Summary: Mrs X complained on behalf of her parents, Mr and Mrs Y. She said the Council failed to properly explain third-party top-ups when arranging her father’s care and failed to offer a genuine choice of accommodation. The Council was not at fault in the choice of accommodation offered or in the information it provided about top-ups and financial assessments. However, it failed to complete the annual review of the third-party agreement causing Mrs Y financial hardship as she states she cannot afford the payments. To remedy the injustice caused, the Council has agreed to waive the top-up fees from July 2020.

The complaint

1. Mrs X complained on behalf of her parents, Mr and Mrs Y. She said that the Council failed to properly explain third-party top-ups when arranging her father’s care. She said he was not offered a genuine choice of accommodation, as the cheaper option was too far for Mrs Y to travel.
2. Mrs X said the top-up fees were placing Mrs Y under significant financial pressure and if Mr Y had to leave his current accommodation, it would be detrimental to his health and wellbeing.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I read the complaint information provided by Mrs X and made enquiries of the Council.
6. I referred to the relevant legislation and guidance including the Care Act 2014 (the Guidance), the Care and Support (Charging and Assessment of Resources) Regulations 2014, the Care and Support Statutory Guidance 2014 and The (Choice of Accommodation) Regulations 2014.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Financial assessments

8. Councils must carry out an assessment for any adult with an appearance of need for care and support. Where the person has eligible needs, the council must prepare a personal budget. That is the amount of social care funding the council will provide to meet the person’s eligible care needs.
9. Councils can charge for care they arrange or provide. The Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the charging rules councils must follow when arranging a care home placement.
10. The regulations say people who have capital over the upper limit (£23,250) are expected to pay the full cost of their residential care home fees. However, once their capital has reduced below the upper capital limit, they only have to pay an assessed contribution towards their fees. The Council must financially assess the people who have less than the upper capital limit to decide how much they can contribute towards the cost of care home fees.

Top up payment

11. The Guidance says councils must ensure they offer adults a genuine choice of accommodation, with at least one option being affordable within a person’s personal budget. However, a person must be able to choose an alternative option, including a more expensive setting where a third-party is ‘willing and able’ to pay the extra cost for the duration of the arrangement. The Council must ensure the third-party enters into a written agreement, agreeing to meet the cost.
12. If the third-party arrangements for the top-up fail, the Council becomes responsible for the full fees. In these circumstances, the Council may pay the full cost of care or make alternative care arrangements following a needs assessment. Because of this, the Guidance states councils should maintain an overview of all top-up agreements, and that they must set out how often they will review the top-up arrangements.
13. The Council’s top-up agreement form states it will review top-up payments annually unless a review is requested earlier by either the Council or the third-party.

What happened

14. Mr Y has two daughters, Mrs X (the representative in this complaint) and Ms F. Up until the start of 2019, Mr Y lived with his wife, Mrs Y, at home.
15. Mr Y was admitted to hospital in April 2019. Whilst in hospital, the Council spoke to Ms F who confirmed that she and Mrs X were applying for power of attorney for Mr Y’s finances. They discussed Mr Y needing future support with his care needs if he were to return home, and the requirement of a financial assessment to determine the amount Mr Y would need to contribute to his care.
16. Because of Mr Y’s care needs, the Council and family agreed he would benefit from residential care. At the end of May 2019, the hospital discharged Mr Y into a residential care placement to assess his long-term needs. That placement was funded for six weeks.
17. The case records show the Council spoke to Mrs X in June about how the Council funded care, its policy for choice of accommodation and the implications of third-party top-ups. It met with Mrs X and Mrs Y the following day. The case notes for that meeting show the Council again discussed funding and third-party top-ups. Mrs X signed a form to confirm she understood Mr Y may need to make financial contributions for his care and that they had received information about financial assessments.
18. The Council emailed Mrs X a fortnight later. It said it had identified two care homes suitable for Mr Y- Home 1 and Home 2. It said Home 1 cost £467 weekly and Home 2 cost £750 weekly and that “[Mr Y] would pay a client contribution towards his care. [Home 1] incurs no additional third-party payment. [Home 2] would incur a £283 third-party top up payment weekly”.
19. Mrs X contacted the Council at the start of July 2019. She said they wanted to decline Home 1 because of its ratings. She said they had viewed Home 2 and felt it was acceptable but wanted to know if there were other options available. The Council said there were not. It discussed what would happen if the family identified a home that was not part of the Council’s brokerage search. The case records show the Council discussed funding, the client contribution and top-up costs.
20. The following day Mrs X contacted the Council and said Mrs Y did not think the top-up fees for Home 2 were sustainable. The Council agreed to start the assessment for Home 1.
21. The next day, Mrs X contacted the Council again. She said Mrs Y preferred Home 2, and that she was happy to pay the top-up. The Council confirmed it would ask Home 2 to assess Mr Y and send out the top-up paperwork.
22. Mr Y moved into Home 2. Mrs Y completed the top-up payment application form the following day. She included both her own and Mr Y’s income. In the completed application form she said she had a weekly disposable income of £332.71 after living costs. The form also contained a signed written agreement between Mrs Y and the Council setting out:
• Home 2’s weekly care fees of £700;
• the Council’s weekly contribution of £467- including the resident’s assessed contribution; and
• the third-party weekly contribution of £233.
23. The form stated that if the third-party could not pay the top-up the Council may not continue to fund the placement.
24. Mrs X was granted power of attorney the following week. She completed Mr Y’s financial assessment and returned it to the Council. The Council wrote to Mrs X and said Mr Y’s client care contributions were £239 weekly.
25. At the start of September 2019, Mrs X contacted the Council. She said they had received two sets of invoices for Mr Y’s care. The Council explained that one invoice was for the client contribution, the other was for the top-up.
26. Mrs X contacted the Council further during October 2019. She said they had not realised client contributions were different to top-ups. She said Mrs Y had put the joint income on the top-up form. The Council explained that if Mrs Y could not afford the top-up, they needed to give four weeks-notice so the Council could look at different placements. Mrs X complained to the Council.
27. That month the Council contacted Mrs Y because she had not paid Mr Y’s top-up.
28. The Council responded to Mrs X in December 2019. It did not uphold the complaint. It said it had provided Mrs X and Mrs Y information about financial assessments, client contributions and top-ups. It said if Mrs Y had put the correct figures on the top-up form, the Council would not have progressed the placement.

Information provided by the Council

29. The Council has confirmed Mrs Y is meant to pay the top-ups directly to the Council, however, she has not made any third-party payments since July 2019. There is currently an outstanding balance of £13,880 for Mr Y’s care.

My findings

30. Although Home 1 was further from Mrs Y’s home address than Home 2, neither Mrs X or Mrs Y raised that as a concern with the Council at the time. The case records indicate the reason for turning down the place at Home 1 was because of poor inspection ratings and because Home 2 had fewer residents. The Council must offer at least one residential care choice within personal budget. Home 1 was within Mr Y’s personal budget. Therefore, the Council was not at fault.
31. The case records show:
• The Council spoke to Mrs X and Mrs Y about the Council’s funding streams, financial assessments, client contributions and top-ups.
• The Council differentiated between client contributions and third-party top-ups in its email to Mrs X about residential home options and costs;
• Mrs X signed to confirm the Council had provided information about financial assessments.
• Mrs Y signed a written agreement with the Council about third-party top-up costs. That agreement specified top-ups were separate from client contributions.
32. The Council provided sufficient information and advice about top-ups and financial assessments. The Council was not at fault.
33. The Council must ensure the person paying the top up is ‘willing and able’ to meet the additional costs. Mrs X contacted the Council at the start of July 2019, stating her mother was ‘willing’ to pay the top up. However, Mrs Y did not complete the top-up application form until after Mr Y moved into Home 2. Therefore, the Council did not consider whether she was ‘able’ to meet the cost of the top-up before the placement. That was fault. However, I cannot say that fault caused Mrs Y a significant injustice. That is because the information on the application form suggested Mrs Y could meet the top up. Had the Council received the completed form before Mr Y moved, it is unlikely to have impacted upon its decision making. The fact that Mrs Y completed the form incorrectly was not the fault of the Council.
34. The Guidance states councils should maintain oversight of top-up fees and review arrangements as necessary. When Mrs X told the Council they could not afford the top up payments the Council set out that if Mrs Y could not pay the top-up they needed to give four weeks’ notice for termination of the top-up contract. This was appropriate and in line with the signed agreement. Mrs X and Mrs Y did not give notice to the Council and have not paid any of the top-ups due.
35. The Council has failed to take any action about Mrs Y not paying the third-party top-up. Further, it failed to complete an annual review of the third-party agreement, which was due in July 2020. That was fault.
36. That fault meant the Council has delayed in making a decision about whether it should make the third-party top-ups itself, or following a needs assessment of Mr X, transfer him to a cheaper home at the first possible opportunity.

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Agreed Actions

37. The Council has agreed to waive any outstanding top-up debt from July 2020 onwards when it should have reviewed the third-party agreement.
38. In addition, within one month of my final decision, the Council has agreed to:
• Tell Mrs Y if it intends to make the top-up payment, or whether it plans to transfer Mr Y to a different care home, following a further assessment of needs.
• Remind staff of the need to complete annual reviews of third-party agreements.

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Final Decision

39. There was no fault in how the Council provided information about third-party top-ups. However, it failed to check if the third-party could afford the top-ups before it arranged the care placement. The Council was also at fault for not completing an annual review of the third-party agreement. The Council has agreed to my recommendations therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman