B was not invited and did not take part.
17. The Council contacted the care home Mr B’s mother was living in to ask whether it would reduce its fee to enable Mr B’s mother to remain living there. The home told the Council it could not reduce the cost below £985 per week. The Council told Mr B it would have to look at alternative options due to the cost.
18. The Council spoke to various homes and identified a placement at a home which cost £652 which was the Council’s ceiling rate. The Council told Mr B about that home. Mr B said he was not willing to send his mother to the home as his wife had previously worked there and had concerns about the quality of the care provided.
19. The Council spoke to other care homes and identified other placements but none which did not involve a top up fee. Mr B said he would consider Appleton Manor. However, that home told the Council it did not consider it could meet Mr B’s mother’s needs. The Council told Mr B as he had refused the placement on offer although he could choose an alternative placement the Council would only fund any placement at the same price as the one on offer.
20. A duty social worker took over the case in the social worker’s absence. Mr B again raised concerns about the option offered to him and told the social worker he would likely have to do bring his mother home to live with him. The social worker raised concerns about that and made further enquiries with the home which had been offered. Those enquiries revealed the home had not read Mr B’s mother’s assessment. Once the home read the assessment it told the Council it could not meet Mr B’s mother’s needs.
21. The Council’s duty social worker contacted Appleton Manor again which advised it could not meet Mr B’s mother’s needs. The social worker made some enquiries with the existing home to establish the level of Mr B’s mother’s needs in terms of recent falls as that appeared to be putting some homes off. Once the social worker confirmed there had only been two falls in the previous year Appleton Manor agreed to consider Mr B’s mother again. That led to the offer of a placement at Appleton Manor. The Council agreed to fund the entire cost of the placement as it was now the lowest cost placement available. Mr B’s mother moved into that placement.
22. Mr B’s mother has now sadly died.

Analysis

23. Mr B says the Council failed to properly inform him about the financial implications of choosing a more expensive home when he placed his mother there in 2020. I am satisfied at the time of the placement in the care home in 2020 Mr B’s mother had savings above the capital limit. That meant she was responsible for the full cost of the care home. It is also clear the care home chosen by Mr B cost significantly more than the amount the Council would normally pay. I am satisfied the Council knew that in 2020. I am also satisfied the Council would have been able to identify that Mr B’s mother’s savings would likely be below the capital limit for Council funding within 12 months. I would have expected the Council to make Mr B and his mother aware of that and the possible implications if they chose the more expensive home. I would also have expected the Council to discuss with Mr B and his mother potential placements at a lower cost. I have seen no evidence the Council did that and that is fault. That meant Mr B did not have all the information needed when he and his mother chose the care home in 2020.
24. Mr B says if he had known the Council would not cover the cost of the care home once his mother’s savings depleted he would have looked for another option. I consider it is likely Mr B would have done that given when the savings fell below the capital limit in 2021 Mr B’s mother had to move to an alternative, cheaper placement. Clearly the main injustice here was to Mr B’s mother. The Ombudsman cannot now remedy that injustice given Mr B’s mother has sadly died. However, I consider it likely Mr B suffered significant distress in 2021 at facing the prospect of having to move his 90-year-old mother to a new placement when she was happy in the care home she was living in. I also consider Mr B has suffered an injustice as he has had to go to time and trouble in pursuing his complaint.
25. I am also concerned about how the Council carried out the assessment in 2021. The Council knew Mr B held power of attorney for his mother and that his mother suffered from dementia. I would therefore have expected the Council to involve Mr B in the assessment in 2021. The Council accepts that and has apologised. Failure to involve Mr B in the assessment is fault. I consider it likely though Mr B’s injustice is limited to his frustration at not being included as I do not consider it likely involvement by Mr B would have resulted in a different outcome.
26. Mr B is concerned that following that assessment the Council only offered him one option for his mother to move into which was not appropriate for her. Mr B says the Council then told him it would not fund any placement which was more expensive than the home on offer and that if he chose to place his mother in an alternative home he would have to pay a top up.
27. I understand Mr B’s concern about being presented with only one option and then being told the Council would not fund anything more expensive than that option, particularly when the Council later agreed to fund a different home with a higher rate. However, the documentary evidence shows the Council made enquiries with other care homes before identifying one which said it could meet Mr B’s mother’s needs. This was the home which was the cheapest. I understand why Mr B would not have wanted to place his mother in that home given his wife had previous experience of working there and that experience was not positive. However, the Council has a responsibility to protect public finances. At the point at which the care home in question was offered to Mr B it had indicated that it could meet his mother’s needs. It is not fault for the Council to offer the cheapest home that is identified as suitable to meet Mr B’s mother’s needs. Nor is it fault for the Council to advise Mr B that if he chose to place his mother in a more expensive home he would have to fund the difference.
28. I appreciate from Mr B’s point of view the situation would have been confusing at the time given the cheapest home was subsequently assessed to be inappropriate for his mother and Appleton Manor was subsequently identified as a suitable placement and his mother moved in, with the Council funding the additional cost. I understand this may have led Mr B to believe the Council was at fault for offering the original placement in the cheapest home. However, the documentary evidence I have seen satisfies me the reason the Council removed the cheapest home as an option is because it subsequently became clear the home had offered the placement without considering the assessment and whether it could meet Mr B’s mother’s needs. Once the home had done that it confirmed it could not meet Mr B’s mother’s needs. I am satisfied this is the reason the Council looked at Appleton Manor, rather than due to any fault in how the Council had considered the case to that point.
29. The issue with the cheapest care home also coincided with Appleton Manor reconsidering whether it was suitable for Mr B’s mother. The evidence I have seen satisfies me before 12 July 2021 Appleton Manor had advised the Council it could not meet Mr B’s mother’s needs. I see no reason why the Council would have needed to pursue that further with Appleton Manor at that point given another care home had said it could meet Mr B’s mother’s needs for a lower cost. The documentary evidence shows the Council contacted Appleton Manor again once the cheapest care home said it could not meet Mr B’s mother’s needs. It is that second consideration which resulted in the offer of a place. So, while I appreciate from Mr B’s point of view the situation was confusing I am satisfied there was no fault in how the Council dealt with the offer of a place in 2021.
30. So, I have found fault as the Council failed to provide Mr B and his mother with sufficient information to allow them to make an informed choice about a choice of care home in 2020. I have also found the Council at fault for not involving Mr B in the assessment in 2021. As remedy for the resultant frustration, distress and time and trouble Mr B has had to go to in pursuing the complaint I recommended the Council apologise to him and pay him £300. I also recommended the Council send a memo to social workers completing assessments to remind them of the need to ensure families are properly supported to understand the financial implications of decisions, particularly when a service user is likely to require Council funding in the future and have chosen a care home which is more expensive than the Council will fund. I also recommended the Council remind officers of the need to involve family members or those with power of attorney in cases where an assessment is required for somebody with limited capacity. The Council has agreed to my recommendations.

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Agreed action

31. Within one month of my decision the Council should:
• apologise to Mr B and pay him £300; and
• send a memo to officers dealing with adult social care assessments to remind them to discuss with families the financial implications of choosing a more expensive home than the Council will fund when they are self funders and it is likely they will need to apply to the Council for funding in the future; and
• send a memo to officers dealing with adult social care assessments to remind them of the need to ensure family members or those with lasting Power of Attorney are involved in assessments for those service users who lack, or have limited, capacity.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman