Summary: The Council did not adequately explain the complainant would be required to pay an assessed contribution towards the costs of a nursing home placement. This meant her family received unexpected invoices after the placement ended. The Council has agreed to apologise for this.

The complaint

1. The complainant, to whom I will refer as Mrs W, is represented in her complaint by her son, to whom I will refer as Mr Y.
2. Mr Y complains the Council has charged Mrs W a contribution for her fees during a stay in a residential nursing home. He says the Council assured the family there would be no charge to Mrs W.
3. Mr Y has also complained about the home’s handling of a Deprivation of Liberty Safeguards application.

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What I have investigated

4. I have investigated the complaint described in paragraph 2. I have not investigated the complaint described in paragraph 3, for reasons I will explain at the end of this decision statement.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. I reviewed the Council’s case notes, the Individual Service Agreement (ISA) for Mrs W, the Council’s adult social care charging leaflet, and its correspondence with Mr Y.

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What I found

8. In early 2018, Mrs W was diagnosed with dementia. Over the following months, she spent a significant amount of time in hospital, and other periods at home, when she was receiving home care visits, and also being cared for by her husband.
9. In September, during a stay in hospital, the Council and Mrs W’s family agreed she should enter a nursing home. This was intended to be a short-term placement, with the aim of assessing her and allowing her to return home.
10. During discussions about the funding for Mrs W’s placement, the Council agreed to pay a third-party top-up for a particular nursing home.
11. Mrs W entered the home on 28 September. After an extension to her stay, she was eventually discharged from the nursing home on 5 December.
12. On 11 March 2019, Mr Y submitted a complaint to the Council. He said Mrs W had received two invoices her stay at the nursing home, totalling £341.28. Mr Y said the Council had agreed to pay the top-up for her stay, and the family had been under the impression there would be no charge to Mrs W.
13. The Council replied on 1 April. It explained the invoices for Mrs W related to her assessed contribution (of £34.62 per week), based on her income. The top-up fee which the Council had agreed to pay was a separate element of her overall charge, representing the difference between its standard rate and the fee charged by Mrs W’s nursing home.
14. After further correspondence from Mr Y, the Council provided copies of a selection of its notes on 13 May, referring to the charging arrangements for Mrs W’s stay at the home. It also sent a copy of the Individual Service Agreement (ISA) for Mrs W’s placement, which referred to the necessity for her to pay an assessed contribution, while confirming the Council was paying the top-up.
15. On 20 August, Mr Y referred his complaint to the Ombudsman. He said the Council had led the family to believe there would be no charge for Mrs W’s placement, and the evidence provided by the Council did not record the facts being explained to the family. He also said the family had not been given a copy of the ISA at the time of Mrs W’s admission to the home, and pointed out it was unsigned.
16. Mr Y also complained the family had been told Mrs W was subject to a Deprivation of Liberty Safeguards (DoLS) authorisation during her stay at the nursing home, but had later been informed this was not the case.

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Legislative background

Charging for social care services: the power to charge

17. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
18. Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)

Charging for temporary residential care

19. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt that permanent admission is required. The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance 2014 set out charging rules for temporary residential care.
20. When the Council arranges a temporary care home placement, it has to follow these rules when undertaking a financial assessment to determine how much a person has to pay towards the costs of this stay. The Council can either charge the person under the rules for temporary residential charging or treat the person as if they are still living in the community (i.e. the non-residential rules for charging).

Top-up payments

21. 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.
22. 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.

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Analysis

23. Adults receiving local authority-commissioned social care will usually be required to contribute to its cost. How much depends on their financial situation, and the cost of their care; but, typically, the local authority will set a weekly personal budget, and ask the service user to pay an amount towards this, which is calculated from their income (such as pensions and benefits) and assets (such as savings).
24. If a person needs residential care, some homes may charge more than their weekly personal budget. In such cases, a ‘top-up’ agreement can be reached, where a third-party (such as a family member) pays the difference between the budget and the weekly fee. In such cases, there will be three parties paying the fee – the service user’s assessed contribution, the Council with its own contribution, and the family member or other third party paying the top-up.
25. In Mrs W’s case, the Council agreed to pay the top-up. This did not mean, however, there would be no charge to Mrs W, as she was still required to pay her assessed contribution. This is the charge for which the Council has now invoiced her.
26. Mr Y considers the Council failed to make clear, during the discussions running up to, and during, Mrs W’s admission, there would be a charge to her. It was only after she returned home the Council sent invoices.
27. I have examined the Council’s case notes covering this period. I can see several references to the top-up for Mrs W’s stay at the nursing home, and the fact the Council had agreed to pay it – in fact, this issue appears to have generated a significant discussion between the Council and the family.
28. However, I am not convinced there is clear evidence the Council explained the difference between assessed contributions and top-ups to the family.
29. For example, there is a copy of an email on the Council’s records. This is from a charity which works with the Council to arrange social care placements, and which was involved in Mrs W’s case. The charity’s email says Mrs W’s husband “would also have been provided with … top-ups leaflet … at the beginning of the process”. I have seen a copy of this leaflet, which explains the difference – but I do not read the charity’s email to confirm Mrs W’s husband definitely had been given the leaflet, nor that it had discussed it with him to ensure he understood it.
30. I note the ISA, which the Council referred to in its response to Mr Y’s complaint, also explains the difference between contributions and top-ups. However, as Mr Y points out, this document was neither signed nor dated.
31. I asked the Council to explain this. It said it issues these documents to care providers, but its expectation is they will arrange for it to be signed and return a copy to the Council. The Council explained it cannot wait for the ISA to be signed before providing services.
32. I appreciate the Council’s reasons for not waiting for a signed copy of the ISA before providing services to Mrs W, but this does not explain why it (seemingly) did not chase the care provider to return a signed copy of the document. I note, in particular, the front page of the ISA directs the care provider to do just this.
33. So I do not consider the Council can rely on the existence of this document to show it provided information about the charging arrangements for Mrs W. There is no evidence it provided a copy to her family, either directly or through the care provider.
34. Taking this together, I do not consider there is evidence to show the Council took adequate steps to ensure Mrs W’s family knew she would be expected to contribute to her fee. I find fault in this respect.
35. The Ombudsman seeks to return complainants to the position they would or should be in, if it were not for fault by the authority in question. In this case, Mr Y seeks the waiver of the fees the Council has charged Mrs W.
36. However, the Council’s fault here was not that it has wrongly charged Mrs W, but a lack of transparency about the charges. There is nothing to suggest it miscalculated Mrs W’s contribution, and so I must consider the fees properly and legitimately due.
37. There is also nothing to suggest Mrs W’s family would have turned down the care placement, if they had been aware of her need to contribute to it.
38. So, in short, even if the Council had not been at fault, Mrs W would still have to pay the fees. For this reason, I do not consider the fees themselves represent an injustice, and I cannot justify recommending they be waived as a remedy here.
39. I accept it would have been an unpleasant surprise for Mrs W and her family to receive these invoices, when they believed her placement at the nursing home would be free. This could have been avoided if the Council had made clear the difference between assessed contributions and top-ups. And so I do consider this to be an injustice arising from the Council’s fault.
40. But, and while I do not dismiss the upset this caused, I am not persuaded this represents a significant injustice. I consider a letter of apology from the Council would be an adequate remedy for this.

Agreed action

41. Within one month of the date of my final decision, the Council has agreed to write a letter of apology to Mr Y, to acknowledge it should have been more transparent about the charging arrangements for Mrs Y’s placement in the nursing home.

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Final decision

42. Subject to further comments by Mr Y and the Council, I have completed my investigation with a finding of fault causing injustice.

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Parts of the complaint that I did not investigate

43. Mr Y has also complained the nursing home wrongly informed the family Mrs W was subject to a DoLS authorisation during her stay at the home, when in fact she was not.
44. Mr Y did not raise this issue as part of his complaint to the Council. This means the Ombudsman cannot investigate it at this time.

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Investigator's decision on behalf of the Ombudsman