Summary: Mrs X complained the Council misinformed the family about Mrs Y’s care options and funding, and incorrectly sent a significant invoice for third party top-up fees. We found the Council was not at fault over the information and support it gave about Mrs Y’s care arrangements and responsibility to pay. However, the Council was at fault for failing to maintain proper oversight of the funding arrangements. This caused confusion, worry and distress which the Council agreed to remedy.

The complaint

1. Mrs X complained the Council misinformed the family about Mrs Y’s care options and funding.
2. Mrs X also complained the Council incorrectly sent a significant invoice (over £50,000) for third party top-up fees.
3. Mrs X said the Council’s actions caused financial hardship and emotional distress.

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The Ombudsman’s role and powers

4. 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)
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(1), as amended)

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How I considered this complaint

6. As part of the investigation, I considered the complaint and the information Mrs X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Mrs 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

Assessment

9. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
10. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
11. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Personal Budgets

12. Everyone whose needs the council meets must receive a personal budget as part of the 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. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.

Charging

13. 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.
14. 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.
15. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.
16. 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.

Top-up payment

17. 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.
18. 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.

19. 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.

What happened

20. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
21. Mrs Y has care and support needs and received a package of care in her home. This consisted of one visit a day to prompt personal care, medication management and meal preparation, as well as managing food storage.
22. Mrs X requested a review of Mrs Y’s care needs in August 2022 because of concerns about Mrs Y’s safety and wellbeing at home, in the community, and online. Mrs X asked for support to move Mrs Y into residential care. Mrs Y’s home was owned by her daughter, who planned to sell it.
23. Mrs Y’s social worker visited Mrs Y on 10 August 2022 to gain her views about her care and accommodation. Mrs Y’s daughter was present at the meeting.
24. Mrs Y’s social worker determined Mrs Y was not eligible for residential care and recommended the family explore sheltered or extra care housing if they were concerned about her living alone. There was no change to Mrs Y’s care package.
25. A meeting took place between Mrs Y’s social worker and Mrs Y’s children on 1 November 2022 to discuss her pending homelessness after the home she lived in was sold. The family were bidding on accommodation through the Council’s housing service but without success. Mrs Y’s social worker explained some available options, including extra care housing, shared lives, private rental, or delaying the house sale. Mrs Y’s children had applied for a warden supported flat and hoped to hear back shortly. Contingencies were discussed and it was agreed Mrs Y’s social worker would contact the Council’s Housing service to ask it to allocate another housing officer, refer Mrs Y to shared lives as an interim measure should no other home become available, and find out how the family refer Mrs Y for supported living as this accommodation does not appear on the Council’s housing bidding system.
26. Mrs Y’s social worker emailed Mrs Y’s children on 3 November about a shared lives vacancy, asking if the family wanted the Council to make a referral.
27. Mrs X told Mrs Y’s social worker the family had arranged for Mrs Y to go into a care home. Mrs Y’s social worker said the care home the family selected had no Council funded beds, unlike a care home where Mrs Y had previously stayed. Mrs X said the family did not like where Mrs Y previously stayed. Mrs Y’s social worker asked about making a shared lives referral. Mrs X suggested the social worker visit Mrs Y unannounced to discuss it.
28. Mrs Y’s family moved Mrs Y into a care home on a temporary basis on 23 November 2022.
29. Mrs Y’s family asked the Council for another assessment in December 2022 because they were concerned about Mrs Y’s ability to continue living independently, and the trauma of moving home could cause further deterioration in her cognition. The family considered Mrs Y needed support in a residential care setting to maintain her safety and wellbeing.
30. Mrs Y’s social worker remained of the view that Mrs Y’s current needs did not indicate she required residential care. They discussed the possibility of Mrs Y moving into sheltered housing.
31. Mrs X told Mrs Y’s social worker that her family supported Mrs Y to privately fund respite care at the care home while waiting for a sheltered housing vacancy or a property with the Council’s housing service. Mrs X asked if the Council could fund Mrs Y’s respite care since 23 November. Mrs Y’s social worker said the Council would not fund an emergency placement at the current care home. Mrs X asked if the Council would instead offer its standard emergency placement funding and family members could pay a third-party top-up fee for Mrs Y to stay at the current care home. She said Mrs Y’s savings would run out in January 2023.
32. Mrs Y’s social worker agreed to request funding for an emergency placement from 23 November 2022 until 25 January 2023.
33. The Council agreed to offer funding of £660.57 a week for Mrs Y’s respite while she awaited new accommodation. This started from 20 December 2022.
34. Mrs X emailed the Council on 3 January 2023 saying the family did not feel sheltered housing was a good option, given their safety concerns about Mrs Y over Christmas.
35. Mrs Y’s social worker telephoned Mrs X on 10 January 2023 to advise on the funding agreement and rate. This was after the family tried to contact the Council. Mrs Y’s social worker explained a third-party top-up was needed. They said once the Council started making payments to the care home, the home will need to reimburse some of the fees the family has already paid. They also said the Council needed to complete a financial assessment to determine Mrs Y’s contribution to the fees. Mrs Y’s social worker said the Council could source an alternative long-term residential placement if the reassessment determined Mrs Y needs 24-hour care. They reiterated the Council would not fund the current care home as the cost was not best value for the Council.
36. Mrs Y’s social worker spoke to Mrs X on 30 January. Mrs X said the Council had not explained anything to her about funding. Mrs Y’s social worker discussed the third party top up form needed for temporary funding and the financial assessment for Mrs Y’s contribution.
37. Mrs Y’s social worker held a planning meeting with Mrs Y’s children on 17 February 2023. They discussed Mrs Y’s temporary placement at the care home, the third party top up fee form, and Mrs Y’s financial assessment which was not yet completed. Mrs Y’s family agreed to sign the top up fee form that day and give bank statements to the finance team for the financial assessment. The social worker recapped what the Council had agreed to fund as a temporary measure and this was subject to Mrs Y making an assessed contribution, likely to be substantial. They also said the family need to pay the top up fee to the care home directly. Mrs Y’s family said this was not sustainable long term and money from the property sale would not fund a permanent placement. The social worker said the Council could support the family to transfer Mrs Y to another home as an interim measure, pending availability for sheltered housing, if the top-up fee was not sustainable.
38. The Council wrote to Mrs X and Mrs Y’s son about the family’s request for funding help with the fees for Mrs Y’s respite care home placement on 17 February 2023. It said the cost of Mrs Y’s care home is £1,400 a week, which is higher than £660.57 a week the Council agreed to pay to meet Mrs Y’s needs. The Council said it was agreeing to the family’s request for help on the basis they pay a top-up fee of £739.43 a week to make up the difference. The Council asked Mrs X and Mrs Y’s son to sign to confirm they could meet these fees for the foreseeable future. The Council also said it was agreeing to give financial support as a temporary measure from 20 December 2022.
39. The Council then authorised an extension of Mrs Y’s personal budget for four weeks pending alternative accommodation being sourced.
40. Mrs Y’s social worker emailed Mrs X on 27 February 2023 about a sheltered housing vacancy with a sleep warden if the family wanted to make enquiries. Mrs X told me the placement could not support Mrs Y’s needs.
41. Mrs Y’s social worker emailed Mrs X on 2 March asking the family to sign another top up fee agreement.
42. The Council completed Mrs Y’s financial assessment on 9 March. It calculated her contribution for the temporary placement was £309.21 per week. It wrote to Mrs X confirming this.
43. Mrs X and Mrs Y’s son signed the top-up fee agreement on 10 March 2023.
44. Mrs X asked the Council to reassess Mrs Y’s needs in June 2023. Mrs Y’s temporary placement was due to end on 21 June, and her family were concerned her memory and physical health had deteriorated to the point where she needed a permanent care home placement to meet her needs. The family asked the Council to fund this.
45. Mrs Y’s social worker acknowledged the risk of moving Mrs Y to new accommodation after seven months in a care home, and agreed to submit the family’s funding request to the Council’s senior management for a decision. However, they considered Mrs Y’s support needs may not indicate the need for 24-hour residential care, and that her needs could be met in a less restrictive setting.
46. The social worker’s recommendation was to continue the temporary placement funding while sheltered housing options were explored.
47. The Council agreed to extend Mrs Y’s temporary placement funding until the end of August. It advised her family needed to proactively look for independent living options including shared lives.
48. Mrs Y’s social worker met Mrs Y’s family on 4 August 2023. Mrs Y’s family said they could continue paying the third party top up for about the next two to three months. The social worker recorded the family also agreed that if the Council granted funding for a permanent care home placement Mrs Y would need to transfer to a cheaper care home.
49. Mrs Y’s social worker carried out another needs assessment. They identified risks associated with Mrs Y moving to more independent living, such as the possibility of refusing care, infection and physical deterioration, mismanagement of medication, unsettled behaviour, and being vulnerable to exploitation
50. The social worker recommended the Council fund a permanent care home placement to address Mrs Y’s needs and the risks. This would require a transfer to a cheaper care home.
51. The Council agreed funding for a permanent standard residential placement for Mrs Y on 20 September 2023, and to extend her current care home placement for a month as part of the transfer to a new placement.
52. The Council then spoke to the care home to advise it was now sourcing Mrs Y’s placement.
53. Mrs Y’s daughter emailed the Council on 25 September to say the family had funds for the top up fee until 31 October. She asked the Council to source an alternative care home before then if possible.
54. The Council consulted several care homes, but they either could not meet Mrs Y’s needs or were not suitable.
55. The Council therefore agreed for Mrs Y to remain in the same care home, and it would fund the placement. This was subject to Mrs Y paying an assessed contribution. Mrs Y’s family no longer had to pay a top-up fee.
56. Mrs X emailed the Council on 19 July 2024 about an invoice of £54,530.70 they received for third party top-up fees. Mrs X said the top-up was only in place between 20 December 2022 and 14 February 2023 and the family did not agree to pay a top-up beyond this date, nor did the Council send invoices. Mrs X also referred to a Council email from 7 November 2023 confirming Mrs Y’s care plan was updated to reflect she is a permanent resident at the care home, with an assessed contribution, and no third-party top-up required.
57. Mrs X sent a further email on 21 July 2024 asking what happened to payments totalling £4,200 they made to the care home between 19 December 2022 and 6 January 2023. They said Mrs Y’s family paid full costs from 25 November 2022 until 6 January 2023 when the Council took over the funding, but the Council was to back pay starting from 19 December 2022.
58. Mrs X also said the care home then started billing the family full costs again on 15 February 2023, when the third-party top-up agreement ended, and they paid full costs until 25 June 2023, totalling £26,600. Mrs X said the Council was also paying the care home during this time, and they believe there were duplicate payments.
59. Mrs X queried what happened between 26 June and 31 October 2023, as the family paid the Council £10,265.84 for this period, which they believed was for the third-party top-up fee.
60. The Council said it would adjust the invoice to remove the third-party top-up charges and check the family had not been overcharged by the care home.
61. The Council emailed the care home in August 2024 saying the family paid £62,400 to them for Mrs Y’s care, and the Council also made payments, so the care home had been overpaid.
62. The Council emailed Mrs X in September 2024 confirming the care home would refund the family the overpaid fees. It said the family can use the refund to pay the third-party top-up fees between 20 December 2022 and 30 August 2023.
63. Mrs X asked the Council for evidence the family agreed to pay the top-up after February 2023.
64. The Council sent Mrs X a copy of the agreement signed on 10 March 2023, agreeing to pay the top-up from 20 December 2022 onwards. The Council also referred to a meeting with the family on 4 August 2023 where the family confirmed they were able to continue with the top-up for about two to three months.
65. Mrs X complained to the Council in October 2024. She said an officer blocked Mrs Y’s care and was dishonest about funding. Mrs X said the Council had 8 months’ warning Mrs Y needed support, but it did not provide any. The family denied rejecting any offer of support.
66. The Council said it worked with the family to secure alternative accommodation ready for the sale of Mrs Y’s home. Its assessment at that time showed Mrs Y’s care needs could be met in her own home. It gave the family information about alternative accommodation, including shared lives. The family had not secured alternative accommodation when Mrs Y’s home was sold so they arranged private respite care for four weeks. As Mrs Y’s needs could be met in her own home, the Council did not provide funding for this period of respite.
67. The Council said Mrs Y’s family asked for another needs assessment, which it agreed to do once she moved into residential care. It told the family if Mrs Y needed 24 hour care she would need to move to an affordable care home in line with her personal budget, or the family could consider paying a third-party top-up fee.
68. The Council said its assessment showed Mrs Y could be supported with care in her own accommodation, but it agreed a personal budget at market value for the period 19 December 2022 to 14 February 2023 to allow time to source alternative accommodation. It also said if Mrs Y wanted to remain in the same care home for this period the family would need to pay a top-up fee.
69. The Council said it agreed to extend funding for Mrs Y to remain at the care home beyond February 2023, with a top-up required. It acknowledged receipt of the top-up form in March 2023 and asked the family if they were still looking at sheltered housing, and if they still wished to pay the top-up for Mrs Y to stay at the care home until a vacancy became available. It said if this was not an option it could explore moving Mrs Y to a block funded placement.
70. The Council said it continued to work with the family to look at alternative accommodation after Mrs Y’s temporary placement was extended.
71. The Council acknowledged delay sending invoices for the third-party top-up and apologised for the inconvenience this caused. It also said its finance team now sends invoices for third-party top-up fees on a four-weekly basis.

My investigation

72. Mrs X told us the Council misinformed the family about the funding and care options available for Mrs Y. She also said the Council sent an incorrect bill demanding over £50,000 which took months to unpick and which the Council did not apologise for.
73. Mrs X said the Council lied about why Mrs Y needed to pay for her own care and did not provide evidence the family asked for.
74. Mrs X considers the family should not be liable for the outstanding money owed for Mrs Y’s care dating back to February 2022.
75. The Council told me Mrs Y’s family said they could continue to pay the third-party top-up fee until October or November 2023.
76. The Council confirmed the invoice of £54,530.70 which it issued contained top-up charges up to 23 June 2024. However, it corrected the invoice, and only charged the top-up fee up to 30 August 2023. This reduced the invoice to £26,830.75.
77. The Council also confirmed the care home refunded the family the money they paid between 20 December 2022 and 18 May 2023 when the Council had taken over funding and there were duplicate payments.
78. The Council told me Mrs Y remains in the same care home, funded by the Council with an assessed contribution from Mrs Y.

Analysis

79. The Council carried out assessments of Mrs Y’s care and support needs in August 2022, before she went into a care home temporarily, and then in December 2022 and June 2023, after she moved into the care home. At each of these assessments the Council concluded Mrs Y did not need 24-hour residential care, and her needs could be met in a less restrictive way in the community.
80. Those assessments were conducted with the input of Mrs Y’s family, and later involving her advocate and care home staff. Ultimately the decision on whether Mrs Y needed a care home placement was down to the professional judgement of qualified social workers. While I appreciate Mrs Y’s family felt she did need a care home placement, I have not seen evidence of fault in those assessments. I therefore cannot question the outcome.
81. In response to my draft decision, Mrs X told me an expert in the type of dementia Mrs Y’s suffers from was of the opinion that living alone at this stage of the illness is generally not advised. I found the Council considered this expert opinion when assessing Mrs Y’s needs in 2022. However, the Council decided Mrs Y did not yet present as needing full-time residential care. That was a professional judgment which I found the Council reached after considering the relevant medical evidence, the views of Mrs Y’s family, the views of Mrs Y, and with input from the care provider at the time. I therefore cannot criticise the decision.
82. Mrs Y’s family chose to place her in a care home temporarily when her daughter sold the home Mrs Y was living in. The Council told the family it would not fund the family’s chosen placement and mentioned a care home Mrs Y had stayed in temporarily before as being the normal level of funding. The family did not want Mrs Y to stay in that care home again.
83. I found the Council’s adult social care service gave the family suitable advice and support relevant to Mrs Y’s circumstances. The Council did not consider Mrs Y needed 24-hour residential care, so gave the family information about alternative accommodation. It is unfortunate the family could not secure alternative accommodation, but I did not find that was the fault of the Council.
84. When the Council assessed Mrs Y again in August 2023, it concluded Mrs Y did need a care home placement. That was after Mrs Y had been in the care home for nine months, and the Council considered there were risks associated with Mrs Y living more independently again. I did not find fault with that assessment or decision.
85. The Council initially looked to move Mrs Y to a care home in line with her personal budget. However, when this was not possible the Council supported Mrs Y to remain at the same care home without the family needing to pay a third-party top-up fee.
86. I did not find the Council misinformed the family about funding and care options available for Mrs Y. It gave consistent advice about the level of funding it could provide, the need for Mrs Y to contribute, and the need for the family to pay a top-up fee if they wanted Mrs Y to remain in the same care home. I also saw evidence the Council was consistent in saying Mrs Y could move to a different care home if the top-up fee was unaffordable, and consistent in terms of the alternative housing options before the point when Mrs Y needed 24-hour residential care.
87. The Council told Mrs Y’s family to pay the top-up fee to the care home, which they did. The initial top-up fee agreement was temporary and only ran until 15 February 2023. On the evidence seen, the care home then billed the family the full costs of Mrs Y’s care. However, the Council had extended the temporary funding arrangements and continued to make payments to the care home. The family had also agreed to continue paying the top-up fee, and signed a further agreement which did not have an end date. I have not seen evidence the Council made the care home aware of the funding arrangements. This meant the care home received duplicate payments from the Council and Mrs Y’s family.
88. The Council also incorrectly charged the family for the third-party top-up fee after the agreement ended.
89. The Council failed to maintain proper oversight of the funding arrangements when it took over commissioning Mrs Y’s care. That was fault.
90. This caused the family confusion, worry and distress. It also put them to the inconvenience of having to clarify the matter with the Council and seek a refund from the care provider.
91. The Council accepted it sent an incorrect invoice to the family of over £50,000. I found the Council adjusted the invoice and Mrs Y’s family received a refund from the care provider. The Council also agreed to only charge the top-up fee until the end of August 2023, rather than October or November.
92. I did not see evidence of fault on which I could recommend the Council waive the fees for Mrs Y’s care. Mrs Y received the care and, on the evidence seen, the Council gave the family information on several occasions about Mrs Y’s responsibility to contribute to the cost of her care, and about the need for the family to pay a top-up fee, which the family agreed to do. The Council was at fault for confusion around who the family paid fees to and when, but that does not mean the fees should not stand.

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Agreed Action

93. Within four weeks of my final decision, the Council will:
• Apologise to Mrs Y’s family for its failure to maintain proper oversight of funding arrangements, resulting in duplicate payments and a substantial incorrect invoice.
• Pay Mrs Y’s family £200 in recognition of the distress and inconvenience suffered.
• Review the complaint and consider learning it can take to ensure it maintains proper oversight of funding arrangements when it takes over the commissioning of someone’s care in a care home.
94. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

95. I found the Council was not at fault over the information and support it gave about Mrs Y’s care arrangements and responsibility to pay. However, the Council was at fault for failing to maintain proper oversight of the funding arrangements. This caused confusion, worry and distress.

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Investigator's decision on behalf of the Ombudsman