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Calderdale Metropolitan Borough Council (19 009 079)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 26 Feb 2020

The Ombudsman's final decision:

Summary: Ms X complains the Council failed to act properly in arranging care for her mother Ms Y, causing her and her family distress and financial loss. The Ombudsman finds the Council failed to follow the Care Act statutory guidance. He recommends the Council pays Ms X £300 for distress; carries out a full needs assessment of Ms Y; refunds and pays third party top up fees until it identifies a suitable and affordable placement for Ms Y; contracts with the care home directly; provides training to staff and; amends its literature to prevent recurrence.

The complaint

  1. Ms X complains the Council:
    • Failed to properly assess her mother, Ms Y;
    • Failed to identify a suitable care setting;
    • Failed to pay the full cost of the care home;
    • Failed to communicate adequately or at all, throughout.
  2. She says her family had to find a care home themselves and pay a top up fee.

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What I have investigated

  1. I have investigated the complaint above. At the end of this decision I have set out why I have not investigated another matter.

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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. 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. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
  4. 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 spoke to Ms X and considered her complaint. I also reviewed documents provided by Ms X and the Council. I gave Ms X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

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What I found

Care Act Statutory Guidance

Care Assessment

  1. The aim of the assessment is to identify a person’s needs. The council then considers the person’s eligibility for care and support and what types of care and support can help to meet those needs.
  2. An assessment must be person-centred, involving the individual and any other person they might want involved. Where councils identify an adult is unable to engage effectively in the assessment process independently, it should seek to involve somebody who can assist the adult as early as possible.
  3. As part of the care and support planning process a council must provide the person with a personal budget. This provides clear information on the cost of meeting the person’s needs.

Choice of accommodation

  1. Where a council is meeting needs by arranging a care home, it must ensure a person has a genuine choice of accommodation. The council should give the person clear and balanced information to make the best choice. It must ensure there is at least one accommodation option available that is affordable and within a person’s personal budget. If no accommodation is available within the personal budget the council must arrange care in a more expensive setting and adjust the budget to ensure that needs are met. In such circumstances, the council must not ask for the payment of a ‘top-up’ fee.
  2. The person can choose the provider or location, subject to certain conditions. Councils should have regard to the following principles:
    • good communication of clear information and advice to ensure well informed decisions
    • a consistent approach to ensure genuine choice
    • clear and transparent arrangements for choice and any ‘top-up’ arrangements
    • clear understanding of potential consequences should ‘top-up’ arrangements fail with clear exit strategies
    • the choice is suitable to the person’s needs.

Top up fees

  1. A person can choose accommodation that is more expensive than the amount set in the personal budget, if a third party is willing to pay the additional cost - a top up fee. But if a person is placed in more expensive accommodation solely because the council has failed to arrange accommodation at the anticipated cost, then a top-up fee will not be payable. Where a person chooses a more expensive setting, based on good information and advice, the council should ensure the person understands the full implications of this choice.
  2. When considering the cost of care in its area, the council is likely to identify a range of costs which apply to different circumstances and settings. For the purposes of agreeing a ‘top-up’ fee the council must consider what personal budget it would have set at the time care and support is needed. It should not automatically default to the cheapest rate or to any other arbitrary figure.
  3. The council must ensure the person paying the ‘top-up’ is willing and able to meet the additional cost for the likely duration of the arrangement. It must ensure the person paying the ‘top-up’ enters into a written agreement with the council, agreeing to meet that cost. The agreement must, as a minimum, include the following:
    • the additional amount to be paid
    • the amount specified for the accommodation in the person’s personal budget
    • the frequency of the payments
    • to whom the payments are to be made
    • provisions for reviewing the agreement
    • a statement on the consequences of ceasing to make payments
    • a statement on the effect of any increases in charges that a provider may make
    • a statement on the effect of any changes in the financial circumstances of the person paying the ‘top-up’
  4. Before entering into the agreement, the council must provide the person paying the ‘top-up’ with sufficient information and advice to ensure they understand the terms and conditions, including actively considering the provision of independent financial information and advice.
  5. Ultimately, if the arrangements for a ‘top-up’ were to fail for any reason, the council would need to meet the cost or make alternative arrangements, subject to a needs assessment. Councils should therefore maintain an overview of all ‘top-up’ agreements and should deter arrangements for ‘top-up’ payments to be paid directly to a provider.

Funded Nursing Care

  1. An NHS screening assessment will establish whether a person has nursing needs. If they do, the NHS will pay for the nursing element of care in a nursing home. This is referred to as ‘funded nursing care’ (“FNC”).

What happened

  1. Ms Y received residential care in Care Home A funded by the Council. In 2017 she moved to the “Elderly Mentally Infirm” (EMI) section within Care Home A, also funded by the Council.
  2. In February 2019 Ms Y entered hospital.
  3. On 13 March the NHS agreed to fund FNC for Ms Y pending an assessment.
  4. The Council has provided a copy of its social worker case notes. These show Social Worker A met Ms X at the hospital on 12 and 13 March. Ms X discussed moving Ms Y to a nursing home. The social worker said Ms Y would need a “dual registered care home” because Ms Y may need to move to a residential setting if her needs improved. Social Worker A says she gave Ms X a copy of the Council’s “Residential Charges” booklet.
  5. On the same date Social Worker A made a referral to the Council’s care home support services. The referral email says Care Home A had refused to take Ms Y and she now had FNC funding. Social Worker A wanted a dual registered home but did not feel Ms Y needed EMI nursing.
  6. Ms X then liaised with the Council’s care home support service.
  7. I note Social Worker A did not give clear information and advice to Ms X. Rather, she:
    • gave Ms X advice on the type of care home Ms Y needed before assessing Ms Y’s needs.
    • did not make clear FNC was subject to assessment and may be removed.
    • did not explain what she meant by a dual registered care home.
    • did not make clear if Ms X should look for a placement suitable for EMI.
  8. I note the Residential Charges booklet explains the Council sets standard rates for care home placements upon which it will carry out a financial assessment. If a person chooses a care home that charges more than the standard rate, a third party will have to pay the additional cost. This “third party contribution” is an arrangement between the care home and third party directly, not the Council. The service user “will be required to demonstrate that the third party is able and willing to pay the contribution, as failure to keep up these payments may require you to move to an alternative Care Home”.
  9. The booklet sets out the Council’s set rates for care. Costs vary depending on whether the care is residential or nursing and whether it is care of an older person or care of an EMI person.
  10. I note the information in the Council’s booklet is contrary to the statutory guidance as:
    • the top up fee payable is based on the Council’s standard rate, rather than the individual’s personal budget.
    • all top up agreements are direct with the care home, rather than the Council.
    • the service user must prove the third party is able and willing to pay the top up, rather than the Council ensuring this.
    • it does not ensure the person paying the top up has the necessary information, as the agreement is direct with the care home.
  11. On 13 March the care home support service gave Ms Y details of care homes. Ms Y says these homes were either too expensive or refused to take Ms Y. I note the Council has not provided any evidence to show these homes were suitable and based on Ms Y’s care needs assessment. It has also not evidenced that any of these homes were within Ms Y’s personal budget or were able to take her. I note this is contrary to statutory guidance which says the Council must ensure at least one care option is available that is affordable within a person’s personal budget.
  12. On 18 March 2019 Social Worker A assessed Ms Y and concluded she needed a new placement that provided 24 hour nursing care. I note this was a “proportionate assessment” rather than a full care needs assessment. The assessment says “her EMI behaviours are currently not impacting her and it is felt that 24 hour nursing care should be able to meet her needs”. It records previous EMI behaviours included shouting and wandering. The assessment refers to information provided by Ms Y’s family, including Ms X. Social Worker A has also recorded them as being involved in the decision making. I note Ms X later signed and returned a copy of the assessment, with further notes. There is no evidence Social Worker A set Ms Y a personal budget.
  13. The social worker case notes show Social Worker A contacted Ms X regularly to find out how she was getting on with finding a care home. Ms X expressed concern the family could not afford third party top up fees and the homes she had seen were too expensive or unsuitable. Social Worker A told her the Council would not help with top up fees. I note, there is no evidence Social Worker A then suggested suitable care homes that were within Ms Y’s personal budget.
  14. When Ms X found a care home the family liked, Care Home B, Social Worker A told her to arrange for the care home to assess Ms Y. However, I note it is the Council’s duty to arrange care for Ms Y. Social Worker A did then suggest she could call Care Home B for Ms X, but Ms X said she would do it. There is no evidence Social Worker A gave Ms X advice on whether Care Home B was suitable for Ms Y.
  15. On 26 March Ms X asked Social Worker A why Ms Y was not eligible for EMI funding. Social Worker A explained she considered Ms Y’s needs could be met in nursing care. The Council later internally discussed and confirmed this view. Social Worker A explained to Ms X that Ms Y’s needs had changed. She was now non-mobile and her challenging behaviour could be met by nursing staff. However, she had advised the family find an EMI dual registered home in case her needs changed in future. Ms X said the social worker did not say this previously and Social Worker A apologised for the miscommunication.
  16. The social worker case notes show confusion about whether Ms Y could return to Care Home A. On 27 March Social Worker A explained to Care Home A that Ms Y’s nursing needs were that she needed the assistance of two and a hoist. And, that some residential homes may be able to provide this. Care Home A then agreed to reassess Ms Y the following day. There is no record of the assessment outcome in the case notes.
  17. Ms Y entered Care Home B on 1 April 2019. I note this placement was for nursing and EMI. The placement was due to be funded by the Council, FNC and a third party top up paid by Ms Y’s family. Although the Council sets out fees in its leaflet, the social worker case notes provide conflicting information about the cost. I also note neither Ms Y nor her family signed a contract or third party top up agreement before she entered the care home.
  18. On 16 April the Council transferred Ms Y’s case to Social Worker B.
  19. On 9 May 2019 the NHS assessed Ms Y as having no nursing needs and withdrew FNC. Ms X was unhappy as her mother’s needs had not changed since she was in hospital. Ms Y’s family said they could not afford the placement without FNC and they would appeal the decision. Social Worker B said they would support Ms Y to move to a residential placement if the decision remained the same.
  20. On 10 May Ms X contacted Social Worker B. She wanted to complain about the removal of FNC to both the Council and the NHS Clinical Commissioning Group (“CCG”). Social Worker B explained the complaint should go direct to the CCG and refused to provide her own email address. Ms X wanted the Council to be aware of the complaint but Social Worker B felt her personal email address was not secure and insisted Ms X email the CCG. Ms X says Social Worker B initially refused to provide any email address at all.
  21. On 14 May Social Worker B told Ms X and her family the final decision was to withdraw FNC. Ms X and her family were upset as they could not afford the top up fees and thought Ms Y would end up homeless. Social Worker B explained the Council would find suitable accommodation if they could not afford the fees. Ms X asked when FNC would be withdrawn and Social Worker B said once the decision was finalised. Social Worker B later confirmed this would be 28 days after the decision. However, Ms X denies she was told this.
  22. On 13 May Ms X complained to the Council about its:
    • discharge planning,
    • decision to withdraw EMI funding,
    • poor communications once the NHS withdrew FNC and,
    • decision that Ms Y should now move to a residential placement.
  23. The Council responded on 25 June. It said Social Worker A told the family to find a placement that provided both nursing and residential care as FNC may be withdrawn following assessment. It decided there was no need for EMI following the 18 March assessment. It says Ms X declined assistance in finding a care home in discussions on 27 March. It would not suggest moving Ms Y unless they could not afford the top up fees, in which case it would then look for somewhere within Ms Y’s budget. However, I note Ms X had already said the family could not afford the fees. And, the Council should have identified suitable homes within Ms Y’s personal budget at the outset.
  24. Ms X then complained to the Ombudsman. She said Social Worker A did not tell them Ms Y needed a care home with both residential and nursing care. She also did not tell them there was no need for EMI. They did not refuse the Council’s help; they visited all the care homes suggested but they refused to take Ms Y or were too expensive. She disputes Ms Y’s needs can be met in residential care. Ms X says the Council has not fully addressed her complaint and has not found a suitable care home.
  25. In December 2019 the CCG decide to reinstate FNC and backdate this.
  26. In response to enquiries the Council provided a copy of the third party top up agreement. This confirms a third party, Ms X’s sister, will pay a contribution direct to Care Home B. The agreement is signed May 2019, after Ms Y entered Care Home B.
  27. I note the top up agreement does not contain the following information required by the statutory guidance as a minimum:
    • the additional amount to be paid
    • the amount specified for the accommodation in the person’s personal budget
    • the frequency of the payments
    • provisions for reviewing the agreement


  1. I cannot question whether the Council’s decision is right or wrong simply because Ms X disagrees with it. I must consider whether there was fault in the way the decision was reached.
  2. Social Worker A assessed Ms Y and decided she did not need EMI care at that time, though her needs may change in future. Social Worker A appears to have taken account of relevant information and she has given reasons for her decision. The Council considered this further when Ms X questioned this and gave further reasons for the decision. While Ms X does not agree, I find no fault in the decision making process.
  3. Social Worker A also assessed Ms Y as needing 24 hour nursing care. However, I consider the reasons for this view are unclear as the assessment does not set out any nursing needs. Social Worker A also told Care Home A that it may be able to meet Ms Y’s needs in its residential setting. This suggests her original decision was not robust. I am therefore not satisfied Social Worker A followed a proper decision making process. This is fault.
  4. Having reviewed the documents provided I find the Council did not:
    • set a personal budget for Ms Y or inform her family of this.
    • give Ms Y’s family clear information and advice on the type of care home Ms Y needed.
    • ensure there was at least one accommodation option available, affordable and within Ms Y’s personal budget.
    • ensure Care Home B was suitable for Ms Y.
    • consider Ms Y’s personal budget when establishing the top up fee.
    • ensure Ms Y’s family had the necessary information about top up fees.
    • ensure Ms Y’s family were able to meet the top up fees, even if FNC was later withdrawn.
    • enter into a top up agreement with Ms Y’s family.
  5. The Council is at fault for not taking the actions above as required by the Care Act statutory guidance. As a result of the Council’s fault Ms X and her family were put to stress and inconvenience in finding a care home themselves and suffered distress and uncertainty when FNC was unexpectedly withdrawn. They have also suffered financial loss due to paying third party top up fees, when the Council should have found a suitable care home within the personal budget.
  6. In considering a remedy for Ms X and her family, I must try to return them to the position they would have been in, but for the Council’s fault. I therefore consider the Council should cover the full cost of Care Home B’s fees until it reassesses Ms Y and identifies a suitable care home within her personal budget. If the Council, having followed a proper decision making process, decides Ms Y should move to another care home, Ms Y’s family can then decide whether to pay a top up fee in order for her to remain in Care Home B.
  7. The Council’s booklet on fees suggests top up fees are always calculated based on the Council’s flat rates instead of on an individual’s personal budget. The booklet also tells people to contract with a care home directly regarding top up fees. This amounts to fault that may cause injustice to others.

Agreed action

  1. To remedy the injustice set out above the Council should carry out the following actions:
  2. Within one month:
    • Pay Ms X £300 for distress and uncertainty;
    • Carry out a full care needs assessment of Ms Y;
    • Refund Ms Y’s family all sums paid by them to Care Home B and pay all fees going forward, until the Council has assessed Ms Y and identified a suitable care home within Ms Y’s personal budget;
    • Take steps to ensure the Council contracts directly with Care Home B for the full fees going forward.

Within three months:

    • Provide training to relevant staff on the care planning process, to ensure they comply with the Care Act statutory guidance;
    • Review and amend its literature to ensure it complies with the Care Act statutory guidance on third party top up fees.
  1. The Council has accepted my recommendations.

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Final decision

  1. I find the Council failed to follow the Care Act statutory guidance when planning care for Ms Y, causing injustice. The Council has accepted my recommendations and I have completed my investigation.

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Parts of the complaint that I did not investigate

  1. Ms X also complains about the CCG’s decision to withdraw FNC. However, it is not within my jurisdiction to investigate this complaint. Ms X may wish to complain to the Parliamentary and Health Service Ombudsman, which is the appropriate body to consider such complaints.

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Investigator's decision on behalf of the Ombudsman

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