Summary: Mr X complained Norwood House Care Home breached the terms of their agreement by increasing his mother, Ms Y’s, top up fee several times without proper notice or consultation and without notifying the Council. We found there was fault causing injustice when the Care Home failed to follow the correct procedure to increase fees, and when the Council failed to provide information in writing. However, we were satisfied the Council already remedied the injustice.

The complaint

1. Mr X complained Norwood House Nursing Home, of Keighley (the Care Home) breached the terms of their agreement by increasing his mother, Ms Y’s, top up fee several times without proper notice or consultation and without notifying the Council.
2. Mr X said the Care home had no regard for whether the family could afford the cost and did not properly explain or justify the reason for the increases.
3. Mr X said Ms Y had to leave the Care Home because it was no longer affordable. This caused her confusion and distress. Mr X is concerned this decision was made without any proper assessment of Ms Y’s best interests or what impact the move would have on her.
4. Mr X wanted the Care Home to refund the family for all increased top up fee charges.

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The Ombudsman’s role and powers

5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
7. 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)
8. We normally name care homes and other care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
9. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

10. As part of the investigation, I considered the complaint and the information Mr X provided.
11. I made written enquiries of the Council and considered its response along with relevant law and guidance.
12. Mr 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

Residential care

13. 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.
14. 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.
15. 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’. But a top-up payment must always be optional and never the result of commissioning failures leading to a lack of choice.
16. 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.

Service agreement

17. The Council’s service agreement with the Care Home for the relevant period of the complaint came into effect in November 2021. Under this agreement, the Care Home had to complete a new form each time information relating to first-party and third-party payments changed. The new form had to be signed by the Council, the Care Home, and the party responsible for payment.

What happened

18. I have summarised below some key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.
19. Ms Y went into the Care Home in 2018. Mr X’s brother, Mr A, signed an agreement setting out the charges in November 2018.
20. The weekly charge for accommodation, care, and food was £498.75. Mr A agreed Ms X’s family would pay a personal choice contribution of £101.25 per week. I will refer to this as the ‘top-up’.
21. The Care Home wrote to Mr A on 22 February 2022, advising it was increasing room rates from April 2022. It did not know the exact amount, as it was waiting on further information. It said it would write to Mr A again when it knew more.
22. The Care Home wrote to Mr A again on 6 April 2022. It said it was increasing top-up fees by £5 per day. It confirmed Ms Y’s new top-up fee was £136.25 per week, starting from 4 April 2022. It said this increase was due to rising inflation, increasing utility costs, and increases in staffing costs. The Care Home said Mr A could call to discuss this if he wished.
23. The Care Home wrote to Mr A for a third time on 22 February 2023. It said it was increasing room rates again from April 2023. The exact amount depended on external factors, and it awaited more information to calculate the new rates. It said it would write to Mr A again when it knew more.
24. The Council completed a best interest decision for Ms Y on 7 March 2023. This tied in with a request the family made to the National Health Service for nursing care. The Council noted Ms Y was settled in the Care Home, and it had capacity to provide nursing care, so could continue to meet her needs. The Council considered Ms Y may not settle if she had to move to a new care home, and would be at risk of deterioration to her mental and physical health. The Council recorded Mr A was aware he would need to continue paying a top-up fee, and chose for Ms Y to remain at the Care Home.
25. The Care Home then wrote to Mr A on 28 March 2023. It said its new weekly fee would be £900.00 in total. However, this time it did not give any information about top-up fees. Again, the Care Home cited rising inflation, increased utility costs, and increased staffing costs as the reason. The new fees were effective from 1 April 2023. The Care Home said Mr A could call to discuss this if he wished.
26. Mr X complained to the Council after a meeting in August 2023. He said the family had no support from the Care Home about fee increases and no contact from Ms Y’s social worker. The Council said the Care Home cannot increase fees without consent, then later said there is nothing it can do.
27. Mr X asked why the family only found out about the increase three months after Ms Y’s last assessment, and why no one discussed it with them. He said if they had this information sooner, they could have looked for a new care home and avoided a large bill.
28. The Council said Ms Y’s social worker made a note about discussing the new fees with Mr A, and he agreed to continue paying. However, the Council acknowledged the social worker did not confirm this in writing. It apologised for the distress this caused, and offered to refund the family £1,413.73. This was the difference between the new top-up fee rate and the previous rate, and covered the period between March and July 2023. The Council said it reminded social workers about the importance of following up any discussions with written information for families.

My investigation

29. Mr X said the Care Home telephoned Mr A when it wanted to increase charges. This happened several times, but there were no affordability discussions. When Mr A said the family could not afford the increases anymore, the Care Home said they would have to find somewhere else for Ms Y to live.
30. Eventually, Mr A contacted the Council. The Council said the Care Home was entitled to increase charges, but after their complaint it agreed to refund some of the increased charges.
31. Mr X said the family found a new care home for Ms Y. She was initially upset and confused, but is now settled.
32. The Council told me terms of the charging agreement allow the Care Home to change the top-up fee. However, it must notify the paying party in writing. It must give reasons for the new charge, confirm what the new charge will be, and confirm the date of the change. It must also give one months’ notice.
33. The Council said it visited the Care Home after the family’s complaint. It discussed Care Act requirements on top-up fees and contractual obligations. It also wrote to the Care Home setting out the agreed contractual position.
34. The Council has now introduced additional contract documents for care providers to complete if they propose to increase fees. The terms have been changed to make top-ups clearer to families and to ensure a written agreement is in place, with a copy going to the Council.

Analysis

35. The Care Home wrote to Mr A before each top-up fee increase, it gave reasons for the increases, and it gave Mr A the opportunity to discuss them. So, in that regard, it acted correctly and in line with the agreement.
36. However, while the Care Home did write to the family a month before each increase, confirming its plan to increase charges, it did not give one months’ notice of what the new charge was on either occasion. That was fault.
37. The Care Home should also have completed a new written agreement for each increase, signed by Mr A and by the Council. It did not do so. That was fault.
38. The Council recognised it did not give suitable information to Ms Y’s family when the Care Home increased its fees in 2023. It calculated Mr A paid an extra £2,958.58 between March and July 2023, due to the increased top-up fee. However, it said Mr A did not make any payments between July and August 2023, when he should have paid £1,526.85, using the earlier top-up fee rate. The Council therefore offered to refund the difference, which was £1,413.73. It also apologised.
39. Mr X wants all top-up fees to be set at the original contract rate, and for the Council to refund the difference paid over the past few years. I do not consider this is proportionate. While the Care Home did not follow the correct process, I found it did confirm what the increased top up fee was in 2022. The family had the opportunity to discuss this, and there was nothing stopping them from contacting the Council sooner if they felt the fees were not affordable.
40. The Care Home had the right to set new fees, even if strictly speaking it did not do so correctly. Mr X’s family would still have been left with the likelihood of having to move Ms Y if they were not willing to pay the increased top-up fee in 2022. The records I saw suggest they did not want to do this, and the fact they did pay the increased fee up until 2023 is evidence it was still affordable.
41. The Council completed a best interest assessment in March 2023 as part of a review. This records Ms Y as being settled in the Care Home, and states she would be a risk of deterioration in her mental and physical health if moved.
42. Despite this recorded risk, I have not seen evidence the Council completed another assessment before Ms Y moved into a new care home. That was fault. The Council had already identified Ms Y may be at risk if moved, so it should have assessed the situation again. However, I understand Ms Y is now settled in her new care home, and the family are happy with the care she receives. There is therefore no evidence the Council’s fault has caused Ms Y significant injustice.
43. I am also satisfied the Council remedied the injustice caused by the lack of proper information about increased top-up fees.
44. In addition, I am satisfied the Council took suitable steps to address the identified failings by meeting with the Care Home to remind if of its responsibilities, and by producing new fee documentation. It also reminded social workers to provide information to families in writing.
45. I therefore have not made any further recommendations.

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Final decision

46. I completed my investigation. There was fault causing injustice when the Care Home failed to follow the correct procedure to increase fees, and when the Council failed to provide information in writing. However, I am satisfied the Council has remedied the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman