Summary: Mrs Y complained the Council failed to properly assess her mother, Mrs X’s, care needs and finances in August 2022, and failed to then commission adequate care. She says the Council also over charged Mrs X for residential care. The Council failed to follow up on Mrs X’s domiciliary care assessment and follow the proper process to charge a top up on Mrs X’s residential care costs. The Council has offered a suitable payment for Mrs X’s domiciliary care. It should apologise and make a payment to Mrs Y for the uncertainty caused.

The complaint

1. Mrs Y complained the Council failed to properly assess her mother, Mrs X’s, care needs and finances in August 2022, and failed to then commission adequate care. She says the Council also over charged Mrs X for residential care between January 2023 and February 2024. Mrs Y says this has caused her family distress and anxiety. She wants the Council to apologise and refund Mrs X’s care charges.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. If we are satisfied with an organisation’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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What I have and have not investigated

5. I have exercised discretion to investigate back to August 2022. Mrs Y has remained in dialogue with the Council over the charges since this date to try and resolve the dispute. I consider it reasonable for her not to have complained to us sooner and Mrs X is unable to complain in her own right.

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How I considered this complaint

6. I have discussed the complaint with Mrs Y and considered the information she provided. I have also considered information provided by the Council.
7. Mrs Y and the Council have had 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

The Law

8. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for care following a person’s needs assessment. Where it decides to charge for non-residential or for residential care, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
9. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly.
10. 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. In undertaking the financial assessment, the council must disregard the value of a person’s main or only home for 12 weeks from when they first enter a care home.
11. 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.
12. 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.

13. 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.
14. The care and support statutory guidance says councils must ensure the person paying the top up is willing and able to pay the top up for the duration of the arrangement. The council must ensure the person paying the top up enters into a written agreement with the council to meet the cost.
15. NHS Continuing Healthcare (CHC) is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.

What happened

16. Mrs X received private care at home for four hours a day seven days a week. In 2022 Mrs X’s daughters, Mrs W and Mrs Y, contacted the Council to ask for a care needs assessment of Mrs X.
17. A social worker from the Council visited Mrs X, Mrs W and Mrs Y in July 2022 and assessed Mrs X. The assessment confirmed Mrs X had eligible care needs. It noted Mrs X’s current package was familiar to Mrs X and working, but the provider was more expensive than the Council’s commissioned providers.
18. The social worker’s notes record they explained the Council could commission care directly or arrange direct payments so Mrs W and Mrs Y could decide on the carers. They said care visits were usually no longer than three hours a day. The assessment noted Mrs W and Mrs Y wanted to wait on the outcome of a financial assessment, and what Mrs X’s care contribution would be, before deciding on the next steps. Mrs Y says this was not the case and they asked for a care package to be put in place while waiting for more information on direct payments.
19. Mrs X continued to receive care from the private care agency. Mrs Y provided the Council with financial information for Mrs X. On 14 September 2022 the Council confirmed Mrs X qualified for support with her care fees from 13 August 2022. It calculated Mrs X should contribute £111.87 a week to her care costs. It said its social work team would be in touch once they had completed Mrs X’s care plan.
20. In early December 2022 Mrs W told the Council they believed Mrs X now needed residential care. The social worker returned to visit Mrs X and referred her for a residential dementia placement. In late December Mrs W contacted the Council to enquire about the residential placement. The Council’s brokerage service began looking for a care home for Mrs X.
21. Mrs X was admitted to hospital on 31 December 2022. In January 2023 the Council had identified three suitable care home choices. The records show Mrs X lacked capacity to give her view on the choice of care home. The Council’s records show Mrs W declined all three care homes due to their location. Mrs W and Mrs Y suggested two alternative care homes they had already identified. The records show Mrs W and Mrs Y believed Mrs X would qualify for continuing healthcare funding under the NHS.
22. The Council contacted the two care homes identified by Mrs W and Mrs Y. One did not have availability, the second initially said it could take Mrs X before saying it could not.
23. On 16 January 2023 a social worker for the Council spoke to Mrs W. They explained Mrs X qualified for two weeks of respite care funding at a care home and it would carry out a financial assessment to decide her care contribution following that. The records show the social worker explained that Mrs X’s health had improved so NHS funding was unlikely. Mrs W and Mrs Y suggested a third care home.
24. The third care home confirmed it could offer Mrs X a room at the Council weekly rate of £769.55. It told the Council Mrs W and Mrs Y had chosen a room at £850. Mrs Y emailed the Council on 19 January with several questions about the type of care placement. She asked the Council to confirm it would pay the rate of £769.55 toward the room, and asked how long the top up of £80.45 was due for. Mrs Y also asked the Council about Mrs X’s domiciliary care costs from August 2022.
25. Mrs X moved into the third care home on 20 January 2023. On the same day the Council replied to Mrs Y’s email. It explained Mrs X’s placement was initially a short-term residential dementia placement while it assessed Mrs X’s long-term care needs. It said the placement would not be NHS funded as it was not a nursing placement. It confirmed the first two weeks were non-chargeable but because a room had been available at £769.55 a top up of £80.45 would be payable. It said it would be in touch to clarify arrangements for the top up.
26. The Council began charging Mrs X for her residential care on 3 February 2023. Based on the information it had, it calculated Mrs X should contribute £247.31 a week to her care costs, with an extra top up of £80.45 for the larger room.
27. Mrs W and Mrs Y met the Council on 10 February. The Council emailed after the meeting to confirm the outcome. It reiterated it had not charged Mrs X for the first two weeks of her care but begun to charge from 3 February 2023. It confirmed the cost of Mrs X’s room was £850 and a room had been available at £769.55. It said it needed to confirm whether the top up of £80.45 was payable by Mrs X or a third-party top up. It agreed to review invoices from Mrs X’s care at home.
28. Following more information from Mrs W and Mrs Y the Council wrote to them in March 2023 updating Mrs X’s contribution to £229.31 a week. It also agreed to backdate direct payments for Mrs X’s domiciliary care costs to August 2022. It said it would not meet the full cost of the private care agency as it was not one of its registered providers. It said it would only pay for Mrs X’s assessed eligible care needs, rather than the hours the agency had delivered.
29. In March 2023 the Council began assessing Mrs X’s long term care needs. It confirmed Mrs X was settled in the care home and her needs were being met. Mrs W and Mrs Y confirmed they wanted Mrs X to remain in the care home and they would like to explore a deferred payment agreement to cover Mrs X’s care costs.
30. In July 2023 the Council agreed to make a one-off payment of £2739.05 for Mrs X’s domiciliary care. It said this was based on the August 2022 assessment of what Mrs X’s care would have been. This equalled two and a half hours a day of direct payments for seven days a week, minus Mrs X’s contribution of £111.87 a week.
31. Mrs Y and Mrs W complained to the Council. They said the Council had delayed carrying out a needs assessment of Mrs X at home, so they had continued to pay for four hours a day. They also said they had not selected a more expensive room at the care home and did not have to pay the top up. The Council did not uphold the complaint and said it would stop funding Mrs X’s care unless it received Mrs X’s contribution.
32. In September 2023 the Council wrote to Mrs W explaining funding choices following the end of the 12-week property disregard.
33. In January 2024 the Council told the care home it would end funding for Mrs X’s care on 13 February 2024. It wrote to Mrs W and Mrs Y reiterating the level of domiciliary care they had commissioned for Mrs X was above Mrs X’s assessed eligible care needs. It said it had offered a one-off direct payment of the equivalent to Mrs X’s care needs and would deduct this from the outstanding care home charges. It said it had clearly communicated that Mrs X’s room came with a top up charge.
34. The Council stopped funding Mrs X’s care on 13 February 2024. Mrs X now self-funds her care.

My findings

Domiciliary care charges

35. Mrs Y complained the Council failed to properly assess Mrs X’s care needs in 2022. The Council assessed Mrs X in August 2022 and carried out a financial assessment in September 2022. However, it failed to commission care for Mrs X or provide more information about direct payments. The records show no further contact from the Council about Mrs X’s care package, until December 2022, four months after Mrs X’s assessment. This is fault.
36. Following Mrs Y’s complaint to the Council, it agreed to pay Mrs X the equivalent of direct payments for two and a half hours a day care at home between August and December 2022. The Council based this amount on its care assessment from August 2022. Mrs Y says this is not enough and Mrs X received four hours care a day from her carers. On balance, I am satisfied with the Council’s assessment of Mrs X’s care needs and the hours of care needed.
37. At the time of the assessment the Council’s social worker said any care package was unlikely to be over 3 hours a day. They also confirmed Mrs X’s private carers were more expensive than the Council’s commissioned providers or direct payments would be. Mrs X’s private care package did not increase between August and December 2022 which suggests her needs did not change during that time. While the Council was at fault for not arranging direct payments sooner, I am satisfied it has provided a suitable remedy.

Residential Care

38. The statutory guidance says the Council needs to provide a person with at least one choice of accommodation within their personal budget. The records show the Council offered Mrs X several care homes within its budget of £769.55. While Mrs W and Mrs Y refused these due to location, they were suitable offers of accommodation. Mrs W and Mrs Y opted for a care home they had already identified, in a preferred location at a higher cost.
39. Mrs X’s room at the care home costs £850 a week and Mrs W and Mrs Y were aware of this and did not challenge it when Mrs X moved in. Mrs W and Mrs Y dispute that a room costing £769.55 was available and say they should not have to pay the top up.
40. The Council accepts there was confusion over what room was available. However, correspondence between Mrs W and the Council shows Mrs W was aware the Council would pay £769.55 and a top up would be required. The records show Mrs W also confirmed the amount the Council would pay and the top up amount before Mrs X moved to the care home. Mrs W and Mrs Y met with the Council in February 2023 where the Council confirmed the amounts again. All parties were aware what the Council would pay and that a top up was required.
41. In the correspondence with Mrs W and Mrs Y the Council said it would be in touch to confirm whether Mrs X had to pay the top up or it was a third-party top up. There is no evidence to suggest the Council did this. We have asked the Council for a copy of any top up agreement, and it has not provided one. While a top up was due, the Council failed to follow the proper process, to clarify who would pay the top up and to gain written agreement for its payment. This is fault and caused uncertainty over how and who should pay this.
42. While the confusion over the choice of rooms and the top up agreement caused Mrs Y uncertainty, on balance I am satisfied Mrs W and Mrs Y were aware there was a top up charge and so I cannot say the Council should not have applied the top up charge. Mrs X had also previously been offered a care home at the Council’s funding rate and refused it.

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Agreed Actions

43. Within one month of the final decision, the Council has agreed to:
1. Apologise to Mrs Y for the uncertainty caused by the Council’s failure to assess Mrs X at home, and whether a top up applied to Mrs X’s care charges. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. Pay Mrs Y £500 for the uncertainty caused by the Council’s failure to assess Mrs X at home, and whether a top up applied to Mrs X’s care charges.

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Final decision

44. I have completed my investigation, finding fault causing injustice, which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman