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Dudley Metropolitan Borough Council (17 010 454)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 29 Mar 2018

The Ombudsman's final decision:

Summary: Mr F complains about the top-up payments for his mother-in-law’s residential care. The Ombudsman found fault by the Council in not keeping records and not making a written agreement. The Council has agreed to apologise and make a payment to remedy the injustice caused.

The complaint

  1. The complainant, whom I will call Mr F, complains about the top-ups for his mother-in-law, Mrs G’s, residential care. In particular he complains the agreement to pay the top-up was made by his late father-in-law, not him.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. 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 spoke to Mr F about his complaint and considered the Council’s response to my enquiries and:
    • Charging for Residential Accommodation Guide 2011 (“CRAG”)
    • Department of Health's Local Authority Circular (2004) 20 (“the Circular”)
    • The Care Act 2014
    • The Care and Support Statutory Guidance 2014 (“the Guidance”)
    • The (Choice of Accommodation) Regulations 2014 (SI 2014/2670)
    • Care and Support (Charging and Assessment of Resources) Regulations 2014 (SI 2014/2672)
  2. I sent Mr F and the Council my draft decision and considered their comments.

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What I found

  1. Councils have a duty to assess residents’ care and support needs. If the assessment finds the person needs residential care the council may arrange this.
  2. When a council arranges a care home placement, it must carry out a financial assessment of people who have assets less than the upper capital limit (£23,250). The assessment determines how much they can pay towards the cost of their care. People who have over the upper capital limit are expected to pay the full cost and are known as self-funders.

Top-up payments

  1. Councils set a rate they usually expect to pay for a care home placement (the “usual cost”). The council must ensure that at least one choice of care home is available at this usual cost.
  2. In certain circumstances, councils can place someone in a care home which is more expensive than the usual cost, provided a resident or a third party is able and willing to make up the difference (to ‘top-up’). Councils must not ask for top-up payments if there is no alternative suitable care home available at the council's usual cost.
  3. Some of the events covered in this complaint took place before 1 April 2015. Before 1 April 2015 CRAG and the Circular set out the charging rules for residential care and top-up payments. The law and guidance changed on 1 April 2015 when the Care Act 2014 came into force.

Guidance on third party payments for residential care before 1 April 2015

  1. CRAG says councils are wholly responsible to a care provider for the full amount of the contracted . This includes where a service user or third party pays his or her contribution direct to the care provider.
  2. The Circular says councils should ensure that individuals are informed they have a choice of accommodation and a written record of the conversation should be kept.
  3. When a top-up is to be paid, councils should also assure themselves that third parties will have the resources to continue to make top-ups and "should make clear to residents and third parties, in writing, the basis on which arrangements are to be made…". This should include agreeing that:
    • the top-up will be reviewed on a regular basis
    • a rise in the care home's fees will not automatically be shared equally between the council, resident (if making a top-up), and third party
    • failure to keep up top-up payments may result in the resident having to move unless their needs can only be met in the current accommodation

Guidance on third party payments for residential care since 1 April 2015

  1. The Care Act 2014 says everyone whose needs are met by the council must receive a personal budget as part of their care and support plan. The personal budget is the cost to the council of meeting the person's needs which the council chooses or is required to meet.
  2. The council must ensure that at least one choice of care home is available that is affordable within a person's personal budget. 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 himself.
  3. 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.
  4. The Guidance says councils are responsible for the total cost of a placement, including the top-up. It cautions against the third party paying the top-up directly to the care home and recommends the person pays the top-up to the council.

What happened

  1. Mrs G’s husband went into a care home in 2009. He was a self-funder. Mrs F (Mr and Mrs G’s daughter) and Mr F were given power of attorney for Mr G’s affairs.
  2. In 2013 Mrs G was assessed by the Council as needing residential care. She had assets below the upper capital limit and had to pay a contribution towards the cost of her care. The family chose Care Home X, which was more expensive than the Council’s usual cost. The Council says it has no records of discussions about the alternative care homes available.
  3. The contract with the care home was signed by Mrs F. Mr F says this was because she was acting as power of attorney for her father and the payments came from his account. The contract says Mrs F would pay a £20 per week top-up. The payments were made directly to Care Home X. There was no written agreement with the Council. The Council says it has no records of any discussion about whether Mrs F or Mr G could afford the top-ups in the long term and that at the time it had no formal process in place to assess affordability.
  4. Mr and Mrs F arranged for Mr G to also move into Care Home X a few months later. Once his assets fell below the upper limit, the Council funded his care with a contribution from him and Mrs F paid a top-up .
  5. Mr and Mrs G’s home, which was in Mr G’s name, was sold. Mr G again became a self-funder. Mr F says the funds for Mrs G’s top-up came from the sale of the property.
  6. In 2015 Mr G sadly died. There are no records of any discussions with the Council or Care Home X about Mrs G’s top-up arrangement and no written agreement was made between the Council and Mr or Mrs F. Mrs G’s top-up continued to be paid. Mr F says the funds came from the remainder of Mr G’s estate which had gone to Mrs G.
  7. In February 2017 Care Home X notified Mrs F of a price increase with effect from 1 April 2017, which would double the top-up to £40 per week.
  8. Mr F said they could not afford to pay the new top-up . He sought advice from a charity and met with a social worker. He asked the Council to pay the top-up . It refused. The social worker emailed Mr F about other care homes with top-ups ranging from zero to £36 per week. Mr F said he did not want Mrs G to move to a different care home.
  9. The Council reviewed Mrs G’s care and support plan in June 2017. The plan said the weekly cost of care was £415 and the top-up from 1 May 2017 was £40 per week. The assessment found Mrs G's care needs could be met in a care home at the usual cost.
  10. Mr F complained to the Council that he or his wife should not be paying the top-up as this had been an agreement made by the late Mr G.
  11. The Council responded to Mr F that it was not responsible for paying the top-up . It said five alternative residential care placements at the Council's usual cost were available. Mr F complained to the Ombudsman. He says only one care home was offered at the usual cost.

My findings

  1. When Mrs G went into Care Home X in 2013, the Council should have ensured she had a choice of accommodation and made a written record of her preferences. In response to my enquiries the Council accepted it had no records of discussions about alternatives care homes. This is fault.
  2. Care Home X was more expensive than the Council’s usual cost. The Council should therefore have made sure Mrs G’s family was willing and able to pay a top-up and set out the arrangements in writing. The Council has accepted there are no records of this being done. This is fault.
  3. Mr F says his wife signed the contract with Care Home X on behalf of her father. I have no reason to doubt this. The evidence is Mrs F was managing Mr G’s finances as he lacked capacity and she had agreed to pay both Mrs G's top-up and Mr G's top-up. There is no evidence Mr G managed Mrs G’s finances.
  4. The lack of a written agreement with the Council made it unclear whether Mrs G’s top-up was the responsibility of Mr G or Mrs F.
  5. This meant that when Mr G died in 2015 the Council took no action to clarify the top-up arrangements for Mrs G. Payments continued to be made and the evidence is the Council assumed Mrs F was responsible for them. There is no evidence long term affordability of top-ups were discussed with Mrs F and no new top-up agreement was made with her. This is fault.
  6. Care Home X’s contract says it will review its fees from time to time. It gave two months’ notice of its price increase. I do not find any fault here.
  7. After the price increase, Mr F contacted the Council. Mrs G’s care and support plan was reviewed. The Council decided her needs could be met in a care home at its usual cost and offered alternative placements to Mr F.
  8. The family's wishes that Mrs G remain in Care Home X, where she is settled and well-cared for, are wholly understandable. However the Council properly decided that her care needs could be met in accommodation available elsewhere at the usual cost. Where there is no fault in the way the Council makes a decision, I cannot question it. If Mr and Mrs F are unable to pay the increased top-up, alternative accommodation is available at the usual cost.
  9. In response to my enquiries, the Council said top-ups were a private arrangement between the third-party and the care home. This is not in line with the Guidance. This says the council is responsible for contracting with the provider and it “must ensure” that the person paying the top-up enters into a written agreement with the local authority.

Has the fault caused injustice?

  1. There was fault by the Council in 2013 in not keeping records of discussions about Mrs G’s choice of accommodation and in not making a written agreement about the top-up arrangements. I have considered whether this fault has caused injustice to Mrs G or to Mr and Mrs F.
  2. Mr F has said the family chose Care Home X in 2013. Mr G was living in a different care home, so I consider Mrs G’s family knew of at least two care home options. Mr and Mrs F also decided to move Mr G into Care Home X. So, even if written records had been kept, I consider it likely that Mr and Mrs F would still have chosen Care Home X. Funds were available from Mr G’s assets and Mr F has only complained when the top-up increased, so I consider it likely the family would have agreed to pay the top-up .
  3. However, the lack of a written agreement meant it was unclear whether Mrs F or Mr G was responsible for the top-up and an opportunity to clarify the situation when Mr G died was missed.
  4. In 2015 Mrs G was settled in Care Home X and no concerns had been raised about her placement. In addition, Mr and Mrs F did not raise concerns about continuing to pay the top-up. So, on the balance of probabilities, I consider that if the Council had discussed the top-ups with Mr and Mrs F in 2015, they would have been happy for Mrs G to remain at Care Home X and would have agreed to continue paying.
  5. However, I consider the lack of discussion about affordability and lack of a written agreement meant Mr and Mrs F were unclear about what would happen in the event of a price increase by Care Home X. This meant when the top-up doubled in 2017 this caused anxiety. This is their injustice.
  6. Mrs G has also been caused injustice as the lack of discussion about long term affordability in 2015 means she does not know whether she now has to move to a different care home.

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Agreed action

  1. The Council says it has reviewed its approach to top-ups following a previous Ombudsman report in 2017 and has issued new guidance to staff. I welcome these changes.
  2. To remedy the injustice described in paragraphs 43 and 44, the Council should, within a month of my final decision:
      1. Apologise to Mr and Mrs F for not having a written agreement about the top-up arrangements
      2. Pay them £250 to acknowledge the anxiety and confusion caused by the lack of an agreement
      3. Make a written agreement with them about Mrs G’s top-up arrangements, if she chooses to continue living at Care Home X
      4. Apologise to Mrs G for the uncertainty caused by not having considered the long-term affordability of the top-up payments
      5. Pay her £250 to remedy this

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Final decision

  1. There was fault by the Council in not keeping records of discussions about Mrs G’s choice of accommodation and in not making a written agreement about the top-up arrangements. This has caused injustice to Mrs G and Mr and Mrs F.
  2. The Council has agreed to the recommended actions and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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