Summary: Mr and Mrs X have complained about the Council’s decision to charge a third party top up fee towards the cost of Ms Y’s care. They are also unhappy with how the Council has dealt with their complaint. There is some fault by the Council.

The complaint

1. Mr X has complained on behalf of Mrs X about the Council’s decision to charge her a third party top up fee towards the cost of Ms Y’s care home placement. Mr and Mrs X say they believed the top up fee would only apply to the first six weeks of the placement and argue the Council failed to explain the charges would be ongoing. Mr and Mrs X have also complained about how the Council dealt with the complaint and say there have been long delays.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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

4. I have considered all the information from Mr and Mrs X and the Council, including its response to my enquires.
5. A copy of this decision was sent in draft to Mr and Mrs X and the Council. I have considered the comments received in response.

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What happened

6. In September 2018, Ms Y moved into a residential care home for respite care. As the cost of the placement was more than the Council would normally pay, Mrs X agreed to pay a top up fee for the difference. During Ms Y’s stay, her condition became worse and in October 2018 it was decided that she should become a permanent care home resident.
7. Mrs X received two invoices from the Council. The first was to cover top up payments for the initial six week respite period. The second invoice was for top up payments from 21 October 2018 until 8 January 2019. Mr X contacted the Council to question the invoices and said they had only agreed to pay third party top ups for the first six weeks of the placement and had not been told this would be an ongoing contribution. The Council referred Mr X to its care directory so he could look for a placement within Ms Y’s personal budget. However, in January 2019, the care home agreed to waive the top up fees. Mr and Mrs X say they are willing to pay the top up fees for the first eight weeks that Ms Y was in the home but have argued they should not be charged for top up fees incurred after this.

What I found

8. The Council has a duty under the Care Act 2014 to carry out an assessment for any adult that may need care and support. The assessment must find out if the adult has needs and the care and support required to meet these needs.
9. If someone is assessed as needing a placement in a care home, but they cannot afford the full cost, the council will carry out a financial assessment, considering any income and assets to decide how much a person can afford to pay towards their care. The rules say that people with capital over the upper capital limit (£23,250) will be expected to pay for the full cost of their care. Once someone’s capital has reduced below the upper capital limit, they will only have to pay an assessed contribution towards their care.
10. As part of the care and support planning process the council will provide a personal budget. A personal budget will reflect the amount it will cost for the care required to meet a person’s assessed needs. In circumstances where a placement in a care home is necessary, the Care Act says there must be at least one placement choice available that is affordable within the personal budget. A person can still choose to stay in a care home which is more expensive than the amount the council would usually pay. However, a third party would need to pay the additional cost to reflect the difference between the amount the council would pay (including the resident’s contribution) and the actual cost of the home. This is also referred to as a top up fee.
11. 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 these circumstances, the council must not ask anyone to pay a top up fee.
12. In this case, as Ms Y’s savings were below the upper capital limit, she was entitled to local authority funding towards the cost of her care. The care home that Ms Y moved into cost more than the amount the Council usually pays and therefore Mrs X agreed to pay a top up fee for the difference. Mr and Mrs X say they only agreed to this payment for the initial respite placement and were not told that the contribution would continue when the placement became permanent. The Council disagrees. It says Mrs X signed the third party top up agreement which confirmed the payments were ongoing.
13. I have reviewed the top up agreement signed by Mrs X shortly after Ms Y became a permanent resident. The agreement says the third party top up payment will be an ongoing fee which will continue until the placement at the home ends. The Council’s case notes also say that Mrs X accepted the top up payments would continue. Therefore, I consider it more likely than not Mrs X was aware the top up fee was ongoing. The Council has accepted that it did not give Mrs X a copy of the top up agreement at the time and only provided this once Mr and Mrs X complained. There was also a delay with the Council sending invoices for the top up payments. This is fault. However, I cannot say this caused any significant injustice as I consider it clear from the Council’s case notes that Mrs X was aware that the top up payments would continue when the placement became permanent.
14. The Council did not discuss alternative placements which were within Ms Y’s personal budget before she moved into the care home. It says when it spoke to Mrs X about a short term placement for Ms Y it was clear they had already chosen the home and did not wish to consider other options. Mr and Mrs X disagree. They say that they did consider other placements and chose the home as it was a good option for Ms Y. While the Council was at fault for not providing the details of care home placements within Ms Y’s personal budget, I cannot say this caused any injustice. Mr and Mrs X had decided that the home was a good option for Ms Y. She had already visited the home on many occasions and had relatives living there. Therefore, I consider it likely that Mr and Mrs X would have chosen the same care home even if the Council had provided information about more affordable placements.
15. Mr and Mrs X have also complained about how the Council dealt with their complaint and say it took too long to respond to their concerns. The Council has accepted that there was a delay in dealing with Mr and Mrs X’s complaint. This is fault. However, it has already apologised which is a suitable remedy in the circumstances.

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Final decision

16. There is some fault with how the Council dealt with top up payments for Ms Y’s care home placement. However, this did not cause any significant injustice. There is also fault with how the Council dealt with Mr and Mrs X’s complaint. But it has already apologised which is a suitable remedy.

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Investigator's decision on behalf of the Ombudsman