Warwickshire County Council (20 003 583)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 26 Feb 2021

The Ombudsman's final decision:

Summary: The Council failed to offer an available and suitable nursing home within the individual’s personal budget. The individual moved to a care home above their personal budget. The Council should have covered the full cost and not asked for a top-up payment, because there was no suitable alternative. The Council will waive the top-up and apologise for its poor financial information. The Council will remind staff to clearly document the availability and suitability of care homes, provide simple and clear financial advice, and show it has met its duties under the Care Act 2014.

The complaint

  1. The complainant, who I will call Mr B, says the Council did not explain the finances when his father, Mr C, moved into a nursing home. Mr B says the process was not joined up, they received lots of information from different people with no clear communication about how it all lays together, and it was very confusing. The family did not realise there was both a top-up payment and a client contribution.
  2. The home the family chose was the only suitable placement that was available, but it was above budget, so they had to pay towards it. The Council did not offer an available, suitable home within Mr C’s personal budget. Mrs C visited the homes the Council suggested, but some did not take residents with dementia, some were too far away for family to visit.
  3. The process to discharge Mr C from hospital was rushed; the family received conflicting financial information and did not receive good information and advice. The Care Provider wrote to the family saying the Council was funding £899 per week and the service user just had to pay a client contribution. The Council said it was funding £491 per week, so Mr B signed and agreed a third-party top-up of £407 per week. Mr B says the Council never considered increasing the personal budget to meet his father’s needs and failed to comply with the Care Act. Mr B says the process was confusing, stressful and upsetting, when the family should have been able to concentrate on his father. Mr B would like the Council to waive the top-up charges and apologise.

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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:
    • Information provided by Mr B, including during a telephone conversation.
    • Information from the Council in response to my enquiries.
    • The Care Act 2014 and associated statutory guidance (Care and support statutory guidance issued by the Department of Health & Social Care).
  2. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

  1. Mr C lived in a care home. Mr C was taken to a hospital under Section 2 of the Mental Health Act for assessment following some challenging behaviour. The care home where he lived said it could not manage his behaviour and it could not have him back. When the hospital was ready to discharge Mr C, the Council was involved in planning where he would go.
  2. The Council is responsible to complete an assessment of the person’s care and support needs and how any eligible needs will be met, consider whether the person has the mental capacity to make decisions about their care support, and assess what if anything the person can afford to pay towards their care and support.
  3. The Council completed a care needs assessment; Mr B and Mrs C were present. The Council assessed Mr C needed a nursing home placement, and he did not have capacity to decide where to live. Mrs C asked for a placement that she and Mr B could easily visit. The Council did not document whether this was required, but its assessment of Mr C said he needed support to maintain family and personal relationships.
  4. The Council must then give Mr C his estimated personal budget, that is how much the Council has allocated to meet the person’s assessed needs. Mr C’s review document specified a personal budget of £452.00, though the document also said finances were discussed and residential care home costs were £899 per week, the Council’s rate was £491.54 to which Mr C may need to contribute depending on financial assessment, and a third-party contribution of £407.46 was required. It therefore seems at an early stage the Council knew the estimated personal budget of £452.00 was not sufficient to meet Mr C’s need for a residential care home suitable for those with dementia. Council’s should not have arbitrary ceilings to personal budgets and should not have a ‘one size fits all’ approach. The personal budget must be enough to meet the individual’s needs.
  5. The final amount of the personal budget will be confirmed throughout the care planning process. The overall cost must then be broken down into the amount the person must pay following the financial assessment, and the remainder of the budget that the authority will pay. The Council completed a financial assessment to confirm how much Mr C must pay towards his care, but I have seen no evidence of a breakdown of the personal budget showing how much Mr C pays and how much the Council pays.
  6. Care decisions are often made quickly and at a time of crisis, and they can often involve family and friends in the process. The local authority must have regard to the importance of identifying those who may benefit from financial advice or information as early as possible. The Council must help people to understand care charges.
  7. The Council has various information leaflets available explaining the care assessment and support planning process, and the financial implications of care including client contributions and third-party top-ups, and has a leaflet called residential care. The Council says it shared this information with Mr B when Mr C moved into residential care (before he went into hospital and moved to the care home subject to this complaint).
  8. The Council must offer at least one accommodation that is available and affordable within the person’s personal budget. A person can choose alternative options, including a more expensive setting, where a third party is willing and able to pay the extra cost (top-up).
  9. The Council’s records show it suggested seven nursing homes that had availability, five of the seven were not within Mr C’s personal budget. The records do not state the cost of the other two homes, but one was not suitable as would not take Mr C. The website of the other care home says it is not suitable for people with early stage or advanced dementia.
  10. Mrs C visited various homes suggested by the Council, she says they were not suitable for various reasons including distance or that they did not take people with dementia.
  11. Mrs C visited one of the homes suggested by the Council, and decided this home was suitable. The care home’s cost was above Mr C’s personal budget. The Council explained it would need a £407.46 top-up per week, which Mrs C said they would pay.
  12. The Council’s records show a funding decision which says, “At this point we do not feel there is another alternative and also the wife has made an explicit choice that she felt [the care home] was a compassionate care home to be able to support [Mr C].”
  13. The Council sent Mr B an ‘Individual Placement Agreement’ (IPA) setting out what the parties agree to pay. This documents the customer’s personal budget (which includes the customer’s assessed weekly contribution) and extra cost by a third-party contributor. Mr B signed and agreed to pay £407.46 per week as a third-party contributor, this is the top-up. The IPA did not set out what the customer contribution is, which is what Mr C would pay. Mr B believed the personal budget was the total amount the Council would pay.
  14. Mr C originally moved to the care home in February as a temporary resident to allow his discharge from hospital and plan his long-term care. Mr C’s stay became permanent a few weeks later. The Council completed financial assessments for the temporary and permanent stay, which determined how much Mr C would pay towards his care. The Council sent these to Mr B in April.
  15. The family very quickly made a complaint to the Council that they did not understand the financial situation or the full amount they would have to pay. Mr B had not understood there was both a client contribution and a third-party top-up to pay for Mr C’s care.
  16. There will be cases where a person or a third party on their behalf is making an additional payment (or a ‘top-up’) to be able to secure the care and support of their choice, where this costs more than the local authority would pay for such a type of care. In these cases, the additional payment does not form part of the personal budget since the budget must reflect the costs to the local authority of meeting the needs. However, the local authority should consider how best to present this information to the individual, so that the total amount of charges paid is clear, and the link to the personal budget amount is understood.

Was there fault causing injustice?

  1. I have seen evidence the Council gave Mr C his indicative personal budget, but no evidence of the final personal budget breaking down what the Council will pay and what Mr C will pay. This is fault as is not in line with the care and support statutory guidance.
  2. The care and support statutory guidance say the personal budget in the plan will give everyone clear information regarding the costs of their care and support and the amount the local authority will make available to help people make better informed decisions as to how needs will be met. The guidance requires councils to present choices simply and clearly, including the total amount of charges. I have not seen evidence of any simple and clear explanations to Mr B about Mr C’s personal budget and care costs, or how the top-up amount links to the personal budget and client contribution.
  3. Mr B explains they thought the personal budget was the total amount the Council would pay, and the family would then ‘top-up’ the remainder of the nursing home’s cost. The family did not realise there was a client contribution and a top-up. There is no evidence the Council explained this to the family, this is fault.
  4. The family quickly made a complaint when the issue came to light, which evidences they were unclear. I also note it was a pressured situation to find a placement to enable Mr C’s discharge from hospital, where he was blocking a bed as was medically fit for discharge. It is therefore more likely than not the family’s comment about it being rushed is how it felt to them, and further support and clarity from the Council would have been welcomed.
  5. The Council has good general guidance available but must also provide individual guidance to help people understand their care charges and the options available to them. The Council told Mr B of Mr C’s estimated personal budget, the amount of the third-party top-up, and the amount of Mr C’s personal contribution. But this information was presented piecemeal over two months and was never joined up and presented as one simple and clear document once the total amounts were established.
  6. The Council’s records do not specifically show a care home that required family to travel some distance to visit it would be unsuitable. However, its assessment of Mr C’s needs showed he always needed support to maintain family and personal relationships. To enable this to happen it is more likely than not that a care home that made it difficult for family to visit would be unsuitable. There is no evidence the Council disputed Mrs C’s views on this issue, and that certain care homes were unsuitable because of distance.
  7. The Council’s records do not evidence it offered an available and suitable home. Of the seven placements offered, five were over budget. The two remaining do not appear to be suitable homes, one said it could not take Mr C so was clearly not a suitable and available option. I have looked at the one remaining care home’s website which says it does not take people with dementia. So, I find it more likely than not the care home was not a suitable option even if it was in budget.
  8. Although the Council says Mrs C made an explicit choice for the care home. The evidence shows Mrs C was open to options and contacted/visited all the care homes suggested by the Council. The care home that Mrs C eventually chose was one suggested by the Council. The Council has not been able to evidence that it offered a care home that was within Mr C’s personal budget, and that was available and suitable. Given Mrs C’s views on suitability and the Council’s record saying there was not an alternative; it seems more likely than not this home at the time was the only one available and suitable.
  9. Where there is no available and suitable option within the personal budget, the Council must up the budget and pay for the available placement in full (minus the client contribution determined by the financial assessment). I find that is what should have happened in this case, and the Council should not have asked Mr B to top-up the cost.
  10. The Council’s actions have caused confusion to Mr B and Mrs C, and meant Mr B has had the time and trouble of complaining about these issues. It also meant Mr B was dealing with these issues in the last few months of his father’s life, taking available time away from him to spend with his father, and causing upset and frustration.

Agreed action

  1. To acknowledge the impact on Mr B and Mrs C caused by the Council’s fault identified in this statement, and to prevent future problems, the Council will:
      1. Pay the top-up element of this care package. The Council will refund Mr B any payment he made towards the top-up, and/or issue a revised statement confirming there is no balance to pay for the top-up element of the care.
      2. Apologise to Mr B and Mrs C for failing to provide a final personal budget breaking down the client contribution and the remainder the Council would pay. And for failing to provide simple and clear information regarding the total costs of personal budget, client contribution and third-party top-up.
      3. Remind relevant staff of the importance of providing clear and simple financial advice to help people understand total care costs. In individual cases the Council should be clear on what it will pay, what the client will pay, and if a third-party top-up is required and agreed. The Council should ensure it is meeting its requirements under the Care Act 2014 and associated statutory guidance. The Council will implement any identified improvements.
      4. Remind relevant staff of the importance of keeping clear records. The Council must be able to show it has offered at least one available and suitable care home. The Council should document why a care home is suitable for the individual, any challenge to what is suitable, and the outcome of that challenge.
  2. The Council will complete actions a and b within one month of the Ombudsman’s final decision, and actions c and d within three months of the final decision. The Council must evidence its compliance to the Ombudsman.

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Final decision

  1. I have completed my investigation on the basis the agreed action is sufficient to acknowledge the impact on Mr B and Mrs C, and to prevent future problems.

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Investigator's decision on behalf of the Ombudsman

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