Summary: Mr X complained, on behalf of his father Mr Y, that the Council failed to properly explain how Mr Y’s care home place would be funded. The Council failed to provide appropriate information and advice about care home fees. This led to Mr Y choosing a care home placement which was initially more than he could afford and caused avoidable distress to Mr Y and Mr X. The Council agreed to apologise, reduce the amount of Mr Y’s outstanding debt and pay a financial remedy. It also agreed to review its practices and issue reminders to its staff.

The complaint

1. Mr X complains, on behalf of his father Mr Y, that the Council failed to properly explain how Mr Y’s care home place would be funded, including:
• that Mr Y might need to make a contribution to the costs of his care; and
• that any third-party top-up payments from Mr X would be on top of any contribution Mr Y would make.
2. As a result, Mr X says Mr Y chose a care home placement he and his family could not afford. Although the Council has now agreed to pay a greater share of Mr Y’s fees, he still owes over £8,000 to the Council which Mr X says he cannot afford to pay. He wants the Council apologise and cancel the debt Mr Y owes.

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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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. If we are satisfied with an organisation’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

6. I considered:
• the information Mr X provided and discussed the complaint with him;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant law and guidance.
7. Mr X, Mr Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Charging for care and personal budgets

8. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their 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.
9. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
10. Everyone whose needs the council meets must receive a personal budget as part of their care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process.
11. The Care and Support Statutory Guidance says councils should ensure that someone knows before care and support planning begins, an estimate of how much money will be available to meet a person’s assessed needs and, with the final personal budget, having clear information about the total amount of the budget, including the proportion the local authority will pay, and what amount (if any) the person will pay.

Third party top-ups

12. 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.
13. 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 of those options.

14. 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. This is called a ‘top-up’.
15. A person receiving care can only choose to pay a top-up in limited circumstances:
• where the home they own has been temporarily disregarded;
• where they have an agreement with the Council that it will pay their care home fees and the person will repay the Council later from the sale of their home; or
• when they are receiving accommodation as part of mental health aftercare.
16. In all other circumstances, top-up payments can only be made by someone other than the person receiving care, such as a relative or friend.
17. Before entering into the agreement for someone to pay a top-up, councils must provide the person paying the ‘top-up’ with sufficient information and advice to ensure that they understand the terms and conditions, including actively considering the provision of independent financial information and advice.

Contracts with care providers

18. Where a council 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 agree, it may choose to allow the person to pay the provider directly for the ‘top-up’ where this is allowed. In doing so it should remember that multiple contracts risk confusion and that payments direct to the care provider is not recommended.

Information about charging

19. The Care Act requires councils to provide appropriate information and advice about care and support, including funding arrangements.
20. The Care and Support Statutory Guidance says:
• Information and advice is fundamental to enabling people, carers and families to take control of, and make well-informed choices about, their care and support and how they fund it.
• Councils must ensure information and advice is provided on how to access independent financial advice on matters relating to care and support – about the extent of their personal responsibilities to pay for care and support, their rights to statutory financial and other support, locally and nationally, so that they understand what care and support they are entitled to from the local authority or other statutory providers. Including what information and advice people may wish to consider when making financial decisions about care so that they can make best use of their financial resources and are able to plan for their personal costs of care.
• Councils have several direct opportunities to provide – or signpost to – advice and information when people in need of care and support come into contact with them. This includes during the care and support planning process and hospital discharge.

What happened

21. Mr X’s father, Mr Y has care and support needs. Before June 2021, Mr Y received care at home arranged by the Council and from Mr X. There is evidence to show that while Mr Y received this home care, he had completed financial assessments and, at times, had made a contribution to the costs of his care.
22. In mid-June 2021, Mr X told the Council that Mr Y needed 24 hours care and asked it to arrange a placement in a care home for him. Shortly after this, Mr Y fell while at home and went into hospital.
23. At first, the Council agreed for Mr Y to go into a care home on a short-term basis to allow him to leave hospital while it assessed his longer-term needs. The Council told Mr X that he would need to “complete financial forms again”.
24. Mr X told the Council Mr Y wanted to go into his preferred care home. The Council told Mr X that for Mr Y’s preferred care home “the weekly top-up fee if £450” and asked if he would be willing to pay the top-up fee.
25. Mr X responded to the Council that “I have been talking to Dad and unfortunately we can't afford the extra funding. He has state pension but it is not enough.” and asked the Council if there were other options. The Council provided two other options to Mr X, one with a top-up of £200 and the other without any top-up.
26. A few weeks later, Mr X told the Council that “I have spoken to Dad and we can agree to the top up amount of £450”. He asked the Council to arrange the preferred care home place for Mr Y. Mr Y moved into his preferred care home at the end of July 2021.
27. Around a week later, the Council sent Mr X a top-up agreement to complete and sign. It again confirmed the weekly top-up fee was £450 a week. Mr X completed and returned the agreement the following day.
28. In mid-September Mr X received an invoice from the care home for Mr Y’s contribution to his care costs. This was on top of the top-up payments which Mr X had been paying since Mr Y moved into the care home. Mr X contacted the Council which explained that Mr Y had been assessed as being able to afford to pay around £270 a week towards his care.
29. Mr X complained to the Council that it had failed to make this clear while Mr Y was choosing a care home. He understood the top-up payment would be shared between Mr X and Mr Y and the Council would pay the rest of the fee. He told the Council that if he had known that Mr Y would also need to contribute, they would have chosen a different care home, since they could not afford both Mr Y’s contribution and Mr X’s.
30. While the Council was investigating Mr X’s complaint, the care home served notice to end Mr Y’s care home place due to Mr Y’s contributions not having been paid.
31. Due to concerns for Mr Y’s wellbeing if he needed to move, the Council agreed to increase its contribution to Mr Y’s care home fees from mid-January 2022 by £200. This had the effect of reducing Mr X’s third-party top-up to £250 The Council also paid the care home Mr Y’s outstanding contributions and recover these from Mr Y. However, it refused to waive the contribution and has invoiced Mr Y for just over £8,000.

My findings

32. The Council is entitled to charge Mr Y a contribution towards the cost of his care and has done so from the point it completed the financial assessment and sent the outcome to Mr Y. Therefore, Mr Y is responsible for making a contribution between the financial assessment and when he started making his contribution in April 2022.
33. However, I am satisfied there was fault in how the Council went about arranging Mr Y’s care home place and the information it gave to Mr X and Mr Y about how his care would be funded. In particular, the Council:
• provided no evidence it shared even an indicative personal budget with Mr Y or Mr X while they were considering care home places, discussed this further during the care planning process or confirmed a final personal budget for Mr Y;
• failed to provide Mr X and Mr Y, or signpost them to, any information about how funding for care home places worked or that Mr Y might need to make a contribution before they selected a care home place. Although Mr Y had paid a contribution in the past, the circumstances and potential rules were different when moving into a care home and Council should not have assumed Mr X and Mr Y had a detailed understanding about how care home funding worked. Although the Council later sent Mr X some information from a third-party charity website, this was when he raised his concerns, months after Mr Y had moved into the care home;
• failed to properly explain before Mr Y went into a care home that the top-up would need to be made by someone other than the Mr Y. This was despite clear emails from Mr X which suggested his understanding was that he and Mr Y would be sharing responsibility for the top-up. The Council missed several opportunities to address that misunderstanding before Mr Y went into the care home;
• only sent the top-up agreement to Mr X, which did mention that it was he who needed to pay the top-up, after Mr Y had moved into the care home;
• incorrectly referred, in its stage one response to Mr X’s complaint, to Mr Y contributing to the top-up, which is not allowed in his circumstances; and
• in its complaint responses, relied on a lack of ‘misinformation’ from its staff to justify its position. The law goes further than requiring the Council only to avoid misinforming people about care and support, it has a positive duty to ensure they are provided with accurate information and advice.
34. Mr X said if he and Mr Y had known Mr Y would also need to contribute, they would have chosen a different care home. I cannot say that would have been the case given the clear and strong preference both Mr Y and Mr X expressed for their preferred care home at the time. However, I am satisfied the lack of clear information from the Council contributed to Mr Y selecting the care home he did and the initial costs being higher than he and Mr X could together afford.
35. The Council effectively increased Mr Y’s personal budget when it agreed to cover more of the care home fees from mid-January 2022. The effect of this was to reduce the combined contributions Mr Y and Mr X had to make to around the original amount they believed it would be. Given the preferences Mr Y and Mr X expressed, I believe it is likely they would have selected the same care home if their combined contributions had been what they are now.
36. Since Mr Y’s needs have not significantly changed during that time, I am satisfied an appropriate remedy would be for the Council to backdate the current personal budget rate to when Mr Y went into the care home and adjust the outstanding debt accordingly.
37. In addition to the financial effects on Mr Y and Mr X, I am satisfied the failure to provide appropriate information and advice or to correct Mr X’s misunderstanding while choosing care homes caused avoidable distress to Mr Y and Mr X.
38. I am also satisfied there is further fault with the Council’s approach to managing client contributions and third-party top-ups. The statutory guidance is clear that where a council arranges and funds a care home place it should, where possible, pay the full fee to the care provider and then collect any contributions from the resident and third parties. In this case, the Council arranged for both Mr Y and Mr X to pay their contributions directly to the care home. The Council has not given persuasive reasons why it has not followed the statutory guidance and so I am satisfied this was fault.
39. I am satisfied this resulted in the care home giving notice to Mr Y, which would not have happened if the Council had been paying the full fee directly, as it should have done. Although Mr Y did not ultimately have to move, this caused further avoidable distress to Mr Y and Mr X.

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Agreed action

40. Within one month of my final decision, the Council will:
• apologise to Mr Y and Mr X for the fault I have found and the injustice this caused;
• backdate the personal budget amount the Council agreed in mid-January 2022 to when Mr Y first moved into the care home and adjust the outstanding balance of Mr Y’s contribution accordingly;
• pay Mr Y and Mr X £250 each to recognise the avoidable distress and worry caused by the lack of clear information and the threatened eviction; and
• review the arrangements in Mr Y’s case for how his care home fees are paid to ensure these are in line with the statutory guidance.
41. Within three months of my final decision the Council will:
• review the information it provides to potential care home residents about how care home funding works to ensure it adequately explains about client contributions and third-party top-ups. It should ensure this information is provided to potential residents at the right time or that they are directed to this information.
• remind relevant staff (including frontline social workers) of the importance of:
1. ensuring residents and family members considering paying a top-up understand that any top-ups are on top of any client contribution; and
2. they should correct apparent misunderstandings about this at the earliest opportunity.
• review its approach to collection and payment of client contributions and top-ups for residents where the Council arranges care home placements. It should ensure its practices are in line with the statutory guidance and that, where possible, the Council pays the full fee to care providers and collects client contributions from residents itself.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation. The Council failed to provide appropriate information and advice about care home fees to Mr Y and Mr X. This led to Mr Y choosing a care home placement which was initially more than he could afford and caused avoidable distress to Mr Y and Mr X. The Council agreed to apologise, reduce the amount of Mr Y’s outstanding debt and pay a financial remedy. It also agreed to review its practices and issue reminders to its staff.

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Investigator's decision on behalf of the Ombudsman