Surrey County Council (20 004 804)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 16 Feb 2021

The Ombudsman's final decision:

Summary: The Council was at fault in the way it handled an increase in a person’s residential care fees. It fettered its discretion by adhering to a rigid interpretation of its fee guidelines, and also allowed an informal third-party top-up arrangement, both of which conflict with the statutory guidance. The Council has agreed to remedy this by reimbursing the money paid via this arrangement. We cannot investigate a separate complaint, about Council Tax and the way the Council has set its general budget, because this affects all or most people in the area and so falls outside our jurisdiction.

The complaint

  1. I will refer to the complainants as Mrs J and Mr L. Mr L is Mrs J’s son, and complains in his own right, as well as on Mrs J’s behalf.
  2. Mrs J is resident in a care home. Mr L says, due to a change in her needs, she unavoidably needed to move to a different room in the home, for which the Care Provider wished to charge more. Mr L complains the Council refused to accept the additional expense, and he was forced to agree to pay it himself.
  3. Mr L also complains about the Council’s general budgeting for Adult Social Care, which he considers does not correspond with increases in Council Tax.

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What I have investigated

  1. I have investigated the complaint described at paragraph 2. I have not investigated the complaint described at paragraph 3, for reasons I will explain at the end of this decision statement.

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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 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)
  3. We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)

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How I considered this complaint

  1. I reviewed Mr L’s correspondence with the Council.
  2. I also shared a draft copy of this decision with each party for their comments.

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What I found

  1. The following chronology sets out only the key events and correspondence relating to this complaint. I have excluded some details in the interests of simplicity.
  2. Mrs J has been resident in a care home for several years. She originally paid her own fees, but since October 2017, the Council has commissioned and paid for her care, with Mrs J paying a weekly contribution. The total cost of the placement at this time was £800 per week, with Mrs J contributing just over a quarter of this.
  3. In 2018, Mrs J suffered a fall. This meant she was now too frail to negotiate the stairs at the home, nor even use the stairlift, and so could not practically remain in her current room on the first floor of the home.
  4. By chance, a ground floor room at the home had recently become available, and Mr L asked the care home to move Mrs J downstairs. The care home explained it would charge an additional £100 per week for this room.
  5. There followed a series of negotiations between Mr L, the care home and the Council. The Council explained that the current £800 per week budget was already more than its guidance, and made the case to the care home it should move Mrs J to the downstairs room under her current fee arrangement. However, the care home rejected this, and would not accept anything less than £900 per week for the room.
  6. The Council also discussed the possibility of a third-party top-up arrangement with Mr L. He offered to pay £50 per week, if the Council could meet the additional £50.
  7. However, after the care home told Mr L it was about to let the downstairs room to somebody else, he agreed to pay the additional £100 himself in December. Mrs J moved downstairs and remains in this room.
  8. The Council says it continued to attempt to resolve the situation, and asked Mr L to stop paying the additional fee, as it felt it could not negotiate with the care home while he kept doing so. It also said it would refer the matter to the Care Quality Commission (CQC) if the care home threatened to evict Mrs J over non-payment of the additional fee. However, Mr L refused to countenance this course of action and continued to pay the money.
  9. In October 2019, Mr L submitted a complaint to the Council. He noted the background to Mrs J’s placement and funding, and that the Council had agreed to maintain the £800 per week fee when it had taken responsibility for the placement in 2017.
  10. Mr L explained, after Mrs J’s fall in 2018, the NHS had confirmed she was no longer able to walk, nor use the stairlift, and this meant she would effectively be confined to her room permanently as there was no way for her to negotiate the stairs. However, Mrs J also required regular visits to hospital. By coincidence, a ground floor had become available at this time, and as Mrs J needed to move downstairs for medical reasons, Mr L asked the Council to accept the £100 fee increase.
  11. Mr L complained this had become a protracted negotiation, and after receiving an ultimatum from the home owner, he agreed to pay the additional fee himself while waiting for confirmation from the Council. Mr L reiterated Mrs J would never have been able to leave her room again if he had not done so.
  12. Mr L went on to discuss the Council’s attempts to negotiate with the care home since then. He said he considered the Council’s refusal to increase Mrs J’s budget above £800 stood in contrast to recent increases in Council Tax, which he said were specifically to raise more funds for Adult Social Care (ASC), and pointed out the home’s costs had increased in the same time period. He also highlighted the increase in Mrs J’s own contributions. Mr L said he was incredulous at the Council’s suggestion he simply stop paying the increase and involve the CQC, and criticised the Council for failing to consider the potential need to increase the budget when it had agreed the £800 fee.
  13. Mr L said the Council had told him its ASC budget had decreased, and, given the reason for the increase in Council Tax, that he considered this possible misappropriation warranting a refund to tax payers.
  14. Mr L complained he was still paying the additional £100 per week, and reiterated Mrs J would have been unable to attend her hospital appointments if he had not agreed to do so. He asked the Council to reconsider its position on Mrs J’s budget.
  15. The Council responded on 19 November.
  16. The Council acknowledged the increase in Council Tax, but explained there had also been an increase in demand for ASC services. It explained it adhered to its own fee guidance, and this had been successful in allowing the Council to commission care at rates it could afford. It also acknowledged there had been increases in homes’ costs, and said it had a central team which considered fee uplifts in order to remain consistent. The Council said the owner of Mrs J’s home had been directed to this team, which would have considered whether a fee uplift was appropriate.
  17. The Council went on to confirm Mrs J’s fee of £800 per week was already above its guidelines, and in the interests of fairness it had declined the request. However, it said the Council did not wish to move Mrs J, which is why it had sought to negotiate with the home owner.
  18. The Council said the home had told it the reason for the fee increase was because the downstairs room was bigger. Its hope had been that the home would agree to move Mrs J to the downstairs room without a fee increase, because of the length of time she had been resident there. It acknowledged Mrs J’s needs had increased, but said they remained ‘residential’ needs, and reiterated its reason for declining Mr L’s request to accept the additional payment.
  19. The Council noted Mr L had voluntarily agreed the additional fee with the home owner, and said its advice to stop paying it had been in response to Mr L’s comment he could not afford it. It said, had Mr L stopped paying the increase, it would have revisited its negotiations with the owner; and if this had not succeeded, it could have “explored other ways” to work with her. The Council said it would have been concerned at the prospect of the home denying Mrs J a room, when she could not move elsewhere, would have raised concerns.
  20. The Council maintained its decision not to increase Mrs J’s budget.
  21. Mr L submitted a second complaint on 6 December. He reiterated his original points, and complained the author of the Council’s complaint response was one of the officers at the heart of his complaint. Mr L pointed out the Council’s contribution was not £800 per week, but in fact £590, because of Mrs J’s contribution, and again criticised the Council’s attempt to negotiate a lower charge. He said he did not consider the Council had taken proper account of the circumstances which had led to the increased fee.
  22. Mr L also raised again the Council’s decision to reduce the ASC budget, despite the apparent increase in demand and the increase in Council Tax. He said it was not fair to expect the home not to make reasonable increases to its fees.
  23. The Council responded on 8 January 2020. It said it had reviewed its previous response, and other related comments it had made in emails to Mr L (not reflected in this chronology), and said it was satisfied it had properly considered his complaints, and that there was no evidence of bias in the original officer’s response. The Council said it now considered the complaint closed, and referred Mr L to the Ombudsman if he wished to pursue it further.
  24. Mr L referred his complaint to the Ombudsman on 11 September.
  25. In response to my enquiries on this complaint, the Council says it has now accepted the additional £100 fee, and has made arrangements to pay it from 1 February 2021 onward.

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Legislative background

Charging for residential social care: ‘top-ups’

  1. The care and support planning process will identify how best to meet a person’s needs. As part of that, the council must provide the person with a personal budget. The personal budget is the cost to the council of meeting the person’s needs which the council chooses or is required to meet. The council must ensure that at least one choice is available that is affordable within a person’s personal budget and should ensure there is more than one choice.
  2. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top up fee is the difference between the personal budget and the cost of a home.
  3. However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:
    • The person can find someone else (a ‘third party’) to pay the top up.
    • The resident has entered a deferred payment scheme with the council and is willing to pay the top up fee himself.
  4. In such circumstances, the council needs to ensure the person paying the ‘top-up’ enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.

Care and Support Statutory Guidance (CSSG)

  1. At paragraph 8.33, the CSSG says:

“Where a local authority is meeting needs by arranging a care home, it is responsible for contracting with the provider. It is also responsible for paying the full amount, including where a ‘top-up’ fee is being paid. However, where all parties are agreed it may choose to allow the person to pay the provider directly for the ‘top-up’ where this is permitted. In doing so it should remember that multiple contracts risk confusion and that the local authority may be unable to assure itself that it is meeting its responsibilities under the additional cost provisions in the Care Act.”

  1. And, at paragraphs 11 and 12 of Annex A, it says:

“The personal budget is defined as the cost to the local authority of meeting the person’s needs which the local authority chooses or is required to meet. However, the local authority should take into consideration cases or circumstances where this ‘cost to the local authority’ may need to be adjusted to ensure that needs are met. For example, a person may have specific dietary requirements that can only be met in specific settings.

“In all cases the local authority 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. This should also reflect other factors such as the person’s circumstances and the availability of provision. In addition, the local authority should not set arbitrary amounts or ceilings for particular types of accommodation that do not reflect a fair cost of care.

“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.”

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  1. Mr L complains the Council has refused to accept the £100 per week increase in Mrs J’s care home fees, despite it being necessary for her health. The Council’s view is that it could negotiate a lower fee, but this has been undermined because Mr L has voluntarily agreed to pay the additional fee direct to the care home, and has refused to stop doing so.
  2. First, I must discuss an element of the Ombudsman’s jurisdiction. The law says a person should approach the Ombudsman within 12 months of becoming aware of the issue about which they wish to complain. Although we can disapply this rule, we must be satisfied there are good reasons for a delay – for example, that the complainant could not pursue their complaint sooner because of serious ill health.
  3. In this case, Mr L has criticised the Council’s handling of the original negotiations, which led to his decision to agree the additional fee himself, for fear of losing the downstairs room. These events occurred in November and December 2018, nearly two years before he referred his complaint to the Ombudsman. There is no suggestion this delay was for a good reason, and so I consider the 12-month rule should apply here.
  4. This means I will not consider whether there was any fault in the Council’s handling of the matter, specifically at the time of Mrs J’s move to the downstairs room. However, I consider Mr L’s continued payment of the additional fee since then, and the Council’s refusal to reverse its decision about this, can be seen as a distinct, albeit closely-related, complaint. This is not something which can be logically excluded on the time limit, and, because it represents a potential ongoing fault and injustice, I will investigate this point.
  5. Mrs J entered the care home in 2014. Her fee was set at £800 per week at that point. It remained so when the Council began to commission her care in 2017, becoming her personal budget, and only increased to £900 per week because of her move to the downstairs room in 2018.
  6. A considerable element of the discussion between Mr L, the Council and the care home has focused on Mrs J’s needs and the appropriateness of her budget. These are matters which I cannot, myself, dissect, as it is not for the Ombudsman to decide a person’s needs, or how much it should cost to meet those needs.
  7. Despite this, I have considerable concerns about what has happened here.
  8. As quoted, the CSSG says local authorities should be flexible in setting personal budgets. They should be prepared to adjust budgets where necessary to meet a person’s needs, and should not make themselves beholden to an arbitrary limit, where this does not reflect the reality of the situation.
  9. This does not mean local authorities have no right to negotiate fees with care providers. But Mrs J’s situation was such there was very little room for flexibility. She was unable to remain in the upstairs room, as this would have prevented her attending medical appointments, and there is no disagreement she was too frail to move to a different home. So it appears there really was no choice here, but for her to move to the downstairs room. And the care home has always been adamant this should attract a fee of £900 per month.
  10. I appreciate the Council wished to negotiate a lower fee, and I do acknowledge the point about its leverage being undermined by Mr L’s decision to continue paying the additional money. However, ultimately, I cannot overlook the fact the Council’s negotiations with the owner appear to have been entirely fruitless, right from the beginning.
  11. Taking this together with the fact there was no practical alternative to Mrs J moving room, I consider the Council has fettered its discretion here. It has adhered to a rigid interpretation of its guidance, without making allowances for the practicality of the situation. This is fault.
  12. Further to this, the arrangement between Mr L and the care home was, in effect, an informal third-party top-up arrangement. The CSSG is clear on this situation. To reiterate:

“Where a local authority is meeting needs by arranging a care home, it is responsible for contracting with the provider. It is also responsible for paying the full amount, including where a ‘top-up’ fee is being paid.”

  1. I acknowledge the Council was opposed to the top-up, and encouraged Mr L to stop paying it. I also acknowledge the Council could not physically prevent Mr L from sending money direct to the care provider, if he chose to do so.
  2. But the fact remains, where a local authority commissions care from a provider, the provider is then acting as a contractor on the local authority’s behalf. This means the local authority bears ultimate responsibility for the care provider’s actions under that contract. The local authority is also responsible for making all payments to the care provider, including any third-party top-up – except where it has been agreed by all parties this can be paid direct to the care provider, which is not the case here.
  3. So, either way, I must again find fault by the Council in allowing this situation, which breached the CSSG, to run on.
  4. I now turn to the question of injustice.
  5. As I have said, the Council has now accepted responsibility for paying the additional fee. It says it has done so out of recognition it put Mr L in a difficult position.
  6. It is, of course, positive the Council has taken this step without prompting, although I must say its reasons for doing so are not entirely clear to me. It has not, to my reading, acknowledged either of the specific faults I have identified here.
  7. Either way, and more critically, the question of the money which Mr L had already paid remains to be answered. By my estimation, this now stands at approximately £11,000 – that is, £100 per week, for the approximately 110 weeks between mid-December 2018 and 31 January 2021.
  8. To reiterate, I acknowledge the Council has the right to its own view on the appropriate personal budget for Mrs J. It has also made clear it did not agree with Mr L’s unilateral decision to pay the additional fee, and urged him to stop.
  9. But this is a situation which has, itself, arisen through Council fault. It has fettered its discretion over the question of Mrs J’s budget, and has allowed the situation to run on, in breach of the CSSG. The only conclusion I can draw, therefore, is that all of Mr L’s additional payments to the care provider are an injustice to him, and that, in order to remedy this, the Council should offer to reimburse the full amount.

Agreed action

  1. Within one month of the date of my final decision, the Council has agreed to offer to reimburse Mr L the full amount he paid to the care provider as an ‘unofficial’ third-party top-up.

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Final decision

  1. I have completed my investigation with a finding of fault causing injustice.

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Parts of the complaint that I did not investigate

  1. I have not investigated the complaint described at paragraph 3. This is because the Council’s general budgetary decisions, and how it uses the money it raises through Council Tax, are matters which all or most people in its area. This is caught by the restriction I have described at paragraph 7, and is therefore outside of the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman

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