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Essex County Council (19 020 100)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 07 Dec 2020

The Ombudsman's final decision:

Summary: Mr C complained the Council required him to pay twelve weeks of top up payments in advance, so he could ensure his mother-in-law could live in the care home of her choice. He said this left a large dent in his personal finances. We found the Council was at fault for requiring the payment of a 12 weeks ‘security deposit. During the course of the investigation, the Council took steps to review its policy and remedy the fault by repaying 8 weeks of the advance payment to Mr C and others similarly affected.

The complaint

  1. The complainant, whom I shall call Mr C, complains it was wrong for the Council to insist, as part of the Top Up Agreement, that he had to pay 12 weeks of top up payments in advance. In his case this was an amount of £9,934, which is being held by the Council as a deposit. This has left a large financial dent in his personal finances.

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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. 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 considered the information I received from Mr C and the Council. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received, before I made my final decision.

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What I found

Legal background

  1. The Care and Support Statutory Guidance says that:
    • Where a council is intending to meet an individual’s needs by providing accommodation, and the individual has expressed a preference for a particular accommodation that is more expensive than the amount the Council allocated in the person’s personal budget, it must arrange for the provision of the preferred accommodation if the relevant criteria under the 2014 Regulations are met.
    • The additional cost condition is set out in regulation 5 of the 2014 Regulations and requires that:
        1. The payer of the additional cost (the top-up fee) is willing and able to pay the top-up fee for the preferred accommodation, for the period during which the Council expects to meet the individual’s needs; and
        2. The payer enters into a written agreement with the Council to pay the top-up fee
  2. Any such written agreement must include details of: (i) the consequences of the payer ceasing to make top-up fee payments; and (ii) the effect of a change in the payer’s financial circumstances. Any unpaid top-up fees (along with other charges or fees) may be recovered by the Council as a debt, in civil proceedings, pursuant to section 69 of the 2014 Act.
  3. Statutory guidance on the payment of top-up fees, to which the Council must have regard, is set out in Annex A of the CASS Guidance. Particularly relevant is Annex A, para. 25: “Ultimately, if the arrangements for a ‘top-up’ were to fail for any reason, the local authority would need to meet the cost or make alternative arrangements, subject to a needs assessment. Further details are set out below in the consequences of ceasing to make payments. Local authorities 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.”
  4. It is clear, therefore, that CASS Guidance envisages that the risk of non-payment of top-up fees rests with the Council (rather than the payer), subject only to the requirement for the Council to be satisfied that the payer is willing and able to pay the fee for the duration of the preferred accommodation being required.

What happened

  1. In November 2019, Mr C chose a care home for his mother-in-law that was more expensive (£1,300+ a week) than her personal budget of £585 a week. He told me that he accepted the Council may wanted a deposit, but he did not believe it was fair to ask for a deposit payment that was 12 weeks of top ups. In his case this amounted to £9,934, which left a large hole in his finances.
  2. The Council told me it had recently decided to introduce this new policy, in which it asked for a twelve-weeks top up deposit. It told me that it did this, because top up payers sometimes decide to stop paying the top up. It will then take the Council on average 12 weeks to rehome a client to a cheaper care home. In such circumstances, the Council would use the deposit to cover the top up until the client has moved to a cheaper care home.
  3. Mr C made a Freedom of Information (FOI) request to the Council. It showed the Council introduced this new policy in October 2019. The Council says it was introduced as part of a new “Integrated Residential and Nursing Framework Contract”. However, I was unable to find any information on the Council’s website about this. There was some general information about charging for residential care, but I did not find a copy of the Council’s Charging Policy for Residential Care or information about the right to choose a more expensive care home or top ups.
  4. Mr C also asked the Council to provide data with regards to how long it usually takes the Council to move a client to another home, if a top-up stops. The Council’s response said it usually takes three months, but it did not provide supporting evidence.
  5. It was also unclear how often a top up agreement actually breaks down.
  6. In response to my enquiries, the Council has told me that:
    • It accepted that, in the circumstance of this case (the top up resulting in an advance payment of £9,934), the requirement of a 12-week advance payment was too onerous and could have impacted on choice.
    • It had written to Mr C offering to lower the deposit to 4 weeks and refund the difference. It has since told me that Mr C accepted this and has received the refund.
    • It has also offered Mr C an ex-gratia payment of £150 to remedy the time he has spent and any inconvenience he suffered bringing his complaint to the Ombudsman. It has since told me that Mr C accepted and received this.
    • It would carry out a full review of the 12-week advance payment requirement, with a view to implement alternative and/or supplemental requirements. It has since told me that this review has now started.
    • The Council would also consider the impact of its new policy on those agreements that had already been implemented. It has since told me that it would offer a similar 8-weeks refund to 26 other service users affected by the new policy.

Analysis

  1. Neither the Care Act statutory scheme, nor the CASS Guidance, provides any clear authority for the Council to require a security deposit be paid as a condition of entering into a top-up fee arrangement. To the contrary, the 2014 Regulations provide that the Council must agree to a preferred choice of accommodation if the criteria in those regulations are satisfied, and the CASS Guidance suggests that the risk of any non-payment is to be borne by the Council (subject to it being able to recover any outstanding fees as a debt).
  2. One of the main principles of the Care Act 2014 is to promote genuine choice of accommodation and secure their preferred accommodation. I found that the Council’s approach, of requiring a (12-weeks) top-up fee deposit, does not comply with the Care and Support Statutory Guidance and the Care and Support and After-care (Choice of Accommodation) Regulations 2014. If the Council is requiring a 12-week deposit to be paid up front before agreeing top-up fee arrangements, it is likely to impact the person’s choice or ability to secure their preferred accommodation. The Council has not provided any clear reasons for its departure from the CASS Guidance, and has since agreed to review and modify the requirement to a four-week deposit. We have not seen evidence that a change to four weeks, would prevent cared for people from expressing a genuine choice of accommodation.

Agreed action

  1. I recommended that, within eight weeks of my decision, the Council should:
    • Complete the review of its policy of top up deposits, with a view of reducing it.
    • Complete the repayment of eight weeks of top up deposits to other service users who signed a top up agreement that included this requirement.
    • Provide more information online about its charging policy, choice of accommodation and top ups.
  2. The Council told me it accepted my recommendations.

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Decision

  1. For reasons explained above, there was fault in the actions of the Council.
  2. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case

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Investigator's decision on behalf of the Ombudsman

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