Sandwell Metropolitan Borough Council (18 014 885)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 27 Aug 2019

The Ombudsman's final decision:

Summary: Mr and Mrs B complain the Council did not provide proper support and information when Mrs B’s mother, Mrs X, was to be discharged from hospital. That meant they were liable for a top up payment for care fees which they cannot afford. There was fault by the Council in not providing written information to Mr and Mrs B about the options for Mrs X’s care and the associated costs. The action the Council has agreed to take provides a satisfactory resolution of the complaint.

The complaint

  1. Mr and Mrs B complain the Council did not provide proper support and information when Mrs B’s mother, Mrs X, was to be discharged from hospital. They say that as a result they are now liable for a top up payment for care fees which they cannot afford.

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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 considered the complaint and documents provided by Mr and Mrs B. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mr and Mrs B and the Council and considered their comments

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What I found

  1. Mrs X had been living in care home 1. She was admitted to hospital. Mr and Mrs B say this was because of poor care at the care home. They made a safeguarding referral about the care. Mrs X was ready to be discharged from hospital at the end of April 2016. Mr and Mrs B have commented that there were expecting contact from the Council about where Mrs X could move to. They say the hospital was keen for Mrs X to be discharged so they found care home 2.
  2. The Council’s notes of the contact with Mrs B at this time show she had agreed to pay the top-up fee of £57 at care home 2 and would sign the contract agreeing to that. Mrs X moved into care home 2 on 10 May.
  3. In September 2016 Mr B signed a contract with the Council for the placement at care home 2. This explained the charges and the third party top-up charge. In signing the contract it was clear Mr and Mrs B were liable for the top-up charge of £57 a week.
  4. The next significant event was in June 2017 when the Council sent Mr and Mrs B an invoice for over £4000 for outstanding top-up fees. The Council investigated the situation and concluded the family could not make the top-up payments. The Council negotiated with the care home to reduce them to £50 a week but Mr and Mrs B could still not make the payments.
  5. There was no significant action until July 2018 when the Council identified a care home which it considered could meet Mrs X’s needs and would not require a top-up. Mr and Mrs B did not consider it to be suitable.

Legal background

  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 the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
  2. 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.
  3. 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.
  4. We issued a focus report in September 2015 - “Counting the cost of care: the Council’s role in informing public choices about care homes”. This states that Councils should provide information in writing to families. This is so they can make informed choices about the choice of care home, including the costs, how to meet them and whether to pay a top-up.

Analysis

  1. When someone leaves hospital the assumption would be that they would return to their home. In this case that would have meant Mrs X returning to care home 1. The family did not want her to go back there because of the concerns they had about the standard of care provided.
  2. The Council has commented that Mr and Mrs B were already paying a top-up for care home 1. Mr and Mrs B dispute this and say they were not. This is not a significant point for my investigation so I do not need to come to any view on this difference. The file notes show Mr and Mrs B agreed to pay a top-up for care home 2. This was confirmed when Mr B signed the contract agreeing to pay the top-up. But the Council has accepted it should still have followed the proper process in considering what alternatives were available within Mrs X’s identified personal budget. It should have explained those alternatives to Mr and Mrs B, in writing. Not doing so is fault.
  3. The Council has agreed to waive the outstanding top-up fees and to meet the cost going forward. This is a satisfactory resolution of the complaint.

Agreed action

  1. The Council will now pay the top-up fee and waive the outstanding top-up fees. The Council should confirm this has happened within one month of the final decision.

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Final decision

  1. There was fault by the Council in not providing written information to Mr and Mrs B about the options for Mrs X’s care and the associated costs. The action the Council has agreed to take provides a satisfactory resolution of the complaint.

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Investigator's decision on behalf of the Ombudsman

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