Summary: Mrs X complained the Council told her it would cover the cost of her husband’s time at a nursing home but has now charged for it. Mrs X also complained about delays in assigning a social worker and about the cost of home care following her husband’s discharge from hospital. We found fault with the Council for failing to advise Mrs X of her husband’s nursing home costs until September 2023. We also found fault with the Council overcharging for home care costs. The Council agreed to apply a 50% reduction to the nursing home costs and apply a credit of £8.50 to the home care account to reflect the overcharge.

The complaint

1. Mrs X complained the Council told her it would cover the cost for her husband’s nursing home but the Council has now charged for his time there.
2. Mrs X also complained the Council delayed in arranging the first social worker visit to her husband in the nursing home extending his time spent at the nursing home.
3. It has also come to the Ombudsman’s attention that Mrs X’s concerns about charging extend into potential charges about the care her husband is now receiving at home following his discharge from the nursing home.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)

Back to top

How I considered this complaint

7. I have considered all the information Mrs X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
8. Mrs X and the Council had opportunity to comment on my draft decision before I made my final decision.

Back to top

What I found

Law and Guidance

Care Act 2014

9. The Care Act 2014 sets out that councils must carry out an assessment of need for any adult who appears to have a need for care and support. A council must carry out an assessment regardless of a person’s finances or whether a council thinks they have eligible needs. The assessment must involve the individual concerned and their carer or any other person they might want involved where appropriate.
10. If a council decides an adult meets the eligibility criteria for care and support, it will provide a support plan which outlines what services are needed to meet the needs and a personal budget which calculates the costs of providing those services.

Financial Assessment

11. If an adult meets the council’s eligibility criteria for care and support, section 17 of the Care Act 2014 states the council must carry out an assessment of the person’s financial resources. This assessment is to find out what amount (if any) the person can afford to pay towards their care. (Care and Support (Charging and Assessment of Resources) Regulations 2014/2672).
12. Once a person’s capital is below the £23,250 limit, the council must carry out a financial assessment to decide how much the person should pay towards their care costs (the ‘assessed contribution’) and how much the council will pay. Councils must make sure there is information and advice available in a suitable format to ensure care home residents and their representatives understand any charges. (Care and Support Statutory Guidance (2014))
13. In some circumstances the council may choose to treat a person as if a financial assessment has been carried out (a ‘light touch’ financial assessment). A council must be satisfied, based on evidence provided, that the person has financial resources above the upper capital limit of £23,250.
14. A financial assessment should be completed as soon as reasonably practicable. The Ombudsman would expect a financial assessment to be done within four weeks of a care assessment. A care assessment and financial assessment are part of one process.
15. Paragraph 8.2 of the Guidance says that when a council decides to charge for care it should be “clear and transparent, so people know what they will be charged”.

Top-Up Fees

16. When it has been decided a person’s needs are best met in a care home the council must ensure at least one accommodation option is available within the person’s personal budget, and it should ensure there is more than one of those options. The council must ensure the person has a genuine choice of accommodation.
17. A person can choose alternative options, including a more expensive care placement, if a third party or in certain circumstances the resident is willing and able to pay the extra cost (the ‘top-up fee’). An extra payment must always be optional and never as a result of commissioning failures leading to a lack of choice. The Council must not ask for a top-up fee unless a person has actively chosen a more expensive placement.
18. Annex A of the Care and Support Statutory Guidance also says where a council arranges care for a self-funder, the council may choose to enter into a contract with the care provider or it may broker the contract on behalf of the person. Where the council is arranging and managing the contract with the care provider, it should ensure clear written arrangements are in place about how costs will be met including any top-up.

Discharge 2 Assess

19. Discharge 2 Assess (D2A) is designed so people can have their needs assessed out of hospital, as soon as they no longer need to be in an acute hospital bed.
20. D2A outlines different routes for assessment with one of which being a discharge to a short-term care home placement.
21. The Council sets out that it will undertake an initial review of a person following their discharge from hospital. The Council says this review will decide on a person’s needs and the support required to meet their needs.
22. The Council says when it discharges someone to a short-term care home placement it will aim to complete the review within four weeks of discharge from the hospital.
23. The Council says it provides funding to cover peoples care costs for a maximum of four weeks as part of its Discharge 2 Assess pathway. The Council says it can make exceptions to this in certain situations.
24. The Council says it should also provide information and advice to people about funding their own care moving forwards during this initial four week window. The council says it should provide a person with clear information they will be liable for their costs after it has completed its Discharge 2 Assess assessment.

Placement at the care home

What happened

25. Mrs X’s husband, Mr X, was admitted to hospital at the start of January 2023. Mrs X holds a joint Lasting Power of Attorney for Mr X with Mr X’s daughter.
26. On 8 January 2023, a council officer visited Mr X in hospital to discuss his discharge plans. The Council officer discussed the plans with Mrs X to place Mr X in an interim care home on the D2A pathway.
27. The Council explained to Mrs X on both 8 and 9 January 2023 that it would fund Mr X’s care fees for 28 days on the D2A pathway. The Council said this funding would remain in place while it completed its assessment of Mr X. The Council explained it would need to financially assess any further care.
28. On 11 January 2023, the Council discussed the preferred option of care homes with Mrs X. Mrs X requested a specific nursing home, The Nursing Home, which the Council consulted with. The Nursing Home confirmed its costs of £765 per week with the Council.
29. The hospital discharged Mr X to The Nursing Home on 12 January 2023 on the D2A pathway.

Analysis

30. The Council took the correct steps to meet with Mr X in the hospital and discuss this matter with Mrs X as a joint lasting power of attorney holder.
31. The Council decided to place Mr X on its D2A pathway at an interim care home. The Council has considered the regulations surrounding the D2A process and considered its policies in making this decision. I do not find fault with the Council’s decision to discharge Mr X from hospital on this pathway.
32. When the Council decided to place Mr X on the D2A pathway at an interim care home it provided Mrs X with a choice of care home options. Mrs X suggested an alternative which the Council arranged for her. The Council has followed the correct process by seeking an agreement with Mrs X’s chosen care home. I do not find fault with the Council for this.
33. The Council also provided Mrs X with relevant information about the D2A pathway about costs. The Council told Mrs X the Council would fund Mr X’s care costs for the first 28 days before care became chargeable.
34. The Council provided relevant information to Mrs X and placed Mr X in Mrs X’s chosen care home, The Nursing Home, on 12 January 2023. I do not find fault with the Council’s actions leading to Mr X’s discharge from hospital.

Assessment and care home fees

What happened

35. Following Mr X’s discharge on the D2A pathway on 12 January 2023, the Council should have completed his assessment by 9 February 2023. Mrs X raised concerns with the Council on 7 February 2023 the Council had still not completed the assessment.
36. On 17 February 2023, the Council told Mrs X it had arranged an assessment for 20 February 2023. The Council asked Mrs X about Mr X’s assets at this time. Mrs X confirmed he had more than £23,250 in savings. The Council said it would extend the funding from D2A until the assessment on 20 February 2023 but advised Mr X would be a self-funder for his care after this.
37. The Council completed the D2A assessment on 20 February 2023. The Council agreed with Mrs X for Mr X to remain in The Nursing Home for a further four weeks before he returned home with care in place. The Council reiterated to Mrs X that Mr X would now be a self-funder for his care. The Council confirmed with The Nursing Home the fee was £765, including a top-up fee of £110.40, per week but did not advise Mrs X, Mr X or his daughter about this charge.
38. The Council discussed the matter further with Mrs X and Mr X’s daughter and arranged a meeting for 10 March 2023 followed by a follow up call on 14 March 2023. The Council agreed to put a care package in place to enable Mr X to go home.
39. On 17 March 2023, the Council told Mr X’s daughter it had not managed to source a care provider yet but put Mr X’s daughter in contact with some private options.
40. On 22 March 2023, the Council confirmed with Mr X’s daughter it had found a care provider for Mr X. The Council offered this care provider or for Mr X to go private with his care. Mr X’s daughter confirmed they would go with the Council provider but Mr X could not currently go home due an illness in The Nursing Home.
41. Mr X’s daughter confirmed with the Council Mr X could go home on 28 March 2023. Mr X moved home on 31 March 2023 with care in place.
42. Mrs X also complained to the Council in March 2023 about the Council’s handling of the charges for Mr X’s care.
43. On 19 April 2023, the Council confirmed on its system it had extended the D2A funding for Mr X’s care until 20 February 2023. The Council did this because it had been unable to complete the assessment in 28 days.
44. In May 2023, the Council’s internal notes detail discussions about removing the top-up fees for Mr X’s care home charges.
45. The Council issued a complaint response to Mrs X on 26 May 2023. The Council said:
• It had failed to assign a social worker to complete Mr X’s assessment within 28 days from his discharge from hospital.
• It’s records show discussions took place about funding but no exact details of what was discussed.
• Due to the lack of clarity in the case notes it was seeking approval for the Council to pay for Mr X’s placement.
46. Following further discussions with Mrs X and Mr X’s daughter, the Council completed a financial assessment for Mr X’s care home charges on 6 September 2023. The Council’s financial assessment decided Mr X’s care home charges was £654.60 per week. The Council sent the outcome of this financial assessment to Mrs X on 7 September 2023.
47. On 16 November 2023, the Council produced a final invoice for Mr X’s care in the care home totalling £3647.05. This was the cost of Mr X’s care home costs without the top-up fee from 20 February 2023 until 31 March 2023.

Analysis – D2A funding

48. The Council failed to complete the initial care assessment of Mr X until 20 February 2023. This was beyond the 28-day timescale the Council allows for completion of D2A assessments. This was fault.
49. The Council has accepted fault for this delay and extended Mr X’s care home D2A funding until 20 February 2023. This means the Council has already addressed any injustice through its fault by covering the care home charges. Since the Council has not put Mr and Mrs X to an injustice because of the Council’s fault, I consider the Council has already suitably addressed this point.

Analysis – Top-up fees

50. The agreement between the Council and The Nursing Home included top-up fees of £110.40 each week. The Council failed to advise Mrs X, Mr X or his daughter about these top-up fees. This meant the Council failed to ensure it put in place clear written arrangements about these costs with Mr and Mrs X. This was fault.
51. Following Mrs X complaint to the Council, the Council’s notes show discussions about removing the top-up fees for the care home charges in resolution to Mrs X’s complaint. The Council’s notes say it was pursuing this because it’s notes were unclear about what exactly was discussed with Mr and Mrs X about the charges for the care home.
52. The Council has not applied any top-up fees to Mr X’s care home costs when it produced the billing in November 2023. This meant the Council has suitability addressed the fault in not confirming the top-up fees with Mr and Mrs X. I do not consider the Council needs to take further action to address this point.

Analysis – Remaining care home charges

53. The Council’s social care notes and care assessment both confirm Mr and Mrs X were aware of their status as “self-funders” during Mrs X’s time at the care home. The Council confirmed this with Mr and Mrs X on several occasions. There is no fault by the Council in ensuring Mr and Mrs X were aware they would need to contribute towards Mrs X’s cost of care.
54. While Mr and Mrs X were aware that Mr X would be a self-funder, the Council did not confirm the exact cost of care with Mrs X, Mr X or his daughter until September 2023.
55. A council should provide a person with all information it has available at the time of the care assessment. A personal budget should be clear and transparent so a person can understand the cost of their care.
56. The Council knew about the cost for Mr X’s care home placement in February 2023. Despite this, the Council did not explain what the care costs might be for Mr X’s time at The Nursing Home. That was fault by the Council.
57. The Council did not complete its financial assessment of Mr and Mrs X until 6 September 2023. The letter on 7 September 2023 was the first instance the Council provided a monetary value for the cost of care to Mr and Mrs X.
58. The Council took slightly under seven months from the date of the care assessment on 20 February 2023 to provide Mr and Mrs X with confirmation of the care home costs.
59. The Ombudsman would expect the Council to take no longer than four weeks to complete a financial assessment following a care assessment. This six-month delay in completing the financial assessment was fault by the Council.
60. The fault by the Council meant that Mr and Mrs X were unaware of what the cost of Mr X’s care at The Nursing Home would be. While Mr and Mrs X knew they needed to pay for Mr X’s care they had no way of anticipating what the exact cost of this care would be.
61. Mrs X said the letter sent by the Council on 26 May 2023 gave the impression the Council would remove the full costs of The Nursing Home. The Council’s letter to Mrs X on 26 May 2023 was not specific about which charges it would be paying. The letter gives the impression the Council was covering Mr X’s full fees while the Council’s intention was to remove the top-up fees. This confusion by the Council was fault.
62. Since Mr X stayed at The Nursing Home from 20 February 2023 to 31 March 2023, he needs to pay for his time there. However, the Council was at fault for delays in confirming the cost of this care and giving the impression it would cover the cost of this care. The Council should apply a 50% reduction to Mr X’s fees for The Nursing Home to reflect its fault.

Home care fees

What happened

63. As detailed in paragraphs 38 to 41, Mr X’s daughter agreed to a package of home care for Mr X starting on 31 March 2023.
64. The Council started to charge £5.50 per week for Mr X’s telecare and £51.15 per week for his care costs and took payment by direct debit. The Council started to charge £60 per week for Mr X’s care costs from 3 April 2023.
65. The Council contacted Mrs X on 7 June 2023 to discuss a financial assessment for Mr X’s care costs. Mrs X confirmed again that Mr X had savings above the £23,250 threshold and a direct debit was already in place to pay the fees.
66. The Council completed a financial assessment confirming an assessed charge of £51.15 per week for Mr X’s care costs up to 10 April 2023 followed by £60 per week from this date.

Analysis

67. As explained in paragraph 55, a personal budget should be clear and transparent so a person can understand the cost of their care.
68. The Council did not complete a financial assessment for Mr X’s care costs until June 2023. This delay in completing the financial assessment was fault.
69. While the Council was at fault, this did not present an injustice to Mr and Mrs X. This is because, unlike The Nursing Home costs, Mr and Mrs X would have been aware of the care costs in April 2023. Mr and Mrs X were aware of the cots because they were paying the Council every week by direct debit from April 2023 for the care costs.
70. When the Council completed the financial assessment, it said Mr X’s care costs were £51.50 per week until 10 April 2023 and then £60 per week after this point. This is in addition to the £5.50 telecare costs. The Council started to charge the £60 per week care costs from 3 April 2023 instead of 10 April 2023. This means the Council has charged Mr X £8.50 too much for his care costs. This was fault. The Council should apply this £8.50 as a credit to Mr X’s account.
71. Aside from this overcharge in the week of 3 April 2023, the Council has correctly calculated and applied the care costs for Mr X’s care at home.

Back to top

Agreed action

72. Within one month of the Ombudsman’s final decision the Council should:
• Apply a 50% reduction to Mr X’s costs for The Nursing Home because of the Council’s delay in confirming the exact cost of Mr X’s fees and confusion caused about what fees the Council was covering.
• Apply a credit to Mr X’s home care account with the sum of £8.50 for the overcharge in the week starting 3 April 2023.
73. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

74. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman