The Ombudsman's final decision:
Summary: Miss X and Mrs Z complain about the way the Council dealt with top up fees for the late Mrs Y, and how it dealt with their complaints. The Ombudsman found the Council was not at fault in this. However, it was at fault when it sent invoices to the late Mr Y after his death, which caused distress. It will apologise and waive £150 of the outstanding fees.
- The complainants, whom I shall refer to as Miss X and Mrs Z, complain that the Council:
- wrongly charged her parents (the late Mr and Mrs Y) top up fees for Mrs Y’s residential care from December 2014;
- failed to properly deal with her queries and complaint about the top up fees; and
- sent demands for payment addressed to Mr Y after he died and it had been informed of this.
The Ombudsman’s role and powers
- 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 from the Complainant and from the Council.
- I will send both parties a copy of my draft decision for comment and will take account of the comments I receive in response.
What I found
- 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.
- 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 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.
Top up payment
- A top up fee is the difference between what the Council will pay (the personal budget), and the fee charged by the care provider.
- 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.
- 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.
Charging for permanent residential care
- 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 must 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.
- In December 2014, Mrs Y was admitted to a care home from hospital; her savings were above the financial threshold of £23,250.
- On 2 December, Council records note that Mrs Y was self-funding and family did not want help to identify a care home but would do that themselves. It provided the family with information about the financial implications of moving into residential care, and details of third party top ups.
- On 31 December, Miss X went to the Council to get a third party form; she said Mr Y had agreed to pay a top up of £50 per week. The council gave her another copy of the financial implications of moving into residential care information. Mr Y signed the agreement the same day.
- When Mr Y died in November 2015, their property could no longer be disregarded and this took Mrs Y over the threshold. Third party payments no longer applied as Mrs Y was now self funding. The Council discussed a deferred payments arrangement but the family wanted to sell the property. The Council advised that Mrs Y would have to fund her own care until her capital fell below the threshold again. It advised of the possibility of a deferred payment in the future.
- When the Council heard that Mr Y had died, it did not know who it should send correspondence to. It says it should have stopped the invoices until it knew where to send them but it didn’t. Because of this error it is willing to waive part of the £1671.43 which remains outstanding.
- In April 2016, the Council completed a financial assessment and found Mrs Y’s savings were close to the financial threshold. The family did not want a charge placed on the property so agreed that Mrs Y would pay the full costs of her placement. The Council advised that she needed to be reassessed once her capital fell below the threshold again.
- On 27 May 2016, the Council advised Mrs Z that, as Mrs Y had capital above the threshold, she could pay the part of the fee which had previously been a top up herself. She did not need a third party to pay it.
Was there fault which caused injustice?
- I am satisfied the Council provided enough information to the family about the implications of moving into residential care. It was right that, having chosen a care home costing more than the Council would pay, the family needed to arrange a third party top up.
- When Mr Y died, the Council could no longer disregard the property so Mrs Y became self funding and responsible for paying the full cost of her care. The part of the fee that had been known as a third party top up, was no longer payable by a third party but by Mrs Y. The Council may not pay towards the care of someone who has capital above the threshold. I found no fault here.
- I also found no fault in the way the Council dealt Miss X and Mrs Z’s complaints.
- The Council was at fault when it sent demands for payment to Mr Y after it had been told he had died. This caused the family avoidable and significant distress.
- To put right the avoidable and significant distress the Council caused the family by continuing to invoice Mr Y after his death, I recommended the Council:
- Apologise to Miss X and Mrs Z.
- Waive £150 of the outstanding balance.
- Submit a copy of the letter and confirmation of the waiver to the Ombudsman.
- Complete these recommendations within one month of the final decision.
- I have completed my investigation and uphold Miss X and Mrs Z’s complaint that the Council sent demands for payment addressed to Mr Y after he died and it had been informed of this.
- I have not upheld their complaints that the Council:
- wrongly charged their parents (Mr and Mrs Y) top up fees for Mrs Y’s residential care from December 2014; and
- failed to properly deal with her queries and complaint about the top up fees.
Investigator's decision on behalf of the Ombudsman