Summary: Mr B complains that he was not told about a top-up fee when his mother moved into Royley House Care Home. The Council had already upheld most of Mr B’s complaint and remedied some of the fault. The Council has now agreed to repay all the top-up fees the family has paid and this is an appropriate remedy for the fault.

The complaint

1. Mr B complains on behalf of his mother, Mrs C about the Council and Royley House care home in Royton, Oldham. He says he was not told about top-up fees when Mrs C moved into the care home and the family was unable to pay the top-up fee.

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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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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

6. I have discussed the complaint with Mr B. I have considered the documents that he and the Council have sent, the relevant, law, guidance and the Council’s policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

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 duties towards adults who require care and support and its powers to charge. The Council also has its own policies.

Care plan and personal budget

8. If a person has support needs then the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which sets out the costs to meet the needs.

Top-up fees

9. If a person’s needs are met in a care home and the council is funding the care home fees, the council must ensure that at least one care home 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 (the top-up fee).

Duties for the council

11. The CASS Guidance sets out the council’s duties relating to top-up fees and agreements. The council should:
• Provide the third party with sufficient information and advice to support them to understand the terms of the proposed written agreement before entering into it.
• Ensure the person is willing and able to meet the top-up fee, recognising that this may be for some time in the future.
• Ensure the person enters a written agreement with the council, agreeing to meet the cost.

Securing the funds

12. A local authority has 3 options:
• Treat the top-up fee as part of the person’s income and therefore recover the costs from the person concerned through the financial assessment.
• Agree with the person, the third party paying the top-up fee and the care home that the top-up fee can be paid directly to the care home. However, this is not recommended.
• The person pays the top-up fee to the local authority. The local authority then pays the full amount to the care home.
13. The Guidance says local authorities should deter arrangements for top-up fees to be paid directly to the care home.

Council’s policy

14. The policy says:
• The council’s Client Finance Team will be responsible for assessing the financial sustainability of any top-up fee prior to the placement being confirmed.
• Where the assessment identifies that the top-up cost is sustainable, the payer will be required to enter into a written agreement between themselves and the Council.
• Where the cost of the top-up fee increases, a new assessment of sustainability must be completed before entering into a revised written agreement.

What happened

15. Mrs C was admitted to hospital on 16 November 2017. She was already a resident at another care home but said that the care she received there was poor.
16. The social worker assessed Mrs C’s needs and agreed Mrs C should move to a different care home.
17. The family found Royley House and the social worker sent her assessment of Mrs C’s needs to Royley House on 17 November 2017. The Home assessed Mrs C on 21 November 2017 and the Home confirmed it could accept Mrs C. Mrs C moved to the Home on 24 November 2017.
18. Mr B says he was not really involved in the move, but his niece was. He says neither the social worker nor the Home ever discussed top-up fees with him or with his niece or any other member of the family. The Council admits there is no record of the social worker having a conversation with the family about the top-up fee.
19. Mr B signed an agreement with the Home after Mrs C moved in. This document includes the terms and conditions and the third-party contribution agreement. The weekly cost is handwritten as ‘social services + £25 top-up’.
20. The Home contacted the family in July 2018 and said the family owed £900 in top-up fees which had not been paid. Mr B’s niece informed the Council. The niece said neither she nor her mother (Mr B’s sister) had been aware of the top-up fee. She wanted to know who should pay this fee and she was concerned that the Home would evict Mrs C.
21. Mr B says that he and his sister then agreed to pay the top-up fee and the arrears between them as the Home had threatened to evict Mrs C. He says the Home told him that the top-up fee had increased from £25 to £50 but the Home agreed to move Mrs C to a different room which had a lower top-up fee of £30. Mr B and his sister started to pay off the arrears at a rate of £20 per month from July 2018.
22. The Home wrote to Mr B on 1 March 2019 and said it would increase the top-up fee by £10 a week.
23. Mr B contacted the Council to complain. He said the family knew nothing about the top-up fee when Mrs C moved in and the family could not afford the top-up fee.
24. Mr B wrote to the Home and said he had written to the Council asking to investigate the top-up fee and said he and his sister could no longer afford the cost and they would reduce what they were paying.
25. The Home responded and said Mr B should look for an alternative home for Mrs C as there would be increases in the top-up fee every year.
26. The Council initially said the top-up fee was not something it could become involved in. On 14 March 2019 the officer said:
• ‘As a Council, we negotiate a contracted fee each year with all the care homes that we commission to within the borough. As a Council once these fees are agreed, we will not commit to any further funding. Some of the homes then decide to levy a top up fee, this is something that we cannot control and the agreement is between the home and the family.’
27. Mr B says he received many calls from the Home in the following weeks asking for payment of the fees and threatening eviction.
28. The Home sent a further email on 26 March 2019 and said the Council had told them there was nothing to investigate. The Home said: ‘… the local authority does not control any aspect of the third party top up contribution.’
29. The Home sent a further email saying that, as Mr B would not pay the top-up fees, it would contact the Council to ask it to re-assess Mrs C so she could move to another care home. However, the outstanding debt would still have to be paid and, if Mr B refused to pay, the Home would take legal action.
30. The Council re-assessed Mrs C’s needs and she moved to a different care home. The Council also agreed to investigate Mr B’s complaint.

The complaint

31. In March 2019 Mr B said:
• Neither he nor the family were informed about the top-up fee when Mrs C moved in.
• The Home did not chase the top-up fee until a substantial debt had accrued.
• He signed the agreement with the Home thinking the fees were met by the Council, as they had been before.
• He thought the Home added the handwritten £25 top-up fee to the document after he signed it. The agreement said his signing of the agreement had been witnessed by the Home’s employee. But that was not true, as the Home sent him the document by post and he then signed it at home and sent it back. The Home then added the witness’s signature.
• The family would not have agreed to the placement if they had known about the top-up fee.
32. The Council responded in October 2019 and said:
• There was no evidence that the social worker explained top-up fees to Mr B or informed him that he would have to pay a top-up fee.
• The social worker should have referred Mr B to the Finance team for a financial sustainability assessment and this assessment would have identified whether a top-up fee was affordable to him.
• Mr B entered into a private agreement with the Home. The Home should have informed the Council of this agreement, but the Home did not do this.
• It had liaised with the Home. Mr B would not have to pay the outstanding amount he owed and he would be reimbursed for the top-up fees he had already paid.
• The Council had identified service improvements because of his complaint. It would issue a service wide reminder to staff about the documentation and communication relating to top-up fees. It would write to providers to remind them of their duty to inform the Council of any private arrangement in place with a third party.
33. The Council wrote to Mr B in February 2020 and said:
• The Council had settled the top-up fee debt the family owed to the Home (£1,099).
• The Home had obtained a CCJ against Mr B and this would be removed.
• The Council had previously agreed to repay the top-up fees that Mr B had already paid. This was an error and the letter should not have been sent to Mr B. The Council became aware of the top-up agreement in March 2019. It should have done a financial suitability assessment at that stage, but failed to do so. Therefore, it agreed to pay the top-up fees from that date.
• However, it had no prior knowledge of the private agreement before that date and therefore could not be held liable for payments before that date.
• It was in the process of reminding care homes of informing the Council if top-up fees were being considered so the Council could complete the required assessments.
• It offered Mr B a fee of £250 for the time and trouble he experienced in pursuing his complaint.

Response to the Ombudsman

34. I asked the Home and the Council to provide further comments to the Ombudsman about Mr B’s complaint.
35. The Home said:
• It received a letter from the Council saying that the Council would no longer collect third party top-up fees so it assumed that top-up fees had to be dealt with by the care home.
• The Council had not properly explained the top-up fee process to the Home.
• The Home only found out about the requirement of a financial assessment after Mr B’s complaint. The social workers had never explained that to the Home.
• The Home always informed everyone about top-up fees before admission.
• The Home had sent a letter to Mr B informing him that the top-up fee increased in 2018.
36. After receiving these comments, I asked the Home to send me copies of the two letters it referred to. It was unable to do so.
37. The Council said:
• In March 2017 the Council sent a letter to all care homes that clearly set out that a top-up fee agreement was between the Council and the third-party payer and that the Council was responsible for the entire fee including the top-up fee. The Council has sent me a copy of this letter.
• All providers were invited to attend quarterly provider forums which the Council attended and where updates were shared.
• The Council had visited the Home in January 2020 to clarify the process and to ensure the provider followed the top-up fees process for all future placements.
• In reviewing the notes, the Council realised that it had been informed of the top-up fees in July 2018 when Mr B’s niece rang the Council. Therefore, it proposed to refund payments the family made from that date instead of the March 2019 date it had originally proposed. This would mean that the Council would refund Mr B and his sister £1,162 which they had paid towards the top-up fees.
38. I asked the Council whether the Council had offered Mrs C at least one care home which would meet her needs and which did not charge a top-up fee in November 2017. The Council said it did not direct a family to a particular care home. Instead, it referred families to a local charity which gave independent advice on choosing a care home. This charity has a list of care homes with and without top-up fees.
39. I checked this list for a random week in October 2020 and found 13 care homes with vacancies without a top-up fee in the area. Of course, I do not know how many care homes without a top-up fee featured on the list when Mrs C moved in November 2017, but I accept that there were probably a few homes. The family’s complaint is not that the Council did not offer them a home without a top-up fee but rather that it provided no information about the top-up fee or the implications.

Analysis

40. The Council has already largely upheld Mrs C’s complaint about its actions in November 2017 and I agree there was fault.
41. The Council does not appear to have provided Mrs C or the family with much assistance apart from referring them to the list of care homes.
42. There is no evidence that there was any further conversation about the finances or the top-up fees once the family had identified Royley House. The Council failed to explain what a top-up fee was or to check whether Royley House was within Mrs C’s personal budget. The Council did not carry out a financial viability assessment of Mr B or offer him a top-up agreement. Therefore, the Council failed to act in line with the CASS Guidance and its own policies and this was fault.
43. I was also concerned about the Council officer’s comments on Mr B’s complaint in March 2019 which said the Council did not become involved in top-up fees which was not correct. However, the Council’s final complaint response was correct and clear about the Council’s role in terms of top-up fees.
44. There was also fault in the Home’s actions.
45. There are no records relating to the conversations the Home had with the family before Mrs C moved in. The Home has not provided any evidence that it informed Mrs C’s niece or Mr B of the top-up fee or the implications of the top-up fee agreement. It is difficult for me to comment on whether the Home added the £25 top-up fee to the contract after Mr B signed it or before.
46. However, I believe Mr B when he says he had not been informed that, by signing the agreement, he was agreeing to pay a top-up fee. Therefore, there was fault in the Home’s communication with Mr B about the top-up fee.
47. The Home should have informed the Council that it planned to charge a top-up fee. There is no evidence it did this and this is fault.
48. The Home should not have negotiated a top-up agreement directly with the family, without any involvement of the Council and this is further fault.
49. The Council has provided evidence that it explained the correct top-up fee process to care homes in its area. I therefore do not accept the Home’s claim that its failure to follow the correct procedure in relation to the top-up fee was the Council’s fault. I am of the view that the Home should have been aware of what the procedure was and failed to follow it.
50. I have also considered the complaint that the Home did not tell Mr B that it increased the top-up fee sometime in March/April 2018. The Home says it sent a letter to Mr B informing him of this, but cannot provide any evidence of the letter.
51. Mr B says he did not receive that letter and did not find out about the top-up fee until July 2018. As there is no evidence of a letter, I conclude on the balance of probabilities, that the letter was not sent and this was fault.

Injustice and remedy

52. I have considered the injustice caused by the fault and how it can be remedied.
53. I note that the Council initially said it was not responsible for the failings of the Home. I have already explained that I agree that part of the fault lay with the Home, not the Council.
54. Nevertheless, from the Ombudsman’s point of view, when a council commissions another organisation to provide services on its behalf, it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the Home, the Council remains responsible and it is the role of the Council to put things right.
55. The main injustice are the top-up fees that were paid and were owed. I note that the Council already settled the top-up fees the family owed. In its response to the Ombudsman the Council then agreed to repay all the top-up fees the family had paid. The Council has also apologised for the fault. Those are appropriate remedies for the injustice suffered.
56. Mr B also suffered distress through the stress of a threatened eviction and the fact that he had to pursue his complaint with the Council. The Council has paid Mr B £250 and that is an appropriate remedy for the injustice.
57. I have also considered whether the Ombudsman should recommend service improvements to ensure that similar mistakes are not made again.
58. I note that the Council has already made service improvements to remind its own staff of the top-up fees policies. The Council has also written to care homes to remind them of the correct rules. Those are appropriate actions and I do not recommend further service improvements.
59. In terms of Royley House, the Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
60. The CQC is therefore best placed to address any concerns about the Home’s actions and I will share this decision with the CQC.

Agreed action

61. The Council has agreed to repay the top-up fees Mr B and his sister paid to the Home. I would expect the Council to do this within one month of the final decision.
62. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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Final decision

63. There was fault and the Council has agreed to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman