Summary: The Council was at fault, because it did not offer the complainant’s mother an affordable care home placement, before asking her to pay a top-up towards her mother’s fees. This meant the top-up arrangement did not adhere with the statutory guidance. The Council has agreed to remedy the injustice this caused, by reimbursing the complainant the money she should not have paid.

The complaint

1. I will refer to the complainant as Ms V.
2. Ms V complains the Council arranged a residential care placement for her mother, Mrs P, which required her to pay a third-party top-up, but did not offer an affordable placement. This means Ms V paid a significant amount of money towards Mrs P’s care between 2015 and 2020, which she now considers she should not have had to pay.

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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)

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How I considered this complaint

4. I reviewed Ms V’s correspondence with the Council, the Council’s case notes, and some of its other records.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. The following is a summary of the key events relevant to this complaint. It is not intended to provide a detailed chronology of everything which happened, or every instance of correspondence between the parties.
7. At the beginning of 2015, Mrs P was living at home, with several daily visits by carers. Over the course of the year, Mrs P’s condition deteriorated, and the Council arranged for her to move to a flat in sheltered accommodation. Mrs P’s move was scheduled for December, when the flat was due to become available.
8. In November, because of problems with Mrs P’s visiting carers, it was agreed she would enter a residential home for respite care, while the Council arranged a new care agency for her.
9. On 11 November, the Council contacted several local homes to establish their availability. Two homes operated by the same care provider (which I will refer to as ‘Home 1’ and ‘2’) confirmed they had no vacancies. Another home (‘Home 3’) said it had several vacancies, but would require a top-up payment of approximately £220 per week; and a fourth home (‘Home 4’) also confirmed it would require a top-up payment. The Council noted Mrs P’s sheltered accommodation would be available soon and so the respite placement would only be for one or two weeks.
10. Ms V says she visited Home 3, but did not think it suitable for Mrs P. On 13 November, the Council noted it had agreed to fund a placement for Mrs P at Home 4, provided Ms V gave written confirmation she was prepared to pay the top-up of approximately £240 per week.
11. Mrs P’s move to Home 4 was delayed several days for administrative reasons. On 20 November, the Council recorded Ms V had emailed, asking for an extension to Mrs P’s respite placement to five weeks. The Council noted that, due to the delay, it could now enquire about vacancies again with Homes 1 and 2, and for this reason would not agree the extension.
12. Mrs P was admitted to Home 4 on 25 November.
13. On 11 December, Ms V informed the Council her own husband was ill in hospital, and asked for an extension to Mrs P’s respite placement for this reason. The Council said it agreed, “subject to” a vacancy becoming available at Home 1 or 2.
14. Ms V spoke to the Council on 31 December. The Council explained it had not yet been able to arrange a new care agency for Mrs P’s home visits. It discussed the possibility of moving Mrs P to Home 1 or 2 when her contract with Home 4 expired, but could not say whether this would be possible. Ms V said she would rather continue paying the top-up for Home 4 than for Mrs P to have to move twice.
15. Mrs P left Home 4 on 10 January 2016 and moved to her sheltered accommodation flat. She fell and injured herself later the same day and was admitted to hospital, where she remained to 21 January.
16. Mrs P was readmitted to hospital on 24 January and discharged home again on 26 January. On 30 January, she was admitted to hospital a third time.
17. In February the Council discussed with Ms V the possibility of arranging a short-term rehabilitation placement for Mrs P in a care home. On 17 February, the Council noted it had consulted with one home, which said it would not take Mrs P on a temporary basis. It also noted Ms V had confirmed she would be prepared to pay a top-up for Home 4 again if necessary.
18. On 24 February, Home 4 agreed to take Mrs P for a two-week respite placement. The Council noted Ms V had “written top up agreement [sic]”.
19. Mrs P’s condition did not improve, and the Council arranged for her respite placement to be extended. However, after further assessment, it was agreed on 23 May Mrs P’s placement should be permanent. The Council noted again that Ms V had “written the top up letter”.
20. At the date of writing, Mrs P is still resident at Home 4.
21. In June 2020, Ms V contacted the Council to say she could no longer afford the top-up payments. In a further conversation in July, the Council asked what Ms V might be able to pay – to which she replied she could not afford anything – and warned her Mrs P may need to move home.
22. Ms V says, following these conversations, she contacted a charity, which explained she should not have been made to pay towards Mrs P’s fees.
23. In September and October, Ms V says she made several requests to stop receiving invoices for the top-up payments for Home 4, which she had stopped paying in June. Eventually, in October, she received confirmation the overdue payments had been waived.
24. Ms V then submitted a complaint the Council. She says she did not receive a response until April 2021, after chasing the Council several times. The Council rejected her complaint, saying she had agreed to pay the top-up, despite the Council making “clear [it] would not support or fund [Home 4] because there were beds available, at a lower cost, at [Home 1 or 2]”.
25. Ms V complained to the Ombudsman on 23 June.

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Legislative background

Choice of care homes

26. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home place for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions. This also extends to shared lives, supported living and extra care housing settings.
27. The council must ensure:

• the person has a genuine choice of accommodation;
• at least one accommodation option is available and affordable within the person’s personal budget; and,
• there is more than one option.

28. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or in certain circumstances the resident is willing and able to pay the additional cost (‘top-up’). But a top-up payment must always be optional and never the result of commissioning failures leading to a lack of choice.

Top-up payment

29. 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.
30. 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.
31. 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.

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Analysis

32. Mrs P has a council-commissioned placement in a residential care home. Such placements can be funded in several different ways.
33. Like Mrs P, many people do not have the means to pay for their full care fees. In such circumstances, the council will set a ‘personal budget’, which is the amount it considers an appropriate placement should cost. It will then calculate how much the person can afford to pay towards their fees, by taking account of their income (such as pensions) and assets (such as savings or property). The person will then pay this amount as their contribution to the fees, with the council making up the difference between that and their budget.
34. Some care homes may decide to charge a higher fee than the personal budget. Councils can still agree to commission a placement there, on the condition a third party – such as a family member – is prepared to pay the additional costs. This is called a ‘third party top-up’.
35. So, for example, if a person’s personal budget was £500 per week, and the local council calculated they could contribute £100 per week, the council would pay the remaining £400. If the person chose a care home which charged £700 per week, the local council could ask for a family member to pay the additional £200 as a top-up.
36. It was this type of arrangement which the Council put in place to fund Mrs P’s stay at Home 4.
37. However, councils can only ask for a top-up payment where a person has actively chosen a placement which exceeds their budget, and is a matter of genuine choice. The Care and Support Statutory Guidance says (at paragraph 12 of Annex A):

“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. The local authority therefore must ensure that at least one option is available that is affordable within a person’s personal budget …

“[If] no suitable accommodation is available at the amount identified in a personal budget, the local authority must arrange care in a more expensive setting and adjust the budget accordingly to ensure that needs are met. In such circumstances, the local authority must not ask for the payment of a ‘top-up’ fee. Only when a person has chosen a more expensive accommodation can a ‘top-up’ payment be sought.”

38. The Council says it met this duty, because it offered Mrs P a placement with the care provider running Homes 1 and 2 (which, I assume, were within budget), but Ms V turned this down in favour of Home 4. But I can see nothing in the Council’s notes to support this version of events; rather, on each occasion where the Council consulted about Homes 1 and 2, its notes show no placement was available.
39. As this represented a ‘market inadequacy’, the statutory guidance says the Council should have adjusted Mrs P’s personal budget to cover a more expensive placement, without requiring a top-up payment from Ms V (or any other person). The Council’s failure to do is fault.
40. This fault caused Ms V a significant injustice, because it meant she made top-up payments which she should not have been required to. I will discuss what the Council should do to remedy this injustice in the next section.
41. First, I have two further points of criticism here.
42. As part of the commissioning arrangements, the Council asked Ms V to pay both the top-up, and Mrs P’s contribution (I understand Ms V was managing Mrs P’s finances) direct to Home 4, with the Council paying its own contribution separately.
43. But, at paragraph 8.33, the statutory guidance 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.”

44. It is a general expectation of the guidance that councils should collect residents’ contributions, and any top-up payments, and pass them on to the care provider alongside its own contribution. Doing so helps avoid confusion, and means the council can immediately step in to cover any shortfall, without any risk to the placement.
45. I acknowledge there is some flexibility open to a council with respect to this, and so it is permissible for residents and/or family members to make their payments direct to the care provider. But I would expect to see the reasoning for this set out in the council’s records, along with a clear confirmation the resident and/or family members agreed.
46. Again, I can see nothing in the Council’s notes to indicate that happened in this case. Instead it appears the Council simply told Ms V this was how she should make her payments, without any further discussion. This is also fault.
47. I do not consider this represents a significant injustice to Ms V. There is nothing to indicate she was opposed to making either her own or Mrs P’s payments direct to the care provider; nor is there any suggestion Mrs P’s placement was at risk in 2020, when Ms V stopped paying the top-up. So, in this instance, there were no particular consequences to this fault. However, I still consider the Council should take steps to avoid a recurrence, which I will again discuss in the next section.
48. I am also critical of the length of time it took the Council to respond to Ms V’s complaint. Having submitted it in October 2020, she did not receive the Council’s response until April 2021, some seven months later. This is significantly in excess of the 20 working days the Council’s adult social care complaints policy says it will aim to respond in.
49. I acknowledge it may be difficult to meet such a target in many cases, and this is especially so when considering the additional pressures on Council services created by the COVID-19 pandemic. However, even taking this into account, I do not consider a 7mth delay to have been reasonable, especially given that Ms V’s complaint concerned a relatively narrow and straightforward issue. I therefore again find fault here.
50. I consider this fault also caused Ms V an injustice, in the time and trouble she was put to pursuing the Council for a response. I will discuss what the Council should do to remedy this injustice in the next section.

Conclusions and remedy

51. I find fault by the Council, in that it asked Ms V to make a third party top-up payment for Mrs P’s placement at Home 4, without having offered an affordable alternative. This means Ms V contributed a significant amount of money to Mrs P’s fees, which she should not have had to pay, because the guidance says the Council should have adjusted Mrs P’s personal budget to cover the top-up instead.
52. It would still have been permissible for the Council to ask Mrs P to move to an affordable placement later on, had one become available (and provided Mrs P was fit and well enough to move safely). It could then have asked Ms V to pay a top-up, if she had declined this offer.
53. It is therefore difficult to say what would have happened here, had the Council not been at fault. But for that reason, I do not consider it appropriate to speculate whether Ms V would have paid a (legitimate) top-up at any point. The fact is she should not have been required to enter into a top-up agreement when she did; this being the case, I consider the only appropriate remedy is for the Council to offer to reimburse the full amount Ms V has paid towards Mrs P’s fees.
54. This includes Mrs P’s first, temporary, respite stay at Home 4, and the initial ‘respite’ period of her second, permanent stay; as the ‘affordable placement’ rule applies equally to short- and long-term / permanent placements in residential care.
55. I will not seek to define the exact amount of money this represents, as I do not have access to the relevant records to make this decision. I will leave it for Ms V and the Council to agree the correct figure. I make a recommendation to this effect.
56. I find fault by the Council, because it should either have collected Ms V’s top-up and Mrs P’s contributions and paid them to the care provider itself; or given clear reasons for Ms V to pay these direct to the care provider, and sought her agreement.
57. This did not cause Ms V an injustice, as it does not appear to have made any material difference to her. However, I consider the Council should remind relevant staff of the requirements of the statutory guidance in this respect. I make a recommendation to this effect.
58. I also find fault by the Council for the significant delay in its response to Ms V’s formal complaint, and that Ms V suffered an injustice in the time and trouble she was put to in chasing it. I consider the Council should offer an additional token financial remedy to reflect this. I make a recommendation to this effect.

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Agreed action

59. Within one month of the date of my final decision, the Council has agreed to:

• offer to reimburse the full amount Ms V paid in third-party top-ups for Mrs P’s placement at Home 4 since 2015;
• offer Ms V a further £150 to reflect the time and trouble Ms V went to in pursuing her complaint;
• take steps to remind all relevant staff of the provisions of the statutory guidance, which says the Council is responsible for contracting with and paying a care provider for any placement it commissions, and should, therefore, normally collect residents’ contributions and any top-up payments, rather than allowing these to be paid direct to the care provider.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman