Council breached Care Act duty by failing to offer accommodation within man’s budget, finds watchdog

A council breached the Care Act when it failed to offer a man a nursing home within a man’s personal budget, meaning his family wrongly had to top up the remainder of the cost, the Local Government and Social Care Ombudsman has found.

Warwickshire council also failed to provide Mr C’s family with clear information about the cost breakdown of his personal budget, as it was required to do, meaning they hadn’t understood there was both a client contribution and a third-party top-up.

The failings caused the Mr C’s family confusion and meant his son, Mr B, spent time dealing with the issues that he could have spent with his father in the last few months of his life, causing him ‘upset and frustration’.

Council’s apology

Warwickshire has accepted the ombudsman’s recommendations and formally apologised to Mr B and the man’s wife, Mrs C. It has also agreed to refund Mr B any payment he made towards the top-up and remind relevant staff of the importance of providing clear, simple financial advice to help people understand total care costs and of the importance of keeping clear records

At the start of the period covered by the report, Mr C, who lived in a care home, was taken to a hospital under section 2 of the Mental Health Act for assessment following some ‘challenging behaviour’. The care home said it couldn’t manage his behaviour and he couldn’t return to it upon discharge so the council began planning where he would go.

Following a care needs assessment with Mr B and Mrs C present, it was decided Mr C lacked capacity to decide where to live and he needed a nursing home placement.

Mrs C asked for a placement that she and Mr B could easily visit, but the council didn’t document whether this was required, despite its assessment of Mr C stating he needed support to maintain family and personal relationships.

Budget insufficient to meet need

Mr C’s review document specified a personal budget of £452, though the document also said finances were discussed and residential care home costs were £899 per week. The council’s rate was £491.54, meaning a third-party contribution of £407.46 was required.

The ombudsman said it therefore seemed that, at an early stage, the council knew the estimated personal budget of £452 was not sufficient to meet Mr C’s need for a residential care home suitable for those with dementia. He also criticised the council for putting an arbitrary ceiling on the amount it would spend for certain types of care, contrary to the Care Act statutory guidance.

As required by section 26 of the Care Act, the final amount of the personal budget must be broken down into the amount the person must pay following the financial assessment and the remainder of the budget that the authority will pay.

No evidence of cost breakdown

However, while the council completed a financial assessment to confirm how much Mr C must pay towards his care, the ombudsman found no evidence of a breakdown of the personal budget showing how much Mr C should pay and how much the council would pay.

Mr B told the ombudsman the family thought the personal budget was the total amount the council would pay and that the family would then top up the remainder of the nursing home’s cost

The watchdog said the council’s failure to explain to the family that there was a client contribution, as well as a top-up, was a fault.

“I have not seen evidence of any simple and clear explanations to Mr B about Mr C’s personal budget and care costs, or how the top-up amount links to the personal budget and client contribution,” the ombudsman said.

Failure to offer suitable accommodation within budget

As specified in the Care Act statutory guidance, the council must offer at least one accommodation option that is available and affordable within the person’s personal budget. A person can choose alternative options, including a more expensive setting, where a third party is willing and able to pay the extra cost as a top-up.

Council records seen by the ombudsman showed five of the seven suggested nursing homes were not within Mr C’s personal budget and the two remaining did not appear to be suitable homes: one said it could not take Mr C and the other’s website said it did not take people with dementia.

“[So], I find it more likely than not the care home was not a suitable option even if it was in budget.”

Mrs C visited one of the homes suggested by the council and decided this home was suitable, but the care home’s cost was above Mr C’s personal budget. The council explained it would need a £407.46 top-up per week, which Mrs C said the family would pay.

A funding decision in the council’s records said: “At this point we do not feel there is another alternative and also the wife has made an explicit choice that she felt [the care home] was a compassionate care home to be able to support [Mr C].”

The ombudsman found that it was more likely than not that this was the only available and suitable home.

“Where there is no available and suitable option within the personal budget, the council must up the budget and pay for the available placement in full (minus the client contribution determined by the financial assessment),” the report said. “I find that is what should have happened in this case, and the council should not have asked Mr B to top-up the cost.”

‘Upset and frustration’

The watchdog said the council’s actions “caused confusion to Mr B and Mrs C”.

“It also meant Mr B was dealing with these issues in the last few months of his father’s life, taking available time away from him to spend with his father, and causing upset and frustration.”

A spokesperson for Warwickshire council said: “We regret that our usual high standard of support was found lacking in this instance [and] on the basis of the findings we have formally apologised to the customer and their family.”