Summary: Mrs X complained the Council failed to properly finance her mother’s care when her funds fell below the financial threshold. The Council is at fault for mistakes made within the financial assessment and delay completing it. This caused financial and emotional distress.

The complaint

1. Mrs X complained the Council failed to properly finance her mother’s, Ms M’s, care when her funds fell below the financial threshold. The Council has caused delays, failed to properly advise and involve her representatives in the financial assessment. This has caused confusion about funding for Ms M’s care, Ms M overpaying her Care Home fees and Mrs X paying a top-up fee. This has caused financial and emotional distress.

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The Ombudsman’s role and powers

2. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
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 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)
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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How I considered this complaint

5. As part of the investigation, I have considered the complaint and the information provided by Mrs X.
6. I have made enquiries of the Council and considered its response along with relevant law and guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant legislation

Care Plan

8. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Personal Budgets

9. Everyone whose needs the council 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. It should confirm the final amount of the personal budget 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 enough to meet the person’s care and support needs.
10. There are three main ways a personal budget can be administered:

• as a managed account held by the council with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.
  (Care and Support Statutory Guidance 2014)

Charging for permanent residential care

11. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
12. 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.
13. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

Choice of care homes

14. 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.
15. 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.

16. 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.

Top-up payment

17. 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.
18. 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; or
• the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themself.

19. 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.

The Council’s policies and procedures

20. The Council’s website explains charging and paying for adult care services.
21. The website reflects the legislation and guidance as set out above.
22. It explains where the Council is responsible for meeting an individual’s care and support needs and the individual has been assessed as requiring a particular type of accommodation subject to certain criteria.
23. The individual may choose different accommodation or enhanced accommodation which costs more than the council have assessed as their personal budget. This enhancement may come at an additional cost as family and friends may decide to pay the additional sum, this is called a top-up.
24. The top-up is not for care the Council has been assessed is a need.

The Care Home’s website

25. The Care Home’s website says it accepts residents funded by councils, but the family may need to pay a top-up fee.
26. It explains the council can only ask for top-up fees if an individual refuses a care home that meets their assessed needs, and they choose a more expensive one.

What happened

27. I have summarised below the key events; this is not intended to be a detailed account.
28. Ms M lives in a residential Care Home and has done since April 2018. She decided to move into the Care Home when she had capacity to do so. Ms M funded the costs herself and sold her house to continue paying for her care.
29. Ms M has dementia. Her daughter, Mrs X has power of attorney for Ms M.
30. The Care Home provides residential care and support for people living with dementia. Ms M’s Care Plan says the Care Home meets Ms M’s needs.

Request for financial assessment and support

31. In May 2023, the manager of the Care Home rang the Council and told it that Ms M’s funds were decreasing due to paying for her care and she was approaching the financial threshold. The Care Home asked the Council to do a financial assessment.
32. In August, the Care Home rang the Council again and explained Ms M’s savings were low and asked a financial assessment. The Council said the case was waiting to be allocated.
33. The Council assigned an Adult Social Care Officer (ASCO) to Ms M in September.
34. In the middle of September, the ASCO visited Ms M in the Care Home to complete an assessment visit. The attendance notes recorded by the ASCO said Ms M was significantly impaired due to dementia and did not engage with the meeting. The ASCO said ‘I am happy that she is in the correct environment for her support, as she would not manage without the level of support that she is having from the Care Home’.
35. The ASCO closed the case after this visit. There are no records to show they told the family the next stages. Neither do the records show if the ASCO contacted Ms M’s family before the visit. Mrs X told me she received neither.
36. The Personal Finance Unit (PFU) wrote to Ms M at the beginning of October and enclosed a copy of the financial assessment. It estimated Ms M will be eligible for Council funding by the middle of January 2024. Based on this letter, Mrs X told me the family thought the Council would contact them in January to say it was commissioning the care from this date.
37. In the middle of January 2024, Ms M crossed the financial threshold. The Council did not contact the family.
38. In late February, Mr X (Mrs X’s husband and Ms M’s son-in-law) contacted the Council. He worried Ms M would soon have no savings and could not afford to pay the Care Home fees.
39. The Council arranged a meeting at the beginning of March with its Advanced Practitioner (AP), Mr and Mrs X and the manager of the Care Home. They discussed the assessment, the AP said they needed to complete a Mental Capacity Assessment (MCA) as part of this process.
40. They also discussed the Care Home fees. The AP said the Council should have been contributing towards Ms M’s Care Home fees since January when she crossed the financial threshold. The AP explained the Council would backpay the Care Home fees to January. The Care Home would then reimburse Ms M for the fees she had paid.
41. The AP advised a top-up fee of £150 per week would be needed from the family and asked Mrs X to sign the top-up fee agreement. Mr X said they had previously been advised by the ASCO the top-up fee would be £100 per week. Mr and Mrs X said they needed time to consider the document before signing it. Mrs X asked what would happen if they did not pay the top-up fee. The AP said an alternative placement would need to be sourced which accepts the local authority rate.

The Mental Capacity Assessment and Best Interests Decision

42. A few days later, the AP contacted the Care Home and Mr and Mrs X to arrange the MCA for Ms M. This took place over two days at the beginning of March.
43. The AP completed the MCA in the middle of March. The report said Ms M was lacking the mental capacity to decide about her care and residence. The AP made a best interest’s decision in partnership with Mr and Mrs X and the manager of the Care Home.
44. The report listed the benefits and burdens of Ms M remaining at the Care Home. Under the heading benefits, the report said the Care Home is where Ms M decided to move when she had capacity and chose to spend the rest of her life. She is settled and has her physical, emotional and psychological needs met 24 hour a day. Under the heading burdens, the report said Ms M is subject to restrictions and deprived of her liberty. Her family also must pay the top-up fee. The benefits outweighed the burdens.
45. The report listed the benefits and burdens of moving to another care home (presumably one within the Councils budget). The benefits included: Ms M would have her care, support and accommodation needs met and the family would not need to pay towards the care. The burdens were listed and included the same restrictions and deprivations as above, should Ms M remain at the Care Home. Also, there were several others including Ms M being in unfamiliar surroundings with unfamiliar routines, restrictions, staff and residents. It said Ms M ‘may become physically and emotionally distressed and this may impact on her physical and emotional health long term.’
46. The report concluded ‘All agree that it is Ms M’s best interests to remain at the Care Home as this has been regarded as her home since early 2018, she remains settled in this environment and any move would be detrimental to her health and wellbeing.’
47. The Council prepared a Care Plan which repeated the information within the MCA and associated documents. It said Ms M’s dementia has progressed and she is ‘at a stage where it would be unsafe to consider any other options of support.’ The report said the AP advised Mrs X the Council would not pay the full fees for the Care Home and the family would need to pay a top-up.
48. The Council added the commissioned care to Ms M’s records retrospectively in the middle of March.
49. A Council Officer gave a copy of the Care Plan to Mr and Mrs X in late March.

The complaint

50. Mr X was not satisfied with how the Council handled the case and sent several emails to the Council expressing his dissatisfaction. The adult social care team asked the complaints department to investigate.
51. The Council issued a stage one response in the middle of March. The Council accepted there had been an error as it had not entered the package of care on Ms M’s records in January as it should have following Ms M’s savings dropping below the threshold. It apologised for the error and accepted this caused Mr and Mrs X emotional distress and Ms M financial distress.
52. The letter explained several remedial actions the Council proposed to take:
• Add the placement to Ms M’s records.
• Make a back payment of fees to the Care Home.
• Activate the financial assessment and send invoices to Ms M for her contribution towards her care.
• Mrs X to make the top-up payments to the Care Home, backdated to January.
• Mr and Mrs X to ask the Care Home to refund payments to Ms M from January onwards.
53. The Council issued a stage two response in late April. It discussed the actions of the ASCO from May 2023 onwards and said they had poorly documented their involvement. The complaint response says there are no case notes to show the ASCO contacted Mr and Mrs X to invite them to the assessment visit in September, which the ASCO said was their standard practice. It also said ‘there should have been further consideration as to whether a Mental Capacity Assessment’ and key information should have been discussed, checked and recorded. The Council said it considers this poor practice. The ASCO noted they spoke to Mr and Mrs X about the top-up fee and later closed the file. The Council said no records exist which show why the ASCO closed the case. It concluded there had been a ‘clear breakdown in communication at this time which resulted in the Officer not contacting you to explain you should get back in touch with Adult Social Care just prior to Ms M’s funds dropping below threshold.’
54. The letter also said the Social Work Team did not know the PFU had written to Mr and Mrs X in the middle of October 2023 about the date Ms M’s funds were forecast to drop below the threshold in January. The complaint response said it appreciates Mr and Mrs X expected the Council to commission Ms M’s care from this date, which was a ‘reasonable assumption' based on the October letter. It apologised that Mrs X’s ‘transition to ASC has been fragmented’ and recognised the lack of support and delay putting arrangements in place, which was below the expected standards.
55. The stage two response letter referred to the stage one response letter and gave updates on the remedial actions listed above.
56. The Council upheld the complaint and apologised for the Council’s failings. It accepted the matter had caused distress and placed Ms M in financial difficulty.
57. The complaint response set out several service improvements. These included issuing a briefing note to ASC practitioners to highlight the importance of clear discussions and recording these, timely MCAs and a review of policy and procedures to ensure people who are transitioning to ASC from self-funding have access to relevant information.
58. Mr and Mrs X were not satisfied with the response and complained to the Ombudsman in late May.

Analysis

Initial contact and assessment

59. When the Care Home first contacted the Council in May 2023 to say Ms M was approaching the financial threshold, there are no records to show the Council took any action. It was only when the Care Home chased this up in August the Council said the case was waiting to be allocated to an ASCO. The Council allocated the case in September. This is a delay of roughly four months. This is fault.
60. The records do not show the ASCO followed their own standard procedure to tell the family of their visit in September. The ASCO should have told the family they were visiting to do an assessment. This was especially important as Ms M has dementia. The failure of the ASCO to notify and invite the family to this meeting is fault.
61. Following the meeting in September, the ASCO failed to tell the family in writing what the next steps were and closed the file without proper consideration or notice. This is fault.
62. The Council has already accepted this is poor practice and has apologised for the distress caused.

Internal communications between the finance and social care team and the care home fees

63. The PFU completed the financial assessment and projected when Ms M would cross the threshold (middle of January 2024). It wrote to Mr and Mrs X in October with this information. Mr and Mrs X understood the Council would commission the placement from the date of threshold. The PFU did not communicate this with the ASC team. The ASC team therefore did not commission the placement. The poor communication between the two teams is fault.
64. The transition from self-funding to commissioned care should have been seamless. The Council accepted Mrs X’s ‘transition to ASC has been fragmented’ and said this was poor practice. This is fault.
65. This caused Ms M financial distress as she was using savings to pay for her care, taking her below the financial threshold. The Council back paid the fees to the Care Home which then reimbursed Ms M, limiting the financial injustice to Ms M. The fault also caused Mr and Mrs X severe frustration and distress.

The Mental Capacity Assessment and Best Interests Decision Making

66. The Council completed an MCA which said it was in PA best interests that she stays where she is. The benefits of remaining in the care home far outweighed the burdens. To move care homes, the list of burdens was much longer. A best interest’s decision was made for Ms M to remain at the Care Home where she was settled. The MCA report said to move her was detrimental to her health and wellbeing. The Support Plan also said ‘it would be unsafe to consider any other options of support.’ This means the Care Home is the only suitable accommodation for Ms M’s needs. To move Ms M to a different care home, one within the personal budget, is not an option. The Council therefore has a duty to pay for Ms M’s accommodation at the Care Home without a top-up fee. The Council asking Ms M’s family to pay a top-up fee is fault. This has caused significant financial injustice to Mrs X as she paid a top-up fee of £150 per week.

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Agreed action

67. Within four weeks of my final decision, the Council agreed to:
• Increase the payments it makes to the Care Home, so no top-up fee is paid by Mrs X.
• Ask Mrs X for evidence of the top-up fees she has paid to date. Within four weeks of receiving the evidence, pay Mrs X the total amount of top-up fees.
• Apologise and pay Mrs X £500 for the distress caused by delay starting the financial assessment and mistakes made within it (including seeking a top-up fee) and the fragmented approach to transferring to commissioned care.
• Provide guidance to staff explaining when top-up fees are appropriate and how to calculate these.

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Final decision

68. I have completed my investigation. The Council is at fault for delay completing the financial assessment and mistakes within it and the fragmented transfer to commissioned care.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman