Decision : Upheld
Decision date : 26 Feb 2020
The Ombudsman's final decision:
Summary: The Council has wrongly asked for an additional top-up to residential care home fees. Mr B has been stressed and paid money he should not have had to pay. The Council will apologise, refund the fees paid, pay the care fees in full going forward until any decision the resident should move, and pay Mr B £250 for his distress, time and trouble.
- The complainant, who I will call Mr B, says when the Council placed his mother (Mrs C) in residential care it did not offer at least one accommodation option that was affordable and within the person’s personal budget. There was no genuine choice, Mr B was told that he must pay a top-up or Mrs C must leave the care home; he found it threatening. This was very stressful, at a time that is naturally stressful. The Council then delayed dealing with his complaint and he had to chase it up. Mr B would like the Council to refund any top-ups he has unfairly paid.
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 considered:
- Information provided by Mr B, including in a telephone conversation.
- Information provided by the Council in response to my enquiries.
- The Care Act 2014 and associated statutory guidance.
- The Mental Capacity Act 2005 and associate statutory guidance.
- The Council’s information leaflet ‘Your guide to paying for social care support in Sheffield.’
- Responses to a draft of this statement.
What I found
- Mrs C lived alone with a support package. Mr B lives around 100 miles away, so relied on the Council and care agency to support Mrs C. The care agency raised concerns about Mrs C’s safety, so the Council, with agreement from Mr B, placed Mrs C temporarily into a care home to assess her care needs. This was an emergency placement arranged by the Council; Mrs C paid the Council’s set respite rate for her temporary stay.
- The Council completed a care needs assessment with Mrs C and decided she needed 24-hour care support; it would not be safe for her to return home. The Council completed a mental capacity assessment and decided Mrs C did not have capacity to decide where to live.
- The Council completed a best interests meeting, with Mr B and another family member present. During the best interest decision meeting Mr B stated several times that he did not want to move Mrs C as felt she was now settled; she had been at the care home for ten months. The best interest decision was that all agreed Mrs C should remain at the placement which originally started as respite.
- The Council’s records show Mrs C became a permanent resident in September 2018, but the basis for this is unclear as the best interest decision was not made until March 2019. From the time Mrs C became a permanent resident the care home has charged Mr B a £40 per week additional top-up fee. Mr B questioned this but was told if he did not pay then Mrs C could not stay there. The Care Provider told Mr B the top-up was ‘law’ and the Council said there is no leeway.
- The Council says the maximum weekly amount it will pay for a place in a residential care home is £481.
What should happen
- The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves. A key principle of the Mental Capacity Act is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests.
- The (Choice of Accommodation) Regulations 2014 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.
- The council must 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 local authority 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 local authority to provide the care at the rate identified in the person’s personal budget on the local authority’s terms and conditions.
- 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.
- In such circumstances, 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.
Was there fault causing injustice?
- The Council cannot have an arbitrary ceiling to personal budgets; it is fault to say the maximum it will pay for a care home is £481. This might be used as the indicative personal budget, but if somebody’s needs require a more expensive setting then the Council must adjust the personal budget accordingly and not expect family to fund a shortfall by way of a top-up.
- I accept in this case matters got confused by whether Mrs C was a self-funder, and whether she would stay within the Council’s borough. Because of these issues the Council did not give information about personal budget and paying for fees. But ultimately it became clear Mrs C is not a self-funder and the Council’s best interest decision is that it is in Mrs C’s best interests to remain at the current care home. Therefore, the Council should increase her personal budget to the cost of that care home and not ask Mr B to fund a top-up. This would apply for the whole of her permanent placement.
- The Council argues it was Mr B’s choice. During the best interest meeting Mr B said he thought it was best for Mrs C to stay there, but the ultimate decision was that all parties agreed this was best for Mrs C. This was not a genuine choice that Mr B made for a more expensive home above one that was available within Mrs C’s personal budget, this was a decision the Council took that the current placement was the best place to meet Mrs C’s needs.
- It is worrying to hear the Care Provider told Mr B if he didn’t pay the top-up Mrs C would have to leave. The Council is liable for the full fees of the contract. It can reach an agreement for the additional top-up fees to be paid directly to the care provider as happened here, but it is not recommended. If Mr B had stopped making the payments the Council would have had to pay the full amount, until it either recovered the fees from Mr B or made alternative arrangements to meet Mrs C’s needs. Mr B should never have felt threatened to pay fees in such a way. If a top-up is appropriate the council must ensure the person is willing and able to meet the additional cost for the likely duration of the arrangement.
- Mr B has been paying a top-up for care fees for over 18 months, which he should not have been paying. Mr B felt forced to pay it, even though he said he didn’t want to pay, as otherwise his mother would have to move. This was very stressful for Mr B. It is hard to make decisions in such circumstances, when you feel responsible for the fair treatment of somebody else, and do not want to do something that might put their welfare at risk.
- The Council delayed dealing with the complaint, which added further frustration, time and trouble for Mr B.
- The Council has recognised an issue of staff not properly addressing the issue of top-up fees. The Council is providing retraining to relevant staff.
- To acknowledge the impact on Mr B, the Council will:
- Apologise to Mr B for wrongly asking him to pay a top-up for Mrs C’s care fees, when the Council agreed it was in her best interest for this care home to meet her needs.
- Pay Mr B £250 to acknowledge his distress, time and trouble.
- Refund Mr B the additional top-up payments he has paid to date.
- Pay the full cost of Mrs C’s care fees at the current placement, until such time as any best interest decision is made that it is in Mrs C’s best interest to move. As with any change in circumstance, the Council must undertake a new assessment before considering this course of action, including consideration of a requirement for an assessment of health needs, and have regard to Mrs C’s wellbeing.
- Remind relevant staff that they cannot have an arbitrary ceiling to personal budgets. The £481 is a guide as to what is available within the local market but cannot be the maximum the Council will pay if someone’s needs require a more expensive setting, or a setting within that budget is not available.
- I have completed my investigation on the basis the agreed action is enough to acknowledge the impact on Mr B and prevent future failings.
Investigator's decision on behalf of the Ombudsman