Summary: Mr and Mrs X complained the Council was charging them a top up for care home fees which they never agreed to and could not afford. The Council was at fault. It failed to discuss or agree the top up arrangement when the care home placement became permanent and failed to review the placement when Mr and Mrs X said they could not afford to pay. The Council has agreed to pay the top ups, apologise to Mr and Mrs X and pay them £150 to acknowledge the distress this caused. It has also agreed to provide evidence it has carried out service improvements to prevent a recurrence of the faults.

The complaint

1. Mr and Mrs X complained the Council placed their relative Mrs Y in a care home without offering an available, affordable placement without a top up. As a result, they say the Council is requiring them to pay a top up fee they never agreed to and cannot afford.
2. In addition, they say the Council delayed responding to their concerns which caused added distress and frustration.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I have considered the information provided by Mr and Mrs X and discussed the complaint with them on the phone. I have considered the Council’s response to my enquiries.
6. I gave Mr and Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Relevant law and guidance

7. As part of the care and support planning process, the council must provide the person with a personal budget. In circumstances where a placement in a care home is necessary, the Care Act 2014 says there must be at least one placement choice available that is affordable within the personal budget. 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 these circumstances, the council must not ask anyone to pay a top up fee.
8. 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 additional amount, ie top up the personal budget; or
• the resident has entered a deferred payment arrangement with the council and is willing to pay the top up fee themselves.
9. The Care and Support Statutory Guidance 2014 sets out that the council must ensure that the person paying the top up is willing and able to meet the additional cost for the likely duration of the arrangement, recognising that this may be for some time into the future. Therefore, it must ensure that the person paying the top up enters into a written agreement with the council, agreeing to meet that cost.
10. The council must make clear in writing the consequences should there be a break down in the arrangement to meet the cost of the top up. This should include that the person may be moved to an alternative accommodation where this would be suitable to meet their needs and affordable within the personal budget or local mental health after-care limit. The council must undertake a new assessment before considering this course of action, including consideration of a requirement for an assessment of health needs, and have regard to the person’s wellbeing

What happened

11. In April 2018 Mr X contacted the Council for assistance in finding a temporary care home placement for Mrs Y due to a flood in her property. The Council identified a care home in the area where Mrs Y lived.
12. The Council advised Mr X the care home was more expensive than the Council would pay so required a £50 a week top up. Mr X told the Council he would approach Mrs Y’s insurers about paying this. The insurers agreed to pay this £50 a week top up. The Council carried out a financial assessment in June 2018 and sent Mr X a third party top up agreement form. Mr X said he would not sign this as he could not afford to pay a top up. On the financial referral form the officer noted they issued Mr X with the third party agreement form but Mr X ‘did not want to sign the form during the visit. He said he was going to contact the house insurance company as he feels they should be able to make a claim for this’.
13. The Council carried out a needs assessment for Mrs Y’s temporary residential stay in August 2018.
14. Mrs Y’s stay in the care home was extended when asbestos was discovered in her property. In September 2019 the repairs were completed and the insurance company stopped paying the top up fee. Mr X says the care home considered Mrs Y was unable to live by herself anymore. Mr X contacted the Council to request a new assessment for a permanent placement. The Council carried out a mental capacity assessment in November 2019 and determined Mrs Y did not have capacity to make an informed decision about where her care and support needs were met. It considered it unfair for her to return home and made the placement permanent. The Council says the social worker completed a review at the care home in January 2020. I have not seen a copy of this.
15. In June 2020 the Finance Team wrote to Mr X with a financial assessment and revised top up amount, backdated to September 2019, for Mrs Y’s permanent placement at the care home. Mrs X contacted the Council and advised they could not pay the top up fees and said they had never agreed to pay them. The Finance Team agreed to contact Adult Social Care.
16. In December 2020 the care home sent Mr X an invoice for top up fees owed from September 2019 onwards. Mr X contacted the Finance Team and explained he had not heard from the social worker, he had never signed to agree to the top up fees and could not afford them. The Finance Team agreed to contact Adult Social Care. It later reported back that Adult Social Care considered Mr X was liable for the top up.
17. In January 2021 the care home increased the top up fees to £128 per week. Mr X contacted the Finance Team and Adult Social Care. The social worker spoke to Mrs X. They advised there were two options: to negotiate to see if the care home would waive the top up or to look for an alternative care home with no top up. The social worker contacted the care home but it refused to waive the top up. At this time the social worker went on extended leave.
18. The Council paid the money owed for the top up to the care home in March 2021 and started looking to recover the money owed from Mr X. It considered Mr X was aware of the top up and agreed the placement, knowing what the cost was. Mr X complained to the Council.
19. The Council responded in April 2021. It said Mr X had not raised issues about the top up when Mrs Y first moved to the care home and top up fees were explained when the Council carried out the financial assessment in June 2018. It said he agreed to the placement and was aware of the costs involved. It said if he was never prepared to pay the top up he should have explored other options in terms of negotiating the top up fee or looking to move Mrs Y to a home without a top up fee.
20. It said a mental capacity assessment was completed in November 2019 and a review in January 2020 to authorise the permanent status of the placement. It said the social worker spoke with Mrs X in January 2021 and explained the available options. The social worker had agreed to ask the care home if it would waive the fees otherwise it would be a case of looking for another care home. It said the Council had taken over the arrears to safeguard Mrs Y’s placement and it would pursue the arrears as per its debt recovery procedures.
21. Mr X remained unhappy and complained to us.
22. In response to my enquiries the Council accepted it should have reviewed the placement sooner. It said it would make an urgent request for a social worker to review the placement and liaise with the family to identify a suitable alternative care home without a top up. It also wished to apologise and it offered to meet some of the care costs.
23. It also said:
• it had raised with social work staff the need to ensure the covering of long-term absences which resulted in the lack of a further review and affordable placement being offered;
• it would ensure the lack of agreement to financial costs was flagged and addressed at an earlier point and it had issued a briefing email to finance staff about this.

Findings

24. At the time Mrs Y entered the care home her stay was intended to be temporary while repairs to her property were completed. The care home was more expensive than the personal budget and Mrs Y’s insurers agreed to pay the top up. The records show Mr X would not sign the top up agreement and told the Council he could not afford to pay it.
25. When the stay became permanent the Council failed to clarify the financial arrangements and did not discuss the third party top up with Mr X. There is no evidence that when Mrs Y entered the care home or when the arrangement became permanent that Mr X was offered an alternative suitable placement within Mrs Y’s personal budget. This was fault. The Care and Support Statutory Guidance is clear that the council must ensure that the person paying the top-up is willing and able to meet the additional cost for the likely duration of the arrangement. The Council’s failure to ensure this was fault.
26. Mr X was not aware he was required to pay the top up until June 2020, when the Council contacted him with a revised financial assessment. Mrs X immediately contacted the Council to query this. The Finance Team agreed to discussed this with Adult Social Care. There is no evidence the Council contacted Mr or Mrs X again to discuss this. This was fault. Mr X was not contacted again until December 2020 when he received a bill for the top up owed, backdated to September 2019, from the care home.
27. In January 2021, the Council advised Mr X there were two options: to pay the top up or look for an alternative care home. However, when the social worker went off work, the Council failed to explore this further and there is no evidence it assessed whether it was appropriate for Mrs Y to be moved. The onus was on the Council to identify an alternative care home within the personal budget as Mr X had never agreed to pay the top up fee in the first place.
28. When Mr X contacted the Council to complain it said he was liable. This was fault. Mr X had never agreed to pay the top up fee when the stay became permanent. Mr X made it clear he could not afford and was not willing to pay it. The Council has sent Mr X bills and threats of recovery action which have caused him and Mrs X distress and frustration.
29. The Council missed three opportunities to review the placement given Mr X was not willing or able to pay the top up. It failed to discuss or consider this in September 2019, June 2020 and December 2020. This is fault.
30. The Council says it will now review the placement. The care home is more expensive than Mrs Y’s personal budget. It is therefore open to the Council to offer an alternative care home within the personal budget. In doing so the Council must reassess Mrs Y and complete a risk assessment to decide if it is safe and appropriate to move her, having regard to her well-being as set out in the Care and Support Statutory Guidance. If the Council decides Mrs Y can be moved it is open to Mr X to agree to pay the top up if he wishes Mrs Y to remain in the care home.
31. As a result of my enquiries, the Council says it has already taken action to prevent a recurrence of the faults. These actions are appropriate. It should provide evidence to the Ombudsman it has done this.

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Agreed action

32. Within one month of my final decision the Council has agreed to:
• accept responsibility for the top up fees from September 2019 and ongoing until it has, if considered appropriate, moved Mrs Y.
• apologise to Mr and Mrs X and pay them £150 to acknowledge the distress and frustration caused by the Council’s recovery action.
33. Within one month of the final decision the Council has agreed to provide evidence to the Ombudsman that it has carried out the actions at paragraph 23 namely that it has:
• raised with social work staff the need to ensure the covering of long-term absences which resulted in the lack of a further review and affordable placement being offered;
• ensured the lack of agreement to financial costs is flagged and addressed at an earlier point and it had issued a briefing email to finance staff about this.

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Final decision

34. I have completed my investigation. There was evidence of fault by the Council causing an injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman