Summary: Mrs C’s complaint is that the Council charged a top-up fee in respect of residential nursing care for her mother Mrs D, without her consent and without advising her of it, when she jointly held Lasting Power of Attorney. The Ombudsman finds there was fault by the Council which calls into question the top-up fees charged. The Council has agreed to the Ombudsman’s recommendations for action to remedy the injustice caused by its failings in this case.

The complaint

1. Miss B complains on behalf of her mother Mrs C. The complaint is that the Council charged a top-up fee in respect of residential nursing care for Mrs C’s mother Mrs D, who has now passed away, without her consent and without advising her of it, despite the fact that she jointly held Lasting Power of Attorney.

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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 considered all the information provided by Miss B about the complaint. I made written enquiries of the Council and took account of the information and evidence it provided in reply.
5. I considered the relevant legislation and statutory guidance relating to charging for adult social care, and I took account of the Ombudsman’s guidance on remedies.
6. I provided Miss B and the Council with a draft of this decision and took account of all comments received in response.

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What I found

Legal and administrative background

7. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s powers to charge for care.
8. The council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the council will provide a support plan which outlines what services are required to meet the needs and a personal budget which calculates the costs of those services. The council will carry out a financial assessment to determine what a person’s income and capital is and what they should pay towards their care.
9. When it has been decided that a person’s needs are best met in a care home, the council must ensure that at least one accommodation option is available within the person’s personal budget and it should ensure that there is more than one of those options.
10. However, a person can choose a more expensive care home if a third party or in certain circumstances the resident is willing and able to pay the additional cost: this is known as a top-up fee.

What happened in this case

11. Mrs D’s daughter, Mrs C, and her son (Ms C’s brother) had joint Lasting Power of Attorney (LPA) for Mrs D’s health and welfare, and for property and affairs. This gave them authority to make decisions about such matters as where their mother would be cared for, and to deal with her financial affairs. The LPAs were held jointly and severally which meant they could act both independently and together in their mother’s best interests. It is up to the attorneys in such cases to choose when they act together or alone.

The care arrangements

12. Mrs D received care in her own home before going into respite care in a nursing home in January 2018. From there she was admitted to hospital and then discharged to a different nursing home for further respite. When the placement there was due to end and could not be extended because the home was fully booked, the Council had to try to find an alternative placement for her.
13. On 7 February the Council visited Mrs D to assess her care needs and mental capacity to make her own decisions around her care and support needs. The following day the Council’s assistant care manager called both Mrs C and her brother. An email was also sent. The Council said a move to a permanent nursing home placement would be needed and that the siblings would need to decide between them whether that would be in the area she was currently in, nearer to her son’s home, or in another council’s area nearer to her daughter.
14. On 9 February the Council’s records state that the assistant care manager telephoned local nursing homes looking for a respite bed, but none were available. No details were noted on the records of the homes called. The assistant care manager then spoke to Mrs D’s son and advised an alternative respite bed was needed until a permanent placement could be found and decided on in by himself and his sister. When advised that his mother needed to move to another temporary respite placement, Mrs D’s son asked the assistant care manager to enquire if Home X, in the Council’s area, had a bed available. The assistant care manager made the enquiry but at this point was not able to confirm a bed would be available. The assistant care manager then called Mrs C and gave the same information, but did not mention Home X, which at this point had not been confirmed as available. The assistant care manager then sent an email to Mrs D’s son asking him to confirm agreement to pay a top-up of £279.85 a week for the cost of care at Home X for four weeks respite. Asking for this top-up was fault, and I will return to this point later in this statement.
15. Home X confirmed they could meet Mrs D’s needs and she moved there on 14 February 2018.
16. On 19 February 2018 the assistant care manager noted she spoke to both siblings and that as Mrs D could be offered suitable placements in the Council’s area to meet her needs, if she moved out of area the family would be required to pay the difference between the different council’s rates for care. The notes say the assistant care manager gave Mrs D’s son a list of nursing homes in the local area which would be able to meet his mother’s needs and had a vacancy at the Council’s rates.
17. On 18 February Mrs C had sent her brother an email in which she said she had visited some homes outside the Council’s area and nearer to her home. He replied saying he was willing for their mother to go to one of those mentioned and would go and see two of them, but expressed a preference for one, Home Y. On 26 February Mrs D’s son emailed the Council. He said: “I have visited some of the homes my sister suggested, and we have agreed on [Home Z]”. He said his sister had asked him to convey this information to the Council. He added though that the home had expressed that if his mother was totally reliant on hoisting for mobility then this might be a problem.
18. Notes of an internal telephone call say that the assistant care manager spoke to the Council’s legal department and advised that she had offered the family suitable placements in the Council’s area but had now been advised the family had decided on an out of area placement. Some internal discussion relating to funding arrangements then followed.
19. The Council’s notes say that in a telephone conversation on 2 March Mrs C asked the assistant care manager whether her mother’s stay at Home X could be extended until the move to a permanent placement could be arranged, to avoid the need for a move to another temporary placement. The Council’s notes say she also asked the assistant care manager to contact Home Z to clarify whether it could meet her mother’s needs. In a further call three days later the assistant care manager advised Mrs C that the home had confirmed they would not be able to meet Mrs D’s needs, but Home Y could do so.
20. On 7 March Mrs C advised that her brother had extended their mother’s stay at Home X and the assistant care manager confirmed with the home that this was the case, with the extension requested to the end of March or longer if required. The assistant care manager then again asked Mrs D’s son to confirm agreement to pay the weekly top-up fee of £279.85, and he confirmed he would do so, exercising his power of attorney.
21. On 19 March the Council’s records note a telephone call from Mrs C confirming her brother had agreed their mother’s move to Home Y, but she wanted to know if he had changed his mind. The assistant care manager advised the matter of permanent placement was for Mrs C and her brother to decide between themselves, exercising their duties as attorneys and acting in their mother’s best interests. Mrs C then sent further emails, first confirming she would start planning her mother’s transfer to Home Y, but then advising her brother had changed his mind about Mrs D moving to Home Y. She wanted the Council to arrange a best interests meeting.
22. The Council contacted the Office of the Public Guardian (OPG) for advice. The OPG is the government agency which deals with LPAs and matters relating to those who cannot make decisions about their health and finance for themselves. The OPG advised that if Mrs D was happy at Home X and her needs were being met there, unless Mrs C had evidence contrary to this then consideration should be given in her best interest to remaining there. The Council also sought advice about instructing an Independent Mental Health Advocate for Mrs D.
23. Sadly, before any further action could be taken in respect of decision-making for an alternative permanent placement for Mrs D, she became unwell. On 30 March 2018 the doctor’s view was she was at the end stage of her life and that it would be inadvisable to move her to a different home. Mrs D passed away on 3 April.

Analysis

Top-up fees

24. At paragraph 14 above I noted that when Mrs D moved to Home X on a respite basis her son was asked to agree to a top-up. This was fault, and when it investigated Mrs C’s complaint the Council acknowledged that no top-up was in fact payable then because at the time of the placement there was no alternative home available that could meet Mrs D’s needs without the need for a top-up.
25. That response to the complaint on 25 March 2019 was not entirely correct however, because it went on to say that a top-up could be charged from when alternative placement was offered, a date it gave as 26 February. In fact, the Council’s records say the assistant care manager provided the list of alternative homes which could meet Mrs D’s needs without the need for a top-up on 19 February. The 26 February date was when the records show Mrs D’s son rang to say the family had settled on one of the out-of-area placements.
26. The information about the top-up was also contrary to that given in a letter the Council’s finance department had sent to Mrs D’s son on 21 June 2018. In that letter the Council set out that top-up fees became payable from 24 March 2018. This is the date from which Mrs D’s stay was deemed to have become permanent.
27. As already noted, the Council must ensure that at least one accommodation option is available within the person’s personal budget and it should ensure that there is more than one of those options. The Council contends that a list of homes with vacancies which could meet needs within budget was provided to the family on 19 February 2018. The only reference to this is the entry in the Council’s case note records and is dated 23 March 2018. Even if that list was provided on 19 February, which has not been evidenced, in order to charge a top-up from 24 March the Council would need to demonstrate that there was a suitable vacancy available elsewhere at that time which could meet Mrs D’s needs within budget and that the family had been appropriately advised. Places which might have been available on 19 February would not necessarily have still been available over a month later.
28. The records show that Mrs C had asked the Council in early March if her mother’s stay at Home X could be extended to avoid another temporary placement, and that her brother agreed to pay a top-up. However, at this point they had not been given correct information about top-ups and there is some doubt that they had been given information about appropriate alternatives where no top-up would have been payable.
29. Mrs C refers to the Council charging a top-up without her consent and without advising her of it. On the matter of consent, the Council did not require the agreement of both Mrs C and her brother. The LPA held was such that they were jointly and severally able to act on their mother’s behalf. As they were able to act independently of one another the agreement of either party was adequate.
30. Mrs C asserts that promises were given by the Council that it would always contact her before any decision was made about her mother’s care. I have seen no evidence of such a promise having been made. The Council’s records evidence frequent contact with both Mrs C and her brother and while not all the communications with one party were repeated with the other, the Council was under no obligation to do so and so this was not fault. It was for Mrs C and her brother to communicate with each other as they saw fit in matters relevant to their duties as attorneys for their mother.

Injustice

31. As a result of the failings identified above, there is uncertainty about whether a top-up has been correctly charged. In addition, Mrs C has been put to some avoidable time and trouble in pursuing this matter.

Agreed action

32. To remedy the injustice in this case, I recommended that within four weeks of the date of the decision on this complaint the Council:

• Remove the top-up fees charged for the period 24 March to 5 April 2018 (a sum of £519.72) and issues a revised invoice for the balance deemed outstanding for Mrs D’s care; and
• Issue Mrs C with an apology and pay her £150.

33. I also recommended that within three months of the date of the decision on this complaint the Council takes steps to remind relevant staff of the importance of timely and comprehensive record keeping, so that all actions taken are appropriately evidenced.
34. The Council has agreed to my recommendations.

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Final decision

35. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman