Summary: Miss A complains the Council is wrong to seek recovery of a top up fee for her mother’s care home when she could no longer afford to pay it. The Ombudsman finds there is fault by the Council, because it did not consider the sustainability of its arrangement with Miss A. The Council has agreed a remedy.

The complaint

1. The complainant, whom I shall refer to as Miss A, complains that the Council should not have charged her top up fees for her late mother Mrs B’s residential care. She says it is wrong to seek recovery of the fees because they were unfair, and the family had no choice but to take up a place in a home which charged the top up fees. She says she is unable to pay the outstanding fees, following an arrangement with the Council that it would cover the fees until she could pay.

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The Ombudsman’s role and powers

2. 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)
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

4. I have considered the complaint and the copy correspondence provided by the complainant. I have made enquiries of the Council and considered the comments and documents the Council provided. I have also considered the complainant’s comments on my draft decision.

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What I found

5. Miss A’s mother Mrs B was in hospital and moved into care home D, in June 2014. The Council says it explained to Mrs B’s family this was a “flexi bed” which was to allow time to assess Mrs B to decide her needs and consider options. The hospital social worker wrote to Mrs B’s other daughter, Miss T, explaining the flexi bed. The social worker also noted she discussed the flexi bed with Miss A, the day before Mrs B was discharged.
6. After two weeks at care home D, the family agreed that it would be unsafe for Mrs B to return home. They discussed care home X which they had identified as suitable for Mrs B with the Council. The social worker asked if the family had looked at other homes and if they had discussed top up fees which would likely apply. The family said top up fees had been mentioned but not in detail. The social worker said that these would need to be paid by a third party such as the family, not Mrs B. Mrs B was placed on care home X’s waiting list.
7. The Council says it explained the top up charges to the family at a meeting which Miss A did not attend. After a month the Council advised that it would fund Mrs B’s care in a residential placement at its band 2 rate. Care home X was £50 per week above this rate. The Council contacted care home X but no beds were available. Mrs B remained on their waiting list, but the home did not know when a bed would become available.
8. The Council’s social worker called Miss T and advised that Care Home X had no beds and did not know how long she would have to wait. The Council advised that Mrs B could not stay at care home D because the flexi bed was a temporary placement. The Council suggested that the family looked at other care homes and noted Miss T understood this. She asked if the family could place Mrs B at another home while they waited for care home X, which the Council agreed. The Council asked care home D if it could keep Mrs B for a further 2 weeks, and it agreed.
9. The Council spoke to Miss A after two weeks. It noted it said that Mrs B could not stay at the home indefinitely. Miss A said the Council was kicking her mother out onto the street. Miss A said the family wanted care home X, and were not satisfied with any other homes they had seen. The Council said that care home D was not kicking Mrs B onto the street, but it had processes to follow when people overstayed. The Council said it was trying to find out if the family had considered any other options. Miss A said the family had put a deposit on another home. This too charged above the Council’s rate. The Council agreed a further extension with care home D to see if a bed became available at care home X. The Council called other homes to see what was available.
10. On 22 August 2014 the Council advised Miss T that there were other homes available, one of which was at the Council’s rate. The Council noted that Miss T said the family did not want to consider this and had decided to wait until care home X had a bed as a temporary move would be too much of an upheaval. The Council arranged a further extension at home D.
11. Mrs B went into hospital for approximately a week. On her discharge the Council contacted home X, but it still had no beds available. After a further week, in September 2014 a bed became available at home X and Mrs B moved in. Mrs B’s family paid a top up fee to the home. The family confirmed to the Council that Mrs B was happy there.
12. Miss A paid the top up fee of £50 per week and other family members contributed to this. Miss A had signed the contract with the home agreeing she would pay the full top up fee, therefore she was the liable party.
13. In November 2015 Miss A said she could no longer afford her share of the top up fee due to a change in her circumstances. She asked the Council to lend her the money for the top up fee and she would repay it when her circumstances changed. The Council advised Miss A to negotiate with home X. Miss A attempted to do so but the home would not reduce its top up fee.
14. The Council advised Miss A it did not pay top up fees and said that Mrs B could potentially move to a home which accepted the Council’s rates. Miss A was upset by this suggestion and said moving Mrs B would kill her. Miss A said the Council had a legal obligation to pay the fees if he third party could no longer do so.
15. Miss A then asked the Council to pay her share of the top up fee which was £12 per week. She said she did not think it was fair to ask her family to cover her share. She said she would start paying again and repay any arrears when she sorted out her finances, but she did not know when that would be. She suggested a review every three months.
16. The Council attempted to negotiate with the care home, but it did not agree. The Council advised it could pass Miss A’s request to its resolution panel, but it did not know if it would agree. It suggested Miss A asked other family members to help pay. Miss A responded that the Council had not provided any alternative to home X, and the family had to find a home quickly because the Council told them Mrs B could not stay in the flexi bed at home D. She said the Council told her the home was about to close down and that Mrs B could be placed out of the local authority’s area. In her view, the Council forced the family to accept home X because it was the only home available that would meet her needs. She considered the Council should have paid the top up fee from the start.
17. The resolution panel agreed the Council would pay Miss A’s share of the top up fee if she signed an agreement that she would pay the arrears once her financial improved.
18. Miss A then asked the Council to pay for the full amount of the top up fee. It is not clear why she asked for this or what the resolution panel considered. The resolution panel agreed to pay the full amount of £50 per week. The Council sent Miss A an agreement to sign that it would pay the fee directly to home X but it would invoice her. I have not seen a copy of the agreement that Miss A signed. I have asked the Council for a copy of this.
19. The Council paid the top up fees for the period February 2016 to April 2017 when sadly, Mrs B died. The Council says it sent invoices to Miss A. The total amount to be paid was just under £3000. Miss A made some payments by direct debt at £40 per month. However, in 2017 she said she could not pay and complained that the Council had not assisted her family. She said that there was no other care home available that met Mrs B’s needs. The family had no other option in her view but to place Mrs B in care home X.
20. In March 2018 Miss A paid £500 but said he could not pay any more. She complained again that there was no alternative care home available within the Council’s rates.
21. The Council replied in August 2018 and apologised for its delay in responding. It said it needed to get historical records and consider all the points she raised. In response to the main points it said care home D did close in early 2015 but this did not mean the Council expected Mrs B to move out. The Council said Mrs B was place in a flexi bed for assessment and it had explained the reasons for this and the process to the family. While the family had identified care home X as a choice no bed was available. The Council social worker explained that Mrs B could not stay in the flexi bed indefinitely and advised the family to look at alternatives. The Council explained there was no fixed time limit for a flexi bed stay but normally the assessment period was 2 to 4 weeks. Mrs B had stayed in care home D for 11 weeks and the Council had agreed a number of extensions to her stay. In the Council view the family were considering care home X from early July 2014 and the Council showed flexibility to allow Mrs B to stay in care home D so that the family could pursue their choice of home.
22. With regard to the choice of alternative accommodation the Council said it had advised the family on 22 August 2014 about a care home that was within the Council’s rate and had vacancies. However, the family did to wish to consider this option. The Council did not agree there was any evidence it had advised the family that Mrs B would have to move out of the Council’s area. The Council did not uphold this complaint that there was effectively no choice of accommodation.
23. The Council noted Miss A complained there was no choice of accommodation without a top up fee and therefore the Council did not adhere to the Care Act 2014. This says that third party payments “must always be optional and never as a result of commissioning failures leading to a lack of choice.” However, in the Council repeated that it had advised the family of at least one other home without a top up fee. The Council had agreed on request to pay Miss A’s share and then the full top up fee of £50 per week from February 2016, on the basis that Miss A would pay when she could afford it.
24. The Council noted Miss A complained it had sent invoices for varying amount an had not sent a breakdown/. It explained the invoices it had sent and agreed it had delayed responding to Miss A’s requests for a breakdown. It apologised for this and said it would take action to address the training issue.

Analysis

25. I have considered the evidence regarding Miss A’s complaint that the Council forced her family to seek a bed at care home X because there was no other home available, that she was told care home D was closing and also that Mrs B had overstayed. I have not seen evidence that the Council told the family that care home D was closing, but it does appear the Council advised Mrs B could not stay in the flexi bed long term. However, this was the nature of the accommodation, as it was for the purposes of assessment. The average stay was 2-3 weeks but the Council arranged extensions so Mrs B’s stay was 11 weeks. I note that Mrs B was in hospital for a week during that time, but care home D was clearly not permanent accommodation and the Council correctly advised the family to consider the options. There is apparent evidence that the family chose care home X at an early stage. While they considered another home for a temporary stay, they clearly wanted care home X as a long term placement. The evidence I have seen shows the Council did advise regarding an alternative within the Council’s rates. The Council called the family and advised them verbally. As the Council did provide an alternative option, I have not found fault here.
26. However, I have concerns regarding the arrangement to invoice Miss A the top up fees. This was on the basis that Miss A would repay when she was able to do so. This was not in my view sustainable. It allowed the debt to mount up without a prospect of it being paid. Miss A had already stated that she was unable to afford to pay her own share and did not know when that situation would improve. Miss A made some payments but then advised that she could not pay. The Council advised Miss A regarding the outstanding arrears but did not review this arrangement on a regular basis in order to consider sustainability. In addition, while the Council initially agreed to pay Miss A’s share of the contribution and invoice her, the Council has not been able to provide evidence to show how it considered Miss A’s request to cover the full contribution and then invoice her. If she had been unable to pay her own contribution, it is not clear why the Council considered she would be able to maintain payments of the full amount. The Council does not have evidence the Council properly considered whether other members of the family could pay their own or Miss A’s share.

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Agreed remedy

27. I consider the Council did not properly consider the sustainability of the arrangement it made with Miss A. Therefore, I recommended the Council considered whether it should pursue recovery of the remaining arrears. The Council has agreed. It has confirmed that it will not seek to recover the outstanding arrears. The Council should write to Miss A to confirm this within 6 weeks.

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Final decision

28. The Council has agreed the remedy I recommended and so I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman