Summary: Miss X complained on behalf of her mother, Mrs Y, about the fees for Mrs Y’s care home placement, including the third party top up fee. We have discontinued our investigation because the Council has offered a suitable remedy for the injustice.

The complaint

1. Miss X complained on behalf of her, Mrs Y, about the fees for Mrs Y’s care home placement, including the third party top up fee. Specifically, Miss X complained:
• The Council’s calculations of the fees are incorrect.
• Mrs X’s personal budget is incorrect.
• The Council incorrectly offset Mrs X’s pension credit against the top up fee.
• The Council did not reduce the fees to take account of funded nursing care payments.
2. Miss X said the Council’s errors caused stress and anxiety to Mrs Y’s family.

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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 provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)

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How I considered this complaint

4. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
5. Miss X 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

Legislation and Guidance

Charging for permanent residential care

6. The Care Act 2014 provides a single legal framework for charging for care and support under sections 14 and 17. It enables a council to decide whether to charge a person when it is arranging to meet a person’s care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
7. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.

Top-up payment

8. A top-up fee is the difference between the personal budget and the cost of a home.
9. 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; or
• the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themself.

10. 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.

NHS-Funded Nursing Care

11. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined. If the person has such a need and it is determined their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS-Funded Nursing Care.

What happened

12. I have summarised below some of the key events leading to Miss X’s complaint. This is not intended to be a detailed account of what took place.
13. Mrs Y suffered a stroke in January 2019, leaving loss of communication and mobility. She was discharged from hospital into a care home in May 2019. Mrs Y’s cognition and function declined to the point where she is fully dependent on carers.
14. Mrs Y’s family were not satisfied the care home was meeting her needs, so they arranged with the Council for Mrs Y to move to a new care home in July 2020.
15. The new care home was more expensive than the value of Mrs Y’s personal budget, meaning a top-up fee was needed. The Council explained the top-up fee to Miss X, and she agreed to pay it.
16. Miss X said she first contacted the Council in September 2020 to ask about top-up fee adjustments and errors on Mrs Y’s account.
17. In April 2021, the Council said the third-party top-up was separate from Mrs Y’s contributions and both should be paid to the care home. It thought the confusion arose after Mrs Y moved care homes. It said there was an overpayment which the Council would reimburse.
18. Miss X emailed the Council on 14 April because she was still receiving invoices for full payment and no adjustments had been made. She asked for an update on how much the third-party top-up would be reduced by.
19. The Council said it would chase the refund but there is no change to the top-up fee. It confirmed it was Mrs Y’s contribution to her fees that had reduced.
20. Miss X asked for documents showing how the Council calculated the top-up fee.
21. Miss X did not receive the information she wanted, so she complained to the Council on 10 May 2021.
22. Miss X complained to the Ombudsman on 3 August because she had not received a response from the Council.
23. After learning Miss X had complained to us, the Council contacted Miss X to discuss her complaint in October.
24. The Council sent its final complaint response on 14 December 2021. It offered to waive £1,952.12 in top up fees.

My investigation

25. In response to my enquiries, the Council offered to refund all top-up fees paid since Mrs Y went into the care home, minus the outstanding balance on Mrs Y’s contribution to her care and support charges. It also offered to pay £250 to recognise the distress and delays resolving the matter.

Analysis

26. To date, the total amount of top up fees incurred is £19,848.74. Miss X has paid £17,896.62. The Council agreed to waive the difference when it considered Miss X’s complaint.
27. There is an outstanding balance of £5,018.08 on Mrs Y’s care and support charges.
28. The total refund the Council proposed to pay is therefore £12,878.54.
29. Miss X complained the Council incorrectly calculated the top-up fee, resulting in overpayment. If I had investigated and found fault with the Council’s calculations I would have considered asking the Council to reimburse some or all of the fees. The Council has offered to reimburse much of what Miss X paid and I consider this to be a suitable remedy.
30. The Council also offered to make a payment of £250 for delays and distress. This is in line with the Ombudsman’s remedy guidance.
31. I do not consider it would be proportionate for me to continue my investigation in circumstances where the Council has offered a suitable remedy which addresses the injustice suffered.

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Agreed action

32. The Council agreed to pay Miss X £13,128.54. This is made up of a £12,878.54 refund and a £250 distress payment.
33. The Council agreed to pay Miss X within four weeks of my final decision.

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Final decision

34. I have discontinued my investigation. That is because the Council offered a suitable remedy for the injustice.

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Investigator's decision on behalf of the Ombudsman