Summary: Ms D complained the Council did not explain what a third party top up is or explain how the fees for respite care for her mother, Ms M, was calculated. This caused her financial and emotional distress. The Council is not at fault. It explained the fees to Ms D.

The Ombudsman’s role and powers

2. 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

3. I considered evidence provided by Ms D and the Council as well as relevant law, policy and guidance.
4. Ms D and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Charging for temporary residential care

5. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt a permanent admission is required. The person’s stay should be unlikely to exceed 52 weeks, or in exceptional circumstances, unlikely to substantially exceed 52 weeks. A decision to treat a person as a temporary resident must be agreed with the person and/or their representative and written into their care plan.
6. A council can choose whether to charge a person where it is arranging to meet their needs. In the case of a short-term resident in a care home, the council has discretion to assess and charge as if the person were having their needs met other than by providing accommodation in a care home. Once a council has decided to charge a person, and it has been agreed they are a temporary resident, it must complete the financial assessment in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance.

Choice of care homes

7. 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.
8. 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.

9. 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.

Top-up payment

10. 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.
11. 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; or
• the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themself.

12. 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.

The Council’s policies and procedures

13. The residential care charging booklet explains if someone needs care, it will carry out a financial assessment. This calculates how much the individual contributes towards the cost of their care.
14. The Council pays the care home directly and invoices the individual for the amount it has calculated they need to contribute.
15. An individual can choose a care home which is more expensive provided someone else, such as a friend or relative is willing to pay the additional cost. This is called a third party top up. The person paying the additional cost will have a separate third party top up contract with the Council. The Council will pay the care home and collect the additional payment from the third party.

What happened

16. I have summarised below the key events; this is not intended to be a detailed account.
17. The Council completed a Care Needs Assessment for Ms M in December 2023. The Council started provided care for Ms M in her home from around this time.
18. Ms D provides some care for her mother and assists her with her finances.
19. Ms D started to make general enquiries in February 2024 about respite care for her mother. The social care officer emailed Ms D about the fees and attached a copy of the charging policy. It explained Ms M must make a financial contribution towards the fees and a third party may pay a top up if required.
20. Ms D planned to go on holiday in the summer and needed respite residential care for her mother. She made further enquiries. At the beginning of June, the Council emailed Ms D and explained the costs of the residential respite care for Ms M. They explained if the family prefer a certain care home which is more expensive than the Council’s guide price, a third party top up is required. The person receiving the care would also need to pay an assessed contribution towards their care, according to the financial assessment. It sent a copy of the charging for residential care booklet to Ms D.
21. Ms D had already independently booked her mother into a care home (care home B) of her choice. She emailed the Council and said ‘I appreciate this is my choice... but if anything can be done about a contribution towards the cost – I would be grateful’.
22. Around a week later, the Council emailed Ms D with a list of care homes within its guide price, which would mean no third party had to pay a top up. It also sent copy of the charging letter.
23. The guide price was around £480. There was nothing available for this price so the Council agreed to increase the guide price to around £850. This was the price of the most affordable home (care home A) available. It explained the family could pay a top up fee if they wanted a more expensive care home.
24. In the middle of June, the Council emailed Ms D again about the charges for Ms M’s respite care. It explained Ms D would need to pay the third party top up fee for a care home that was more expensive than the guide price. It also explained Ms M would have to pay her contribution towards the Councils guide price. The email attached a copy of the charging booklet.
25. Over the next few days, the Council spoke with Ms D on the telephone and explained the top up fees and costs of respite care. The social care officer encouraged Ms D to read the booklet which explained the fees and offered a visit from a colleague to answer any questions. Ms D did not accept this offer.
26. Ms D said she preferred her mother to stay at care home B which cost £1,700. Ms D discussed this with the Council which agreed Ms M could receive respite care in care home B, provided a third party paid a top up fee. This was the difference between the cost of care home A and care home B, which was around £850.
27. Later in June, the Council emailed Ms D with details about the charges for the respite placement. It explained Ms M would pay her assessed contribution towards her care and Ms D was to pay the top up amount of around £850.
28. The Council sent Ms D a third party top up agreement which she signed and returned the same day. The agreement said ‘I agree to the above arrangements and in particular I promise to contribute to the figure of (around £850) per week… towards the costs of care for Mother in … care home from the date of admission. I understand this top up charge is paid from my own resources.’ The dates for the respite were included in the agreement.
29. Ms M received respite care at Care Home B in the middle of June 2024.
30. The Council completed a financial assessment in July 2024 for Ms M. It said Ms M was to pay a contribution of around £130 per week towards her non-residential care and around £250 for respite care or short stay residential care.
31. In the middle of July, the Council finance department wrote to Ms D and said the top up fees for her mother’s care were £850. It also wrote to Ms M and said her contribution towards her respite care was £250.
32. In early August, the Council sent two invoices to Ms D. One was for the top up fees to be paid by Ms D. The second was addressed to Ms M for the money she owed towards the respite care she received.
33. In the middle of August, Ms D paid Ms M’s assessed contribution on her behalf. This was £250.
34. In the middle of October, Ms D paid around £600 of the £850 top up fees. This left an unpaid balance of £250 outstanding.
35. The Council sent a further invoice to Ms D for the outstanding £250 in late October. The invoice showed Ms D had already paid £600 towards the £850. Ms D has not paid the amount.

The complaint

36. Ms D complained to the Council in November 2024 about the third party top up and the Councils lack of explanation of the fees for her mother’s care.
37. The Council responded to Ms D’s complaint in December. It did not uphold her complaint. It said the Council advised Ms M would need to pay an assessed contribution towards her care, this was the £250 for which she received an invoice. It explained as Ms M chose to place her mother in a particular care home at a cost above the Council’s guide price, there would need to be a third party top up. Ms D had agreed to pay the top up and had signed an agreement.
38. The Councils complaint response clarified the amounts outstanding. The respite care cost £1,700. The Council had agreed to pay £850 towards the total amount which included Ms M’s contribution of £250. Ms D was to pay the other £850.
39. Ms D complained to the Ombudsman in December. She said she did not understand she had to pay the third party top up cost.

Analysis

Information about the fees

40. As set out above, there are several examples of the Council explaining the fees to Ms D, both those to be paid my Ms M as her contribution towards her own care, and the top up fees to be paid by Ms D. There are several emails which clearly set this out and notes from telephone conversations. The Council explained the fees to Ms D; it is not at fault.
41. The Council sent Ms D copies of charging leaflets and encouraged her to read them. It also referred her to its website where she could find further information. As explained above, the leaflets set out the fees and charges to be paid by the person who receives the care and the third party. The Council gave information to Ms D about the fees. It is not at fault.
42. The Council offered to discuss the fees in person with Ms D, which she declined. The Council has been proactive in helping Ms D to understand the fees. It is not at fault.
43. The email from Ms D to the Council at the beginning of June says she had already chosen a care home for her mother and how much this cost (£1,700). She said she hoped the Council will pay a contribution towards this. This shows Ms D knew how much the care home would be and that she would have to pay something towards it while also hoping for a contribution from the Council.
44. Ms D signed a third party top up agreement in which she promised to pay roughly £850 per week towards the cost of her mother’s care in the chosen care home. The agreement says she understands she was to pay the amount from her own funds. The agreement is clear and contains the specific information which Ms D has signed to say she has understood. The Council is not at fault.

The fees themselves

45. When Ms D agreed to pay the third party top up, she knew how much this would be as it was the difference between the guide price (what the Council would pay for care home A) and the price of her choice of care home for her mother, care home B. The agreement, which Ms D signed, stated the exact price she agreed to pay. The agreement also stated the amount was to be paid by Ms D out of her own funds. The Council explained the amount Ms D was to pay before Ms M went into respite care and before the payment was due. The amount which was clear and precise. The Council is not at fault.
46. During the conversations and correspondence with Ms D about the respite care, the Council made it clear Ms M also had to pay a contribution towards her care. The Council explained this amount was towards the guide price for the care home, so care home A. Ms M’s contribution was not towards the top up fee for care home B, which a third party was to pay. The Council made it clear that Ms M also had to contribute towards her respite care fees.
47. While Ms D knew Ms M would have to contribute towards her respite care fees, she did not know how much this would be. This is because the Council completed the financial assessment in the middle of July, a couple of weeks after the respite stay. While it is preferable for the Council to tell someone how much their care is going to be before it is provided, it told Ms M that Ms D would need to contribute toward her respite care before agreeing to it. Ms D was familiar with paying for care in her own home and was aware she would have to pay towards respite care. The bill addressed to Ms M for £250 towards her respite care was therefore not unexpected. The Council is not at fault.

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Decision

48. I find no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman