Lancashire County Council (17 006 095)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 27 Jul 2018

The Ombudsman's final decision:

Summary: Mrs B complains that the Council was wrong to charge her a third-party top-up fee for her husband’s care in the residential care home in which he lives. The Ombudsman has found that the Council was not entitled to charge Mrs B a third-party top-up because there were no other options available at the time at a lower charge. The Council has agreed to reimburse Mrs B’s top-up fees, pay her interest and a remedy for her distress, and review her husband’s placement. The Council has also revised its third-party agreement and will ensure that social care teams are fully aware of the procedures and statutory guidance relating to third-party agreements. The Ombudsman considers this a suitable response to the injustice caused to Mrs B.

The complaint

  1. Mrs B complains that the Council has wrongly charged her a third-party top-up fee for her husband's residential care placement. She says:
    • the Council pressured her into signing the third-party top-up agreement to start the assessment process;
    • the Council gave her no choice of care home when her husband moved; and
    • the present home is the only home suitable to meet her husband’s needs.

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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 have considered Mrs B’s written complaint and supporting papers and spoken with her. I have written to the Council and considered its responses. I have considered the Care and Support Statutory Guidance. I have also sent Mrs B and the Council a draft decision and invited their comments.

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What I found

  1. 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 a council arranges a care home placement, it must follow these rules when undertaking a financial assessment to decide how much a person must pay towards the costs of their residential care.

Top-up payments

  1. The care and support planning process will identify how best to meet a person’s needs. As part of that, a 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. A 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.
  2. 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.
  3. 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 resident can find someone else (a “third party”) to pay the top-up; or
    • the resident is willing to pay the top-up fee himself and enters into a deferred payment scheme with the council.
  4. In such circumstances, the council needs to ensure that the person paying the top-up has a written agreement with the council and can meet the extra costs for the likely duration of the agreement. The Guidance sets out a council’s duties in relation to top-up agreements:

“The local authority must ensure that the person paying the “top-up” is willing and able to meet the additional cost for the likely duration of the arrangement, recognising that this may be for some time into the future… The agreement must, as a minimum, include the following:

    • The additional amount to be paid;
    • The amount specified in the person’s personal budget;
    • The frequency of the payments;
    • To whom the payments are to be made;
    • Provisions for reviewing the agreement;
    • A statement on the consequences of ceasing to make payments;
    • A statement on the effect of any increases in charges that a provider may make;
    • A statement on the effect of any changes in the financial circumstances of the person paying the “top-up”.”

What happened

  1. Mr and Mrs B are retired. They jointly own their own home, which is valued at around £250,000, but have an outstanding mortgage of around £100,000, which is repayable in around 3 years’ time.
  2. Mr B has Huntingdon’s disease, which has had a significant impact on his cognition and has resulted in him displaying aggressive and challenging behaviour, together with physical symptoms including involuntary movement and incontinence.
  3. Mrs B has rheumatoid arthritis and has found it increasingly hard to care for her husband. In October 2015, she contacted the Council about a short-term placement for her husband. She said that they would be self-funding the care, but was concerned about the cost of the placement.
  4. The Council’s Care Navigator looked into potential placements and identified nine care homes which could potentially provide care. The care home with the lowest charges, Care Home 1, had a weekly rate of £458. The next lowest charge quoted was £569 per week.
  5. The following month, Mrs B emailed the Care Navigator. She thanked her for her help but said she was not yet ready for her husband to enter a care home, despite the difficulty in looking after him. Mrs B had applied for Continuing Healthcare (CHC) financing, whereby the NHS would pay for Mr B’s care. But the CHC Panel turned down her request. The Care Navigator provided details of a further home which could potentially provide respite care at a cost of £550 per week, subject to availability.
  6. On 9 December, Mrs B was assaulted by her husband. The Mental Health Trust then arranged and funded an emergency admission to Care Home 2 with a two-week placement to assess his needs.
  7. The next day, Mrs B contacted the Care Navigation Team. She explained the circumstances behind her husband’s admission to Care Home 2. She asked for help in finding an alternative placement for her husband, as she understood that Care Home 2 may not be able to accommodate him due to capacity and she wanted to look at alternatives.
  8. The Care Navigator found three homes that could meet Mr B’s needs and had availability, with the lowest charge being £600 per week.
  9. On 11 December, Mr B’s Social Worker called Care Home 1. Her notes record:

“spoke to deputy manager… who explains that Mrs [B] has been in touch with the care home this morning and has explained that she is looking for a placement for her husband. Mrs [B] has described Mr [B] with aggressive issues therefore [the home] have declined the placement… [the deputy manager] has agreed to look at the assessment following Mr [B’s] two week period of health funded respite at Care Home 2.”

  1. There is no record of any follow-up discussion with Care Home 1.
  2. On 21 December, Mr B’s Social Worker visited him at Care Home 2. She undertook an assessment of Mr B and decided that he had capacity to make decisions about his care. Mrs B had asked her husband to extend his stay for a further two weeks until 5 January 2016, and he had agreed to this. The notes record that all parties agreed with the further short-term placement, that Mr and Mrs B had discussed and agreed the financial implications, and that the Social Worker would make a follow up visit before Mr B was discharged home.
  3. The Social Worker noted:

“I feel that if he returns home now there will be problems, as [Mr B’s] wife claims she is not ready, finance has always been an issue for [Mr B] and his wife, however she is aware that her husband will be financially assessed and will need to pay a contribution, also she will need to pay the 3rd party, both of which she has agreed to.”

  1. The Council sent Mrs B a copy of the third-party top-up agreement to sign, based on a rate of £52 per week. When added to the Council’s Elderly Mental Dementia (EMD) rate of £445 per week this met Care Home 2’s weekly charge of £497. (Soon after, this increased to £453 plus a £52.50 top-up.)
  2. On 5 January 2016, the Social Worker reviewed Mr B’s placement prior to a best interests meeting. She noted that Mr B was no longer asking to return home. She recorded that:

“A review meeting and best interest meeting was also held, and it was decided that it is in Mr [B’s] best interest that he remains in his current placement on a longer term basis. Mrs [B] who has [power of attorney] for both health and well being and finance also feels that this is the best option.”

  1. On 6 January, Mrs B signed the top-up agreement.
  2. The Council later undertook a financial assessment (dated 1 March 2016). This noted that:
    • Mrs B would use the occupational pension disregard to make payments on her mortgage of around £100,000.
    • Mrs B was in now receiving guarantee pension credit, and had been advised to apply for Council Tax Benefit.
    • Mrs B was advised that were she to sell the property to clear the mortgage, any “new property would need to be bought in joint names and that any funds released from the sale would be joint funds however due to amount owing on mortgage would be unlikely if funds would be released”.
  3. On 7 August, Mrs B signed a further top-up agreement at an increased rate of £60.00 per week.
  4. On 21 November, Age UK wrote to the Council explaining that Mrs B believed the present home to be essential to meet her husband’s needs and that no other home could meet his needs. The letter also explained that the Council had not given Mrs B a choice of homes and, if no other places had been available, then the Council must pay the top-up charge.
  5. In February 2017, Mrs B contacted the Council and explained that she was struggling to pay the top-ups and asking why there had been no response to the letter from Age UK.
  6. The Social Worker met with Mrs B and a financial assessment and review were undertaken over the following weeks. Care Home 2 was asked if it could reduce the top-up fee, but explained that this covered a full-time activities coordinator, toiletries and staff for residents’ outings.
  7. The Council responded to Mrs B’s complaint in May 2017. It said that Mrs B had signed the agreements in December 2015 and March 2016, that there was no evidence of any pressure being applied or any concerns or disagreement being raised. The Council said that an alternative placement had been suggested but declined. It advised Mrs B that her husband might have to move if she could not afford to pay the top-up.
  8. On 11 July 2017, Mrs B signed a further top-up agreement at an increased rate of £70.00 per week. The top-up increased again earlier this year.

My assessment

Pressure to sign the top-up agreement

  1. Mrs B feels that the Council pressured her into signing the top-up agreement.
  2. I note that a letter from the Leader of the Carer’s Group states:

“I can confirm (please see my attached notes) that at this meeting Mrs [B] was informed that in order to start the financial assessment process she had to sign the 3rd party agreement form. It was made clear that not to sign this agreement would delay the process for the assessment, something she was anxious to avoid, and thus I would support her belief pressure was put on her to sign this form at this meeting.”

  1. Also, a letter from the Care Home (having checked the meeting notes) says:

“it was advised by the social worker for [Mr B] to stay within [Care Home 2] you had to ensure that the agreement was completed between yourself and Lancashire Council in relation to third party top-up”.

  1. I appreciate that social workers are under pressure to manage competing priorities. Moreover, if the Social Worker considered the choice of Care Home 2 to be Mr and Mrs B’s preference, I do not consider there was fault in her advising Mrs B that she would need to sign the top-up agreement to keep a place at Care Home 2. But it is important that Mrs B had sufficient information to make an informed decision when signing the top-up agreement. This was not the case.
  2. The Council has explained that social workers would not in any circumstances wish to apply pressure on anyone. But it apologises to Mrs B for not exploring other options without a top-up but instead requesting an agreement to be signed on transferring the placement at from short-term care to long-term care.

Most suitable home / availability of an alternative

  1. Mrs B considers that she should not have to pay a top-up fee. She says that Care Home 2 was the most suitable for her husband and the Council had offered no alternative at a lower weekly rate.
  2. The Council referred to Care Home 2 as being Mr and Mrs B’s preference. But the Social Worker said in her notes of the review meeting on 5 January 2016 that “It was decided that it is in Mr [B’s] best interest that he remains in his current placement on a longer term basis” and that “Mrs [B]… also feels that this is the best option”. This suggests to me that it was the professionals involved in Mr B’s care who considered that it was in Mr B’s best interest to remain in the home, and that Mrs B concurred with this view.
  3. As regards the availability of alternative placements, the Council had suggested homes to Mrs B both before and after her husband was admitted to Care Home 2. It considered that there were alternative homes available and that Mrs B made an informed choice for her husband to remain there. The Council says that Mrs B contacted Care Home 1 initially, but did not follow up on this.
  4. Of the care homes that the Council contacted about availability, the only care home with a lower weekly rate than Care Home 2 (and within the Council’s EMD rate) was Care Home 1. But Mrs B had already contacted Care Home 1, and the Deputy Manager of the home confirmed to the Council that he had told Mrs B that the care home could not admit Mr B. Moreover, there is no evidence that the Social Worker contacted Care Home 1, as she said she would after undertaking an assessment of Mr B’s needs.
  5. The Care Act Guidance states that:

“A person’s ability to make an informed choice is an important element of the care and support system.”

and

“The local authority therefore must ensure that at least one option is available that is affordable within a person’s personal budget.”

  1. The Ombudsman considers that for families to make an informed choice of care homes, councils must demonstrate that an alternative care home is available at a rate within the user’s personal budget. If they do not do so, then we do not consider that they are entitled to charge top-up fees.
  2. In this case, there is no evidence that there was a place available for Mr B at an alternative care home within Mr B’s personal budget, or that Mr and Mrs B were made aware that there was such an option. Rather, as far as Mr and Mrs B were aware, Care Home 2 was the home with the lowest charge that was available to them. The Ombudsman has therefore asked the Council to reimburse the top-up fees that Mrs B has paid to date.
  3. On review of the evidence, the Council accepts that, although there were discussions and information was provided to Mrs B about top-ups, after Mr B moved into the Care Home 2 “other options were not fully made available to Mrs [B] for a long term placement without a third party top up”. The Council accepts that, until such options were available to Mrs B, as well as confirmation that it was also deemed appropriate to be able to move Mr B to an alternative placement, it should not have requested a top-up from Mrs B.
  4. The Council has expressed its sincere apologies for this and will reimburse the top-up fees. It will robustly share this learning with social care teams. It will also arrange for a social worker to contact Mrs B within four weeks to confirm a mutually convenient date to review Mr B’s placement.

Advice and information provided by the Council about the top-up fee / consideration of Mrs B’s ability to pay

  1. The Care Act Guidance states that: “Having chosen a setting that is more expensive, based on good information and advice, the local authority should ensure that the person understands the full implications of this choice, remembering that this is often a point of crisis.”
  2. The Council has explained that it does not complete a financial assessment / affordability check but does ask the third-party payer to sign an agreement to state they agree to pay the top-up. It discussed the top-up fees with Mrs B on several occasions. It has explained that Mrs B was aware that she would have to pay the fees and signed agreements indicating her willingness to do so.
  3. The Council clearly discussed the top-up charges with Mrs B on several occasions. However, as indicated above, I do not consider that the Council complied with the Care Act Guidance as it did not offer Mrs B an alternative placement within the Mr B’s personal budget.
  4. Moreover, the Care Act Guidance sets several minimum requirements for information to be provided in top-up agreements. These include:
    • Provisions for reviewing the agreement, including how the arrangements will be reviewed, what may trigger a review, and circumstances when any party can request a review.
    • A statement on the effect of any increases in charges that a provider may make clearly setting out t how any increased costs may be shared.
    • A statement on the effect of any changes in the financial circumstances of the person paying the top-up.
  5. I do not consider that the top-up agreement that Mrs B signed complies with the Guidance. So, I also do not consider that she was able to make an informed choice in this regard.
  6. Lastly, I note that the Council also later undertook a financial assessment in relation to Mr B’s finances (dated 1 March 2016). This noted that:
    • Mrs B had a £100,000 mortgage due in three years, which she should would use the occupational pension disregard to pay.
    • Mrs B was a pensioner, in receipt of guarantee pension credit, and was advised to apply for Council Tax Benefit due to her low income.
  7. I appreciate that Mrs B signed the top-up agreement prior to her husband’s financial assessment. But, having established this information about her finances, it is unclear to me why this did not lead the Council to question the long-term sustainability of the top-up. It also calls into question the adequacy of the initial discussions with Mrs B about her ability to pay the top-up in the long term.
  8. The Council has explained that it has now revised its third-party agreement to more clearly state the effect any changes would or could potentially have on a third party should circumstances change. Any time the third-party top-up amount changes the Council sends out a new agreement form for the third-party payer to sign. It considers this it is compliant with the Care Act. The Council will ensure that social care teams are fully aware of the correct procedures and guidance around third-party arrangements.

Response to Age UK letter

  1. Mrs B has also expressed concern that the Council failed to respond in a timely manner to the letter from Age UK on her behalf.
  2. The Council apologises that, despite Mrs B’s efforts to advise of the letter from Age UK, this was not located until recently. The Council also accepts that it was not an adequate response to Mrs B to say that it was unable to comment on the letter requesting financial support.

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Agreed action

  1. The Council has agreed, as a personal remedy to Mrs B, to:
    • reimburse the payments Mrs B made under the third-party top-up agreement from 23 December 2015 to the present
    • pay Mrs B interest on the backdated payments based on the increase in the Retail Price Index;
    • pay Mrs B £200 as a remedy for the distress caused to her; and
    • contact Mrs B within four weeks to review Mr B’s placement.
  2. In terms of service improvements, the Council:
    • has revised its third-party agreement form to ensure that it is Care Act complaint; and
    • will ensure that social care teams are fully aware of the correct procedures and guidance around third-party arrangements.

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Final decision

  1. I have closed my investigation into Mrs B’s complaint because the steps that the Council has agreed are a suitable remedy for the injustice caused to Mrs B.

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Investigator's decision on behalf of the Ombudsman

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