Summary: Mrs X complained the Council told her that her mother, Mrs L would not have to pay towards her care costs when she went into a care home, but it then charged her for the care. Mrs X said Mrs L could not afford to pay the fees from her pension. There was fault in the Council’s actions as it did not record if it explained Mrs L’s contribution to her care costs and delayed in completing a financial assessment. The Council agreed to apologise for the uncertainty and frustration this caused Mrs X.

The complaint

1. Mrs X complained the Council told her that her mother, Mrs L would not have to pay towards her care costs when she went into a care home, but it then charged her for the care. Mrs X said Mrs L could not afford to pay the fees from her pension and she wanted the Council to cancel the charges.

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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 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)When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
3. 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

4. I read the documents Mrs X provided and discussed the complaint with her on the telephone.
5. I considered the documents the Council provided in response to my enquiries.
6. Mrs X 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

Residential Care

Choice of care homes

7. 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.
8. 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.
9. 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 payment

10. 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.

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 but will still need to contribute to the care costs from their income. People in a care home will contribute most of their income towards the cost of their care and support. However, they must be left with a specified amount of their own income to spend on personal items. This is called the personal expenses allowance (currently £23.50 per week).
14. The council must disregard the person’s property in the financial assessment for the first 12 weeks of their permanent care home placement. If the stay was initially temporary the 12 weeks will run from the date the placement becomes permanent.

What happened

15. Mrs L had been staying temporarily in care home A following a hospital admission in July 2022. The Council’s social worker completed a needs assessment with Mrs L and her daughter Mrs X. The assessment decided Mrs L needed 24-hour care to meet her needs and everyone agreed a care home would be best. The Council agreed a weekly budget of £572 for Mrs L’s care.
16. The Council began its brokerage process and identified a number of care homes for Mrs X to consider. Mrs X told the social worker she was also going to visit care homes not identified by the Council. The social worker told Mrs X to tell the care homes that Mrs L had a budget of £572 a week from the Council.
17. As Mrs L’s financial representative Mrs X filled out a financial details form for her in July 2022. Mrs X provided information about Mrs L’s income, savings and property. The form said the information would be used to calculate the amount Mrs L must contribute towards the cost of her care and support. The form had a declaration that said the assessed contribution charge would be backdated to the start of the care and support and must be paid when due. Mrs X signed the form.
18. In August 2022 Mrs X identified care home B as the best placement for Mrs L. It did not require a top up fee. A few days before Mrs L was due to move, care home A stated it could offer Mrs L a reduced rate of £625 per week as a permanent resident. The social worker discussed the matter with Mrs X and said the Council would only pay £572 per week. Mrs X agreed that she would pay the top-up fee of £53 per week direct to care home A.
19. Mrs L’s placement at care home A became a long-term residential placement at the beginning of September 2022.
20. The Council completed the financial assessment for Mrs L and wrote to Mrs X with the outcome at the end of January 2023. It said Mrs L’s weekly contribution towards her care based on her pension, and disregarding the personal expenses allowance was £255.89. It back dated the contribution to September 2022.
21. Mrs X responded to the Council and said the social worker had told her the Council’s budget for Mrs L’s care was £572, she had been paying the top up to the care home directly. She said the social worker had told her verbally there would be no further charges. Mrs X said the contribution the Council was now requesting would take all Mrs L’s pension and she would be unable to pay her household bills.
22. The Council responded and explained how it had calculated the charges and that as Mrs L was in long term residential care she should not have ongoing household bills.
23. The Council wrote to Mrs X asking for information on Mrs L’s property to establish how it should be treated in the financial assessment in February 2023. Mrs X sent the information to the Council.
24. The Council revised its financial assessment in March and wrote to Mrs X. It said it disregarded Mrs L’s property for the first 12 weeks. It included Mrs L’s share of the property from December 2022 onwards and her revised contribution to her care was £572, which included the value of her property. It explained part of the payment could be delayed until the property was sold.
25. Mrs X complained to the Council in April. She said she disputed the charges and asked the Council to cancel them. She said the social worker did not say there would be a financial assessment and said as Mrs L had less than £24,000 savings the Council would fund the placement for £572 per week.
26. The Council completed an annual review of Mrs L’s financial assessment in May 2023. It confirmed Mrs L was a full cost payer and the weekly contributions would increase to £622.
27. The Council responded to Mrs X’s complaint in June 2023. It partially upheld Mrs X’s complaint. It said:
• There was no evidence the social worker had verbally explained a contribution would be required following a financial assessment and it apologised.
• Mrs X had received the financial details form which explained the information she provided would be used to calculate Mrs L’s contribution to the cost of her care, and so she was aware contributions may be required.
• The form included electronic links to the Council’s website which provided further information and explanations on care charges, financial assessments and contributions.
• It sent Mrs X a letter in January 2023 explaining the charges Mrs L needed to pay.
28. Mrs X was dissatisfied with the Council’s response and asked it to consider her complaint further.
29. The Council responded in July and did not change its findings. It offered further explanation of the personal budget and contributions.
30. Mrs X brought her complaint to us in August 2023.

My findings

31. The Council arranged Mrs L’s care. It advised Mrs X that Mrs L had a budget of £572 a week to meet Mrs L’s care needs. This is the maximum amount the Council would pay towards the cost of a care home.
32. Mrs X said the social worker told her there would be no charge for Mrs L’s care, other than the top up fee paid directly to the care home, as her savings were below the lower capital limit. The Council had no record to show the social worker explained a contribution would be required after a financial assessment. There is no evidence the Council explained the budget was the total amount the Council was willing to pay and that this figure included any contribution Mrs X was required to make. This was fault and caused Mrs X uncertainty.
33. However, prior to Mrs L’s placement being arranged, the Council told Mrs X that Mrs L would be assessed for her contribution to her care and it would be backdated to when her care started. This information, and links to further advice and guidance, were included on the financial details form Mrs X completed in July 2022. So Mrs X was aware there may be a contribution to pay.
34. In addition, Mrs X completed the financial assessment form in July 2022 and the Council informed Mrs X of Mrs L’s contribution in January, March and May 2023. So by January 2023 Mrs X was aware of Mrs L’s contribution and what she was required to pay. We would normally expect a financial assessment to be completed within six to eight weeks. In this case it was not completed until five months after the placement became permanent. This delay was fault and further added to Mrs X’s uncertainty.
35. Mrs L became a permanent resident at the care home in September 2022. The Council completed the financial assessment in line with the legislation and established the contribution Mrs L should make towards her care in January 2023 and backdated it to September. It completed a financial reassessment in March 2023, when the initial property disregard had ended, and decided Mrs L should pay the full costs of her care. There was no fault in how the Council completed the financial assessment and so I cannot question the outcome.
36. Mrs L received the care and support since September 2022 and the Council is entitled to charge for the care and support it provides. However, the Council’s delay in completing the financial assessment, and the lack of records to show what, if anything, the social worker explained caused Mrs X confusion and frustration. The Council had already apologised for the lack of records. The Council agreed to my recommendation to make a further apology below.

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Agreed action

37. Within one month of this decision the Council will apologise to Mrs X for the uncertainty and frustration caused to her by the Council’s delay in completing the financial assessment for Mrs L.
38. The Council will provide us with evidence that it has completed the recommendation.

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Final decision

39. I have completed my investigation. There was fault in the Council’s actions causing injustice and the Council agreed to my recommendation to remedy that injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman