London Borough of Bromley (19 001 438)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 26 Nov 2019

The Ombudsman's final decision:

Summary: There was fault by the Council. It cannot evidence that it made sure it could meet Mr B’s care needs within his personal budget. The Council should apologise to him and his family and takeover the payment of the third party top up fees to the care provider until such time as it can show that Mr B’s needs can be met within the budget. There was no fault by the Council in how it advised Mr B’s family about funding or how it assessed Mr B’s contribution to his care charges.

The complaint

  1. Mr X complains on behalf of his father, Mr B, that the Council:
    • Did not adequately explain how his father’s care would be financed or that the level of funding stated by the Council included his father’s contribution;
    • Did not offer other residential care homes that could meet his father’s needs, particularly his cultural, language and religious needs, within his personal budget; and
    • Has not calculated his father’s contribution properly so he is not left with enough money.
  1. Mr X says he is having to pay a third party top up to the fees that he cannot afford. This is causing him and his family stress and making Mr B’s future accommodation uncertain.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)

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How I considered this complaint

  1. I considered the information provided by Mr X and discussed the issues with him. I considered the information provided by the Council including its file documents. I also considered The Care Act 2014 and regulations as well as the Care and Support Statutory Guidance 2014. Both parties have had the opportunity to comment on a draft of this statement. I have summarised the Council’s comments below.

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What I found

The law and guidance

  1. The Care Act 2014 sets out the Council’s duty to assess the care needs and financial resources of the person needing care, and also allows the Council to charge for the cost of care.
  2. The government issued the Care and Support Statutory Guidance 2014 which sets out how councils meet these duties. This says “The personal budget is defined as the cost to the Council of meeting the person’s needs which the Council chooses or is required to meet. However, the Council should take into consideration cases or circumstances where this ‘cost to the Council’ may need to be adjusted to ensure that needs are met. For example, a person may have specific dietary requirements that can only be met in specific settings.” (Annex A paragraph 11 of the Care and Support Statutory Guidance 2014)
  3. The (Choice of Accommodation) Regulations 2014 (SI 2014/2670) sets out what people should expect from a council when it arranges a care home place for them. It says that once a needs assessment has determined what type of accommodation will best suit the person’s needs, the person will have a right to choose the particular provider or location, subject to certain conditions.
  4. The Council has to arrange to accommodate the person in a care home of his or her choice provided:
    • The accommodation is suitable for the person’s assessed needs;
    • To do so would not cost the Council more than the amount in the adult’s personal budget for accommodation of that type;
    • The accommodation is available; and
    • The provider of the accommodation is willing to enter a contract with the Council to provide the care at the rate identified in the person’s personal budget on the Council’s terms and conditions.
  5. 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.
  6. 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.
  7. 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.
  8. Having chosen a setting that is more expensive, based on good information and advice, the Council should ensure that the person understands the full implications of this choice, remembering that this is often a point of crisis. This should include for example that a third party, or in certain circumstances the person needing care and support, will need to meet the additional cost of that setting for the full duration of their stay and that should the additional cost not be met they may be moved to an alternative setting.
  9. Ultimately, if the arrangements for a ‘top-up’ were to fail for any reason, the Council would need to meet the cost or make alternative arrangements, subject to a needs assessment. Further details are set out below in the consequences of ceasing to make payments. Local authorities should therefore maintain an overview of all ‘top-up’ agreements and should deter arrangements for ‘top-up’ payments to be paid directly to a provider.

What happened

  1. Mr B lived at home with his son, Mr X and daughter in law, Mrs X. However, his mobility was deteriorating, he had several falls and could not get up. He had forgotten to take his diabetes medication and he had burnt himself making drinks. As his care needs increased, his son and daughter in law found they could not meet these, and started to look for residential care for Mr B. As well as his physical care needs, Mr B speaks Guajarati with only a limited amount of English, and he is Jain, and in observance of his faith follows a vegetarian diet with no eggs, onion, or garlic.
  2. The Council assessed Mr B and agreed that he needed residential care. In January 2019, the Council suggested he move to a nearby home which it described as Asian/ English.
  3. Mr X has told me that they wanted his father to live close by as he had always lived with them. He telephoned the home, but staff in the office told him that nobody spoke Guajarati and they could not cater for his dietary needs.
  4. The Council files show that the local home told the Council the family wanted Mr B to move to a different geographical area. The family had found a home (Home A) that could meet Mr B’s needs in another London borough, however, Mr X assures me the reason they rejected the local home was because it could not meet his father’s needs. The Council files are clear that it understood this was the reason the family rejected the local home.
  5. Home A has Guajarati speaking staff as well as social and religious events in that language, and could provide Jain meals. The Council told Mr X that the Home A however was much more expensive than its usual rate. Mr X asked the Council to reconsider. The Council agreed to increase the personal budget to the rate of the borough Home A is in which is just under £200 per week more than it would usually pay. In an email to Mr X, the Council confirmed that it had “agreed to fund at the residential rate…at £637pw”. This would still leave a shortfall of nearly £240 per week.
  6. The Council later the same day emailed a fuller explanation of the funding arrangements, explaining that the £637 would include Mr B’s contribution from his pension. It also sent him a link to its online guide about paying for care, which again sets out that most people can expect to pay something towards their care and the Council would need to assess the person’s finances to decide how much they would need to pay. By this time a vacancy had arisen at Home A and Mr X accepted this.
  7. Before Mr B was admitted to the residential home, the Council wrote to Mr B with information about the third party top up and he had signed an agreement which made clear that the top up cannot be paid from his father’s funds.
  8. Mr B moved in and when Mr X started to receive bills, he realised he had misunderstood how the funding would work. He had thought that the Council would pay £637 and that he and his father together would be able to pay the shortfall and that this could come from his father’s pension. However, the Council’s figure included his father’s contribution and the shortfall was for Mr X and the family to find.
  9. The Council assessed Mr B’s income and decided he should pay £240 per week and that Mr X would still need to pay a top up of a further £240 per week. By this time Mr B had settled into the home and his family did not want to move him.
  10. Mr X complained to the Council. He asked the Council to pay half of the top up fee and he would pay the difference. The Council responded on 12 April. It said:
    • It had sent him information about how the fee was broken down and a link to its guide before Mr B moved in.
    • The Council had explained verbally that he could not use his father’s income to pay the top up and that the family would be responsible for all of it on 20 January.
    • Mr B’s needs could have been met within the Council’s rate of £637 per week and Mr X had chosen a more expensive home, knowing that the family would have to pay a top up fee.
  11. Mr X said that he was told too late, after arrangements had already been made. He also said the Council had not been able to meet Mr B’s needs elsewhere. Mr X says that when he found out how much the family would need to pay, he went back to the local home the Council had suggested in case he had misunderstood what they could offer. However, the home confirmed there were no staff or residents that could speak Guajarati and they could not guarantee the correct diet at that time.
  12. The Council’s files show that it did consider whether it had been able to offer Mr B a choice of home that would meet his needs within his personal budget. An internal email confirms the Council’s view that it would expect all care homes to provide services to adults of various ethnic, cultural and religious backgrounds and so does not believe that Mr B’s needs cannot be met in the local area.

Was there fault by the Council causing an injustice to Mr B or his family?

  1. The Council responded to a draft of this statement. It says that Mr B did not agree to providers assessing whether they could meet his needs, but decided to move to Home A. I have some sympathy with the Council’s position. Mr B’s family is aware that his needs may be met in a variety of ways and not just by Home A, and in addition, Mr B had to make a decision about Home A while there was a vacancy.
  2. Events moved quickly and the parties agree that neither Mr B nor his family were inflexible about where he might live, and did not deliberately refuse other provider’s assessing whether they were a good fit. However, the Council cannot evidence that it investigated available homes sufficiently or offered a place within Mr B’s personal budget.
  3. This was fault by the Council. It is not enough for the Council to say that it expects homes to provide services to people of all cultural, ethnic and religious backgrounds. It must satisfy itself that it has offered a home that can actually do this within Mr B’s personal budget.
  4. I can see how Mr B misunderstood the funding arrangements, and I do believe that his mistake is genuine. However, there was no fault by the Council in how it communicated with the family about how Mr B’s place at Home A would be funded. The relevant information was made available to Mr B and he would have seen that his father had to contribute to his care and that his father could not pay the third party top up.
  5. I have seen the Council’s financial assessment by which it decided how much Mr B should contribute to his care. There was no fault by the Council here.
  6. The Council’s shortcomings have meant that Mr X cannot be sure whether it should be meeting the shortfall in fees and has left Mr B’s future uncertain. The Council should take action to remedy this.

Agreed action

  1. Within one month of this decision, the Council will show the Ombudsman that it has:
    • Apologised to Mr B and Mr X;
    • Taken over payment of the third party top up;
    • Paid to Mr X the total of the third party top up payments he has made to date (or to the home the top up payments due); and
    • Shared this decision with relevant staff.
  2. Within two months, the Council will show the Ombudsman it has investigated how other homes can meet Mr B’s language and religious needs within his personal budget.
  3. If the Council cannot find a home that can do this, then it will continue to pay the third-party top up fees. If it finds a home that can meet Mr B’s needs, then he and his family can decide whether to move to the cheaper home, or whether to resume paying the third party top up fees.

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Final decision

  1. I have completed my investigation. There was fault by the Council causing an injustice to Mr B and his family. The Council has agreed to implement the actions I have recommended. These appropriately remedy the injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman

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