Summary: The Council were at fault in how it managed Mrs X’s top-up payments as Mr X was only given the option to pay them directly to the care provider, and they were subsequently increased without proper consideration. The Council has agreed to reconcile the account accordingly, and to reach an agreement on how the cost of Mr X’s care will be managed in the future.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains on behalf of her parents, whom I shall refer to as Mr and Mrs X.
2. Mrs C says the care home, which provides care for her mother, implemented an increase to its fees which was not in accordance with its terms and conditions. Mrs C says her parents have been financially disadvantaged by this decision.

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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. If we are satisfied with a council’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

5. As part of the investigation, I have:
• considered the complaint and information received from Mrs C; and
• reviewed and considered information received from the Council; and
• communicated with Mrs C about the complaint
6. I also sent a draft version of this decision to both parties and invited their comments.

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What I found

Top-up fee guidance

7. The Care and Support Statutory Guidance (CSSG) says councils should deter arrangements for top-ups to be paid directly to care providers. It says: “if the arrangements for a ‘top-up’ were to fail for any reason, the local authority would need to meet the cost or make alternative arrangements, subject to a needs assessment .... Local authorities should therefore maintain an overview of all ‘top-up’ agreements and should deter arrangements for ‘top‑up’ payments to be paid directly to a provider”. (Annex A, paragraph 25)
8. The CSSG identifies three options for collecting top-ups (Annex A, paragraph 29):
• “treat the ‘top-up’ payment as part of the person’s income and therefore recover the costs from the person concerned through the financial assessment (where the ‘top-up’ payments are being made by a third party rather than the cared for person, this is on the assumption that the third party makes the payment to the person with care needs);”
• “agree with the person, the third party paying the ‘top-up’ (if this is not the cared for person) and the provider that payment for the ‘top-up’ element can be made directly to the provider with the local authority paying the remainder. However, as stated earlier, this is not recommended;”
• “the person making the ‘top-up’ payments pays the ‘top-up’ amount to the local authority. The local authority then pays the full amount to the provider.”

What happened

9. Mrs X has lived a care home (The Care Home) since 2015. Her care was funded by the Council, but because her preferred care homes fees exceeded the Council’s standard rate, Mr X contributed a top-up fee.
10. Mr X signed a top-up agreement which stated how much the total cost of care was, how much the Council would pay and how much he would pay. The agreement stated that he would pay the top-up fee directly to The Care Home.
11. The top-up agreement also said that The Care Home may change the total care fee, in accordance with its terms and conditions, consequently the top-up fee would then increase. It goes on to say that any increase would not necessarily be shared equally between the Council and Mr X.
12. Mr X also signed a contract with The Care Home. It stated that fees would be reviewed once a year on 1 September.
13. The Council has a contract with The Care Home, which states that the cost of care will be reviewed every year by the Council in consultation with the Care Home on 1 April.
14. On 1 March 2019, the Care Home wrote to Mrs C to inform her that it had reviewed its fees and was increasing them from 1 April. It said this meant there would be an increase in Mr X’s top-up contributions.
15. Mrs C complained directly to The Care Home. She said the increase to the fees was not made in accordance with its terms and conditions, which state that fees would be reviewed every September, not April.
16. Upon contacting the Council, it told the Ombudsman that there had been errors in communicating information to the family. It said the top-up payments were an agreement with the Council rather than a private arrangement between the Care Home and Mr X.
17. It said that the Council did request payments be made directly to the Care Home, rather than to the Council, and accepted this is not the preferred method of payment, as indicated in the CSSG.
18. The Council said that it was its responsibility to negotiate fee increases with care providers, and then decide what increases should be made to top-up fees.

Analysis

19. Mrs C complains about how the Council managed the top-up fees her father pays for her mother’s care.
20. While CSSG does leave open the possibility of paying a top-up directly to a care home, it warns against this, stating that arrangements should not be the default position but should instead reflect the agreement of all the parties. The Council was therefore at fault for giving Mr X’s family no choice but to pay the top-up directly to her care home.
21. Details about the arrangement were also not clearly communicated to the family, as Mr X was incorrectly told that increases to care fees would be controlled by the Care Home. This is fault as it has led to an increase in the top-up fees, with no consideration by the Council beforehand.
22. The Council said it plans to review Mrs X’s care and support, and will consider a satisfactory financial arrangement between all parties.
23. I consider it appropriate that once this arrangement is in place, the Council refunds the increased charges applied to Mr X’s care cost from April 2019, until the date that the new arrangement is in place.
24. Furthermore, I consider it appropriate for the Council to offer the family an apology for the faults identified and offer a payment of £100 to Mrs C to acknowledge the time and trouble she went to brining this complaint to the Ombudsman.
25. The Council said that it will undertake a review of its processes and written information for third parties and undertake training for staff. I consider it to be appropriate that this review should take place within 3 months, and that the Council shares its findings with the Ombudsman.

Agreed action

26. The Council has agreed, that within 1 month of the date of this final decision, it will:
• Carry out its review of Mrs X’s care and support and come to a satisfactory financial arrangement with all parties, including how top-ups are paid.
• Reconcile Mr X’s account to remove the increased payments he has been billed since April 2019, up until the date the new arrangement is in place.
• Apologise to the family for the faults identified during this investigation.
• Offer Mrs C a payment of £100 to acknowledge the time and trouble she went to bringing this complaint to the Ombudsman.
27. The Council has also agreed that within 3 months of the date of this decision, it will share the findings of its processes and written information for third party top-up payments.

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Final decision

28. I have concluded my investigation with a finding of fault leading to an injustice.

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Investigator's decision on behalf of the Ombudsman