Decision : Upheld
Decision date : 15 Jan 2019
The Ombudsman's final decision:
Summary: Mr X complained the Council failed to clearly explain the top up fee procedures and delayed carrying out a financial assessment of his late mother, Mrs M. On the evidence I have seen the Council was at fault. It failed to clearly explain the top up fee procedure, did not carry out an initial risk assessment of Mrs M, delayed the financial assessment and requested a contribution from Mr X after it assessed Mrs M should not be moved from the care home. This leaves Mr X with a sense of uncertainty over whether he should have had to pay the top up. The Council has agreed to refund the amount Mrs M paid when it delayed the assessment, refund the top up fee paid by Mr X after the Council’s risk assessment of Mrs M and pay Mr X £250 to acknowledge the frustration and uncertainty caused by its faults. It has also agreed to review its procedures.
- Mr X complains the Council:
- delayed the financial assessment for his late mother, Mrs M’s residential care and did not backdate the funding to the date Mr X first contacted the Council to request assistance;
- failed to clearly explain the third party top up procedure in full; and
- only suggested there was room for negotiation regarding the top up fees when Mr X said he could no longer afford to pay them.
The Ombudsman’s role and powers
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If we are satisfied with a council’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)
How I considered this complaint
- I have considered the information supplied by Mr X and have spoken to him on the telephone. I have considered the Council’s response to my enquiries and the relevant law and guidance.
- I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered their comments before I reached a final decision.
What I found
- The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
- The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
- The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.
- The care and support planning process will identify how best to meet a person’s needs. As part of that, the council must provide the person with a personal budget. The personal budget is the cost to the council of meeting the person’s needs which the council chooses or is required to meet. The council must ensure that at least one choice is available that is affordable within a person’s personal budget and should ensure there is more than one choice.
- 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.
- 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.
- The resident has entered a deferred payment scheme with the council and is willing to pay the top up fee himself.
The Council’s contract with care homes
- The Council has a standard fee rate for residential placements. The Council’s contract states that ‘where the gross weekly fee quoted by the provider exceeds the Salford Standard Fee Rate for the delivery of Service under this contract, the Provider will identify their rationale for the difference. This will enable the Council to consider and determine the appropriate source of any additional funding required to progress with the placement’.
- It states ‘If the Council can source the Service in full from an appropriate, alternative provider for the Salford Standard Fee Rate, and the Service User and/or Service User Representative wishes to proceed with a Placement at the Premises, the Service User and/or a Third Party will be asked to consider making a commitment to the Council to account for the difference in rates (commonly known as a top up contribution). Where this is the case, in the circumstances described below the Council and the Provider will give effect to the choice of the service user:
- the Service User or Service User Representative has identified the Premises as their preferred accommodation for the provision of Care and Accommodation in a registered Care Home;
- the Service User will receive demonstrable enhanced services and/or facilities over and above that available to any other Service Users within the Premises that are not asked to pay such a contribution;
- in choosing the Premises as their preferred accommodation, the Service User or Service User Representative is made aware prior to acceptance of the Placement that the such a contribution will be payable;
- the Council is satisfied that the Service User or an appropriately identified Third Party is willing and able to make the necessary financial commitment to the Council for the duration of the Service User’s stay at the Premises;
- the Service User or Third Party has agreed to pay the contribution to the Council and has entered into a binding agreement with the Council as appropriate;
- the Council’s agreement with the Service User and / or Third Party has not been terminated and/or the Service User’s 12-week Property Disregard or Deferred Payment Agreement with the Council has not expired or been terminated.
- Since July 2014, Mrs M lived in a residential care home which she self-funded. Mr X contacted the Council on 5 June 2017 as Mrs M’s money had fallen below the financial threshold for council funding. He wanted Mrs M to be assessed for council funding for the accommodation.
- The Council assessed Mrs M in August 2017. The notes record the aim was to ‘get panel funding so she could continue to remain in her current placement’. It assessed Mrs M‘s old age impacted on her ability as did a number of medical conditions. Mrs M required constant assistance with transfers and mobility. She required support to maintain her heath, nutritional and environmental care needs and met the eligibility criteria for care and support. Mrs M had capacity to make informed decisions in respect of her care needs and agreed to remain in a residential care home. The notes record ‘the money has now dropped below the threshold and therefore requires social services funding to maintain the current placement’. The Council agreed to send Mr X the financial form and third party agreement. Mr X says he was told there was a top up he would have to pay or Mrs M would have to be moved from the care home.
- The cost of the care home was significantly higher than the Council’s standard rate. Mr X signed a third party top up agreement at the end of August 2017 to pay the difference between the Council rate and the care home cost. The third party agreement letter stated ‘if you do not make these payments it may mean that [Mrs M] has to be removed from the home’.
- The Council agreed to fund Mrs M’s placement up to its budget level in September 2017.
- In October 2017 Mr X queried the effective date of Mrs M’s funding and raised concerns that he had to pay the top up, which was around £310 per week.
- In October 2017 the Council reviewed Mrs M’s placement. The notes record Mr X said he could not sustain the top up fee and wanted to appeal the decision. The Council advised there were other care homes that could equally meet Mrs M’s needs. The notes record Mr X ‘felt he could not move his mother… as she had been there over three years and had settled quite well.’ The Council recorded Mr X did initially agree to pay the top up and signed the third party agreement form.
- Mr X complained to the Council in November 2017 as he could not sustain the top up.
- In December 2017 the Council noted the current placement was meeting Mrs M’s needs and made the placement permanent.
- In January 2018 the Council agreed to backdate Mrs M’s funding. The Council’s target was to complete social care assessments within 28 days of the first point of contact. As it had not met this target it agreed to backdate Mrs M’s funding to 28 days after Mr X’s first contact with the Council, being July 2017.
- Mr X contacted the Council in March 2018 to advise Mrs M was admitted to hospital. He said the family would no longer pay the top up fee and requested the Council formally reassess Mrs M’s needs.
- The Council visited Mrs M in hospital in April 2018 to reassess her needs. The Council concluded Mrs M needed a full nursing assessment. The Council spoke to the Care Home about the possibility of Mrs X moving to a less expensive room to reduce the cost. Mr X agreed and Mrs M returned to a less expensive room at the residential home as the family were struggling with the costs. This reduced the top up to around £200 a week.
- The hospital discharged Mrs M back to a nursing bed at the care home in April 2018. The Council arranged a multi-disciplinary meeting in April 2018 which decided it was in Mrs M’s best interests to go through the continuing health care process to determine if she met the criteria to be fully funded by the NHS.
- At the end of April 2018 Mr X received a revised top up agreement form. He told the Council he would not sign it. He considered any attempt to move Mrs M to a different care home would be detrimental to her safety and well being. On 1 May 2018 the Council carried out an assessment of the risk to Mrs M of moving to a different care home without a top up charge.
- The notes record Mrs M was very frail, not able to tolerate transfer even with a hoist, does not weight bear and could only eat a pureed diet. The Council’s assessment said any attempt to move Mrs M would be detrimental to her mental, emotional, physical and psychological well being. Although her physical needs could be met elsewhere her psychological and emotional needs were best met at the current placement.
- The Council contacted Mr X in May 2018 to ask whether the family were willing to contribute some money towards the top up cost at the care home. Mr X advised the Council the family could not afford to pay the top up. He also considered the risk assessment should have been completed sooner.
- Mrs M died in June 2018.
- The Council accepted it delayed carrying out Mrs M’s needs assessment and financial assessment. This delay was fault. When Mr X complained, the Council agreed to backdate its funding to 28 days after Mr X’s request, to July 2017. This was because its target was to complete assessments within 28 days. However, the Council’s contract with care homes states that ‘Where it is agreed that the resident is eligible for public funding, the Council will backdate payment of the Gross Weekly Fee to the date of receipt of referral for assessment’. On this basis I consider the Council was at fault and therefore should backdate the funding to when Mr X first contacted the Council on 5 June 2017.
- The Council was not responsible for placing Mrs M in the care home. Mrs M had lived there for three years before the Council became involved and had settled in the home. Mrs M was self funding and Mr X was aware of the cost of the home, which was significantly higher than the Council’s standard rate.
- However there is no evidence the Council clearly explained the alternatives to signing a third party top up agreement to Mr X. This is fault. The Council’s contract with care homes sets out that where the rate is higher than the Council’s standard rate it expects that the Service User will receive demonstrable enhanced services and/or facilities over and above that available to any other Service Users within the Premises that are not asked to pay such a contribution. There is no evidence the Council questioned with the care home the cost of Mrs M’s placement. The Council’s contract states the transfer to a public funded placement will be treated in the same way as a new placement. There is no evidence the Council discussed with the care home whether there was room for negotiation regarding the cost of the placement.
- In response to my enquiries the Council provided information on seven residents currently funded by the Council at the same care home. Of these residents four do not pay a top up. The other three do but at a lower rate than that paid by Mr X for Mrs M’s care. There is no evidence to show why this was the case. It is possible there may have been some room for negotiation with the care home regarding the fees Mr X paid.
- On this basis I would have expected the Council to discuss with the care home whether there was any room for negotiation regarding the care home fees or alternative rooms available at a cheaper rate. There is no evidence this happened. This is fault.
- The Council did not carry out a risk assessment of whether Mrs M could safely be moved to another care home and did not offer an alternative within its budget level. This is fault. However, even if the Council had offered an alternative care home, I do not consider Mr X would have chosen to move Mrs M. Mr X agreed to pay the third party top up. Had he not done so, the Council would have had to consider the risk of moving Mrs M. If the Council had carried out a risk assessment I cannot say what the outcome would have been and whether the Council would have concluded Mrs M could or could not be moved. By the time it did carry out a risk assessment Mrs M’s condition had significantly deteriorated following a stay in hospital. In addition I cannot know whether there was a smaller room available at the care home at that time and whether Mrs M would have agreed to move to it.
- In October 2017 Mr X first raised concerns about the level of top up. Mr X told the Council he could not sustain the payments. The Council did not offer Mr X any alternatives. It just noted that Mr X had signed the agreement. It did not suggest he approach the care home to try to negotiate a lower fee or discuss the option of moving homes. This is fault. Following Mrs M’s stay in hospital Mrs M moved to a cheaper room at the care home. There is no evidence this possibility was suggested or discussed earlier.
- I cannot say, even on balance, that if it was not for the faults Mr X would not have had to pay a third party top up fee. However the faults have left Mr X with a sense of uncertainty over what may have happened. That is an injustice to him.
- The Council reassessed Mrs M’s needs on 1 May 2018, after Mr X said the family could no longer pay the top up. The Council asked Mr X what the family would be willing to pay towards the top up. The Council had assessed Mrs M and decided she could not be safely moved from the care home. The Council was therefore responsible for the full cost of care home from this date and it was not open to the Council to request a contribution from Mr X. The Council was at fault.
- Within one month of the final decision on the complaint, the Council has agreed to:
- refund Mrs M’s estate the amount the Council should have paid towards the care home fees from when Mr X first requested its involvement on 5 June 2017 to the date it started contributing to the fees;
- pay Mr X £250 to acknowledge the frustration and uncertainty caused by its faults.
- refund to Mr X any top up fees he paid from 1 May 2018, when the Council assessed Mrs M could not be moved from the care home.
- review its procedures to ensure there are no unnecessary delays in carrying out assessments; and
- remind staff of the importance of carrying out timely risk assessments when the Council is asked to pay for care for residents who were previously self funding.
- I have completed my investigation. I have found evidence of fault leading to injustice which the Council has agreed to remedy.
Investigator's decision on behalf of the Ombudsman