The Ombudsman's final decision:
Summary: The Ombudsman has found evidence of fault by the Council in this complaint regarding its handling of third party top-ups towards the complainant’s mother’s care fees. He recommended the Council apologises to the complainant and pay her £150 in recognition of the injustice caused to her. The Council agreed.
- Mrs X complains on her own behalf and that of her mother, Mrs Y. She says the Council says is at fault in how it has handled third party top-ups for Mrs Y’s care. In particular she says the Council is at fault:
- for increasing her third party top-up payments half way through the financial year;
- for not providing her with a breakdown of how the charge for Mrs Y’s care had been apportioned;
- for failing to correctly set up a Direct Debit for her payments in February 2017; and
- for failing to reply to her complaints about this matter in a timely manner.
Mrs X says these issues have caused both her and Mrs Y distress.
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’. (Local Government Act 1974, sections 24A(6) and 34B(8), 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
- As part of my investigation I considered the details of Mrs X’s complaint and information she provided. I made enquiries of the Council and considered its response and information it provided. I set out my initial thoughts on the complaint in a draft decision statement and I considered Mrs X’s comments in response.
What I found
- Councils must carry out a financial assessment of people who funded their own residential care placement once they are likely to fall below the capital limit of £14,250 and £23,250.
- The financial assessment, along with a care assessment, helps the council determine how much it will pay towards the person’s care and how much the person will have to contribute (known as the assessed contribution).
- This level of funding the council will provide is called the banding rate. If the person has chosen a residential placement which costs more than the banding rate, they can only be placed in that home if the shortfall between the cost of the placement and the banding rate can be meet by a third party. This is known as a third party top-up. The person receiving the care cannot pay the shortfall themselves.
- The Council requires a person paying a third party top-up to sign an agreement to make regular contributions towards the care of the recipient.
- A clause in the agreement states “The Third Party agrees that the sufficiency of his/her contribution will be assessed at 12 month intervals by the County Council and that after such assessment the amount of the contribution may need to be increased. The Council agrees to provide the Third Party in each such case with a written statement showing how payment of the charges of the Home is to be apportioned. The Council agrees to give the Third Party at least four weeks written notice of any increase in contribution.”
- Mrs X ‘s mother receives care in a residential care home. She is in her late nineties and is hard of hearing and blind. Mrs X also has health concerns and is registered disabled.
- For a number of years Mrs X has been paying a third party top-up for Mrs Y’s care.
- During the financial year 2015/16 Mrs X set up a Discretionary Trust Fund to help fund Mrs Y’s care in case she died before her.
- In February 2016 Mrs Y’s care home wrote to the Council advising it of a 5% increase in care home fees for the coming financial year. It would appear this was not acted upon by the Council until June.
- In June 2016 the Council wrote to Mrs X saying that from April that year the weekly charge for Mrs Y’s care would be £561.20 per week. It advised that the cost would be apportioned with the Council paying £265.54, Mrs Y’s assessed contribution being £154.48 and Mrs X’s third party top-up being £141.18.
- The above figures were confirmed in a letter from the Council that Mrs X received in early August. The letter stipulated that Mrs X’s third party top-up would be £154.48 from April 2016 onwards.
- In October the Council wrote to Mrs X advising her that her third party top-up would need to increase from November onwards. The new weekly amount would be £168.92. This was because of the rise in the care home fees which was notified to the Council by the care home in April.
- Although the actual weekly increase was £7.22, the Council increased Mrs X’s contribution to £14.44. This was to cover the arrears which had occurred because the Council did not implement the increase until October.
- Mrs X contacted the Council about the matter as she was unhappy that her payments had increased within the 12-month period. She said this was contrary to the agreement she signed in June. Mrs X was promised a call back from a senior officer to discuss her concerns.
- A call was not forthcoming and Mrs X had to chase the matter up before speaking with the appropriate officer. The officer told Mrs X that if she did not sign the revised agreement then it may result in Mrs Y being moved to an alternative suitable home with fees that would not require a third party top-up.
- Unhappy with the Council’s view Mrs X wrote to the Council again pointing out the anomalies with the Council’s position and the agreement she signed.
- Mrs X did not receive a reply and matters remain unresolved despite her speaking with various members of staff.
- In January 2017 the Council sent Mrs X a letter giving her deadline to sign the revised agreement with the third party top-up now being £202.18 to account for arrears incurred during this further delay.
- Mrs X signed the agreement but added a comments that she had done so under duress. For this reason the Council could not accept the agreement. It appears the Council did not notify Mrs X about this as she did not learn until March that another agreement needed to be signed.
- Unhappy with matters Mrs X complained to the Council in February. I understand consideration of the complaint was delayed while the Council waited for confirmation that Mrs X had power of attorney (POA) for Mrs Y.
- Once the POA has been received the Council should have begun its consideration of Mrs X’s complaint. However this did not happen and she had to write again in May chasing up a reply. Mrs X also raised concerns that despite signing the agreement in January the third party top-up deductions from her account were still being taken at the old rate. I understand this matter was only resolved after Mrs X signed yet a further agreement.
- Mrs X had to write to the Council again in July as she had still not received a reply to her complaint and various other communications.
- The Council replied in August. It set out its view that the agreement did not preclude increases in third party top-ups within the 12 months period that the agreement relates to.
- Mrs X remains unhappy with the Council’s handling of this matter.
The Council is at fault for increase Mrs X’s third party top-up payments after its letter of June 2016
- The Council was advised by Mrs Y’s care home that it would be increasing the amount charged for her care. However this was not taken into account by the Council when it sent Mrs X its letter in June. The Council appears to have only noted this when the care home contacted it about arrears on Mrs Y’s account. This is fault by the Council as it should have acted upon the care home’s earlier communication before writing to Mrs X.
- For this reason Mrs X was led to believe that her third party top-up fees would be £154.48 when in reality they should have been £161.70 per week for the period from June to October. While I recognise the difference in the two amounts is not substantial, I am aware that finances are often strained for pensioners and accordingly the unexpected increase may have had a significant impact on Mrs X’s finances.
- Furthermore Mrs X has been asked to pay higher weekly top-up fees from February onwards because of the arrears that have accrued. With the arrears added Mrs X is paying an additional £14.44 per week more than set out in the Council’s June letter.
- Mrs X alleges the Council has raised the third party top-up fees during the 12 month period. While I appreciate that the fees were higher than initially communicated in its letter of June 2016 the fees have actually only be raised once in line with the care home’s 5% increase for the financial year 2016/17. I therefore do not conclude the fees were raised within this period but I do find that the Council misled Mrs X about what her third party top-up fees would be for that period.
- The agreement signed by Mrs X regarding her third party contributions includes a clause which says that she agrees to having her contribution assessed at 12 monthly intervals and that the contribution may increase following any such assessment. For this reason Mrs X contends the Council has acted contrary to this clause when it told her contributions would be higher than set out in its June letter. I am afraid that I do not agree. This is because the letter of June did not say that the amount quoted was final and I note that Mrs X corresponded with the Council seeking clarity on this very matter. Furthermore I have not seen any evidence that Mrs X had actually signed a contract at this time.
- I note that Mrs X contends that the Council’s actions have taken away the benefit of the trust she set up for Mrs Y. For this reason she says the Council should pay her compensation for the costs involved in setting it up. I do not agree. It was Mrs X’s choice to set up the trust and she did not do so at the Council’s recommendation. Moreover, for the reasons set out above, Mrs X has not been asked by the Council to make two increased payments towards Mrs Y’s care in one financial year. As Mrs X had contributed towards Mrs Y’s care for some time, she was aware that payments would likely increase each year. For these reasons I cannot conclude the Council should make the compensation payment Mrs X requests.
The Council is at fault for not providing Mrs X with a breakdown of how the charge for Mrs Y’s care had been apportioned
- Mrs X says the Council has not provided her with a breakdown of how the cost of Mrs Y’s care has been apportioned. While I recognise that such a breakdown was sent with the Council’s letter of June, I have not seen any evidence that any new breakdown was sent after it realised the June figure was inaccurate. I agree with Mrs X’s contention that the Council should have done so. The failure to do so has caused Mrs X concern amount the amount she is being asked to pay.
The Council failed to correctly set up a Direct Debit for Mrs X’s payments in February 2017
- It would appear that the Council failed to tell Mrs X that the agreement she signed in January could not be acted upon because of comments she had added to it. It would seem this was not followed up by the Council until Mrs X noticed in March. While this did not impact on Mrs Y’s care, I consider that finding out about this matter caused Mrs X consternation as she was worried Mrs Y might be asked to leave on account of the delay.
The Council did not reply to Mrs X’s complaints about this matter in a timely manner.
- Mrs X complained to the Council in February and her complaint was not substantively responded to until August. This is significantly longer than a reply should take even when taking into account the delay caused by the need to clarify if Mrs X held POA for Mrs Y. The Council says the delay was in part due to the officer dealing with the matter being on sick leave and then leaving. The Council should have practices in place to deal with such occurrences. It could also have updated Mrs X about the delay so she did not have to chase the matter up with the Council herself. I find fault by the Council in how it handled her complaints.
- I have identified fault by the Council because it did not take into account the notification from Mrs Y’s care home about the increase to her care fees when it wrote to Mrs X in June. This raised her expectations that the third party top-up fee would be lower than it was causing her concern about her finances.
- I also found fault because the Council did not provide a breakdown of how Mrs Y’s care fees were being apportioned followed the revised figure issued to Mrs X in October. This caused Mrs X uncertainty about how Mrs Y’s fees were being apportioned. It also did not answer her complaints in a timely manner which put Mrs X to avoidable time and trouble in pursuing a reply and caused her consternation as a result of not telling her that the agreement signed in January had not been accepted.
- In recognition of the above injustice I recommended the Council apologises to Mrs X and provides her with a breakdown of how Mrs Y’s care costs were apportioned for the period in question. I also recommended it pays her £150 in recognition of the time and trouble and distress caused by the Council’s actions. The Council agreed.
- I have ended my investigation of this complaint as the Council has agreed to remedy the injustice caused to Mrs X as a result of the fault I identified.
Investigator's decision on behalf of the Ombudsman