Summary: Mrs X complains about the Council’s handling of care charges for her mother, Mrs Y, causing financial loss and distress. The Ombudsman finds the Council failed to administer care charges correctly, causing injustice. The Ombudsman recommends the Council pays £100 for time and trouble and £200 for distress and uncertainty.

The complaint

1. Mrs X complains the Council was wrong to require third party top up fees for her late mother’s care and overcharged her mother for care, causing financial loss and distress.
2. Mrs X also complains about the Council’s decision that her mother deprived herself of assets.
3. Mrs X complains on behalf of her brother, Mr Z, who paid the third party top up fees and is executor of their mother’s estate.

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What I have investigated

4. I have investigated the complaints at paragraph 1. At the end of this decision I have explained why I have not investigated the complaint at paragraph 2.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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

8. I spoke to Mrs X and I reviewed documents provided by Mrs X and the Council.
9. Of relevance to this draft decision, I have seen:
• the complaint correspondence between Mr Z and the Council;
• internal Council correspondence;
• correspondence between the Council and the Care Home;
• an incomplete copy of the Council’s case notes for Mrs Y, from 2012 to 2017;
• the Council’s assessments of Mrs Y, dated 2014 and 2017.
10. I gave Mrs X and the Council the opportunity to comment on a draft of this decision.

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What I found

Care Act statutory guidance

Care charges

11. The principles are that the approach to charging for care and support needs should:
• ensure that people are not charged more than it is reasonably practicable for them to pay
• be comprehensive, to reduce variation in the way people are assessed and charged
• be clear and transparent, so people know what they will be charged
• promote wellbeing, social inclusion, and support the vision of personalisation, independence, choice and control
• support carers to look after their own health and wellbeing and to care effectively and safely
• be person-focused, reflecting the variety of care and caring journeys and the variety of options available to meet their needs
• apply the charging rules equally so those with similar needs or services are treated the same and minimise anomalies between different care settings
• encourage and enable those who wish to stay in or take up employment, education or training or plan for the future costs of meeting their needs to do so
• be sustainable for local authorities in the long-term

Choice of accommodation

12. The council must ensure that the person has a genuine choice of accommodation. It must ensure that at least one accommodation option is available and affordable within the person’s personal budget and it should ensure that there is more than one of those options. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party is willing and able to pay the additional cost (‘top-up’).

Arranging accommodation for self funders

13. A person with capital above £23,250, can ask their council to meet their needs and arrange their care, but it is not required to do so. If the council chooses to meet needs in a care home, the same rules on choice must apply.
14. In supporting self-funders to arrange care, the council may choose to enter into a contract with the preferred provider, or may broker the contract on behalf of the person. Where the council is arranging and managing the contract with the provider, it should ensure that there are clear arrangements in place as to how the costs will be met, including any ‘top-up’ element.

Third party top ups

15. The personal budget is the cost to the council of meeting the person’s eligible needs. The council must have regard to the actual cost of good quality care in deciding the personal budget to ensure that the amount is one that reflects local market conditions. The council should not set arbitrary amounts or ceilings for particular types of accommodation that do not reflect a fair cost of care.
16. A person must not be asked to pay a ‘top-up’ towards the cost of their accommodation because of market inadequacies or commissioning failures and must ensure there is a genuine choice.
17. 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. Therefore 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’
18. Before entering into the agreement, the council must provide the person paying the ‘top-up’ with sufficient information and advice to ensure that they understand the terms and conditions, including actively considering the provision of independent financial information and advice.

Price increases

19. The council will need to review arrangements in response to any changes in circumstances of the cared for person, the person making the ‘top-up’ payments commissioning arrangements or a change in provider costs. The council must set out in writing how these changes will be dealt with.
20. The council must clearly set out in writing its approach to how any increased costs may be shared. This should also say there is no guarantee increased costs will automatically be shared evenly should the provider’s costs rise more quickly than the amount the council would have increased the personal budget and there is an alternative option that would be affordable within that budget.
21. A council may wish to negotiate any future prices rises with the provider at the time of entering into a contract. This can help provide clarity for adults and providers and help ensure that the top up remains affordable.

What happened

22. Mrs Y was in residential care. In 2012 the Council assessed Mrs Y and decided she was self funding; she would pay the full costs of her care.
23. In February 2014 Mrs Y moved to the Care Home, paying the full costs of care herself. The Council does not have records from this time. However, I have not seen any evidence to suggest the Council arranged this placement.
24. In August 2014 Mrs Y’s family told the Council she would soon drop below the capital limit and they needed help with funding.
25. In November 2014 the Council assessed Mrs Y to see if she was eligible for residential care and if she was appropriately placed at the Care Home. The Council found Mrs Y was eligible for its residential rate of £416.72. Its assessment makes no reference to dementia care. Its records show Mrs Y was settled in the Care Home. The family were happy with the Care Home and agreed to pay a top up fee of £17 per week, making the total payable £434 per week. There are no records to show if the Council offered another care home within Mrs Y’s personal budget. However, I also cannot say whether the family would have agreed to move Mrs Y to another care home in the circumstances.
26. In February 2015 the Council completed a financial assessment and decided the Mrs Y was now a self funder. It intended to stop the care package on 30 March 2015, with Mrs Y then paying the full costs of her care direct to the Care Home. However, it did not action this. Instead it continued to pay the Care Home and then invoiced Mrs Y the sums paid.
27. The Council’s records show it invoiced Mrs Y based on its standard residential rate until April 2016. From 1 April 2016 it appears to have invoiced Mrs Y an increased sum based on its dementia rate. However, I have not seen any assessment or other record to support this change.
28. In June 2017 the Council stopped Mrs Y’s care package with effect from 30 March 2017. There is no evidence it told Mrs Y or her representative.
29. The Council gave Mrs Y a refund of the sums she had paid to the Council since 30 March 2017 because she needed to pay the Care Home direct from that date. There is no evidence the Council explained this to Mrs Y or her representative.
30. In August 2017 Mrs Y unexpectedly received a bill from the Care Home showing she was in debt. She paid this invoice.
31. In August 2017 Mr Z asked the Council to fund Mrs Y’s care again as she was due to drop below the capital limit.
32. The Council assessed Mrs Y in October 2017. This assessment refers to her earlier diagnosis of dementia and outlines how this impacts upon her needs. It says her current placement is £525.38 per week at the dementia rate with a £17 per week third party top up.
33. In November 2017 Mrs Y passed away.
34. On 5 January 2018 Mr Z complained to the Council. In summary he said:
• the Care Home had charged Mrs Y £434.00 per week throughout, as evidenced by a statement of account from the Care Home. But, the Council had invoiced Mrs Y for a greater sum. This has resulted in an overpayment of £6952.20.
• the Council did not inform him of the reason for any price increases or gain consent.
• the Council gave Mrs Y a refund in June 2017 without explanation.
• the Council stopped paying the Care Home without notice in June 2017, resulting in a debt accruing.
• the Council claimed money from Mrs X’s account in August 2017 without explanation.
35. The Council acknowledged the complaint on 19 February but said it needed a further 20 days to reply. It apologised for the delay.
36. On 12 April Mr Z chased a response and the Council apologised again.
37. The Council responded on 7 June 2018. In summary:
• It apologised for its delay.
• It said it had paid the rates set by the Care Home to the Care Home. The care charges increased annually each April.
• Once Mrs Y became a self-funder in 2015 she should have paid the Care Home directly. But the Council did not update its system until June 2017 and then it only backdated charges to February 2017 instead of February 2015.
• It gave Mrs Y a credit for invoices paid from February 2017. She should have paid the Care Home directly thereafter. A social worker should have told them this.
• If it had acted correctly Mrs Y would have paid the Care Home privately from March 2015 which would have cost her more.
• There is no evidence it tried to claim back any amount in August 2017.
• It apologised for errors and would learn lessons from the complaint.
38. Mr Z responded to the Council on 20 June. In summary he said:
• The Care Home charges remained at £434 per week throughout.
• The Council overcharged Mrs Y from April 2016 to March 2017 as Mrs Y paid the Council more than £434 per week.
• The Council claimed back fees paid to the Care Home in August 2017 which resulted in Mrs Y being in debt.
39. The Council provided a further response on 13 September 2018. It said:
• The delay in its response was due to it awaiting a response from the Care Home. This in turn was delayed due to staff annual leave.
• The Care Home says it gave Mr Z incorrect information regarding the fees being £434 per week.
• It paid the Care Home the amount it understood was agreed.
• It correctly charged Mrs Y the same amounts it paid to the Care Home.
• It has not overcharged Mrs Y or overpaid the Care Home.
40. On 4 January 2019 Mr Z’s solicitor contacted the Council. He said:
• The Council overpaid the Care Home. If the Council stopped paying for care in February 2015 as it should have done, Mrs Y would only have paid £434 per week.
• The Council charged a top up fee but it never offered accommodation within Mrs Y’s personal budget and so it should not have charged this.
• The family disputes the Council’s financial assessment of 2012 and its decision on deprivation of assets.
41. In response to enquiries the Council provided me with copies of the records available, including care assessments and social worker case notes.
42. I note correspondence from the Care Home makes no reference to Mrs Y having received dementia care. The Care Home says it has a basic fee of £475 per week which may be increased depending on the person’s needs. Based on Mrs Y’s needs it suggests she would have paid more than £550 per week for her care if she paid privately. I note this exceeds the sums paid by the Council.

Findings

43. Mrs X says Mr Z was unaware of any fault by the Council regarding the Care Home charges and top up fees until 2018, when he became executor of Mrs Y’s estate and sought legal advice. He then completed the Council’s complaints process before contacting the Ombudsman. Bearing this in mind and, as there may be fault by the Council, I consider there is good reason to exercise discretion to investigate these late complaints.
44. There is no evidence the Council arranged the placement when Mrs Y first moved into the Care Home. When the Council became involved, in November 2014, it should have offered a care home within Mrs Y’s personal budget. Due to a lack of records, I cannot say whether the Council did so. But, given the time passed I do not find the lack of records amounts to fault. I also consider it unlikely Mrs Y’s family would have moved her from the Care Home even if a cheaper option were available. I therefore find no fault causing injustice regarding the third party top up fees.
45. Due to a lack of records I cannot say if the Council gave Mrs Y or her family information about price increases in 2014. However, I find any fault did not cause significant injustice for the reasons below.
46. The Council accepts it did not tell Mrs Y to arrange and pay for her own care from February 2015 as it should have done. This is fault.
47. The Council paid the dementia rate for care from 1 April 2016. In the absence of any suitable explanation this appears to be fault.
48. The Council stopped Mrs Y’s care package in March 2017 without warning Mrs Y or her representative that it would do so or the implications of this. I find this amounts to fault.
49. Although the Council may have overpaid the Care Home from 1 April 2016, the Care Home confirms it would have charged Mrs Y more had she paid directly. I note it is common practice for care homes to charge more for private placements. I therefore cannot say the Council’s faults caused Mrs Y any financial loss. However, the Council’s actions have caused Mr Z distress and uncertainty.
50. The Council delayed in responding to Mr Z’s complaints and it did not provide enough information to address his concerns, leading Mr Z to complain further. I consider this amounts to fault. Mr Z was put to time and trouble as a result.

Agreed action

51. To remedy the injustice set out above I recommend the Council carry out the following actions within one month of the date of my decision:
• Pay Mr Z £100 for time and trouble;
• Pay Mr Z £200 for distress and uncertainty.

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Final decision

52. I find the Council failed to manage Mrs Y’s care charges properly. 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

53. I did not investigate Mrs X’s complaint about the Council’s decision on deprivation of assets. The Council decided this in 2012. Mrs X and Mr Z were aware of its decision but decided not to pursue this further. I consider there is no good reason to exercise discretion to investigate this late complaint.

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Investigator's decision on behalf of the Ombudsman