A nursing home resident's family was wrongly charged almost £200 a week in top-up fees because no places were available at her council's usual fee rate, the Local Government Ombudsman has found.
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Top-up fees for care homes: what councils must do
Government guidance issued in 2004 says individuals receiving council funding should be able to choose the care home they live in so long as it meets their assessed needs and does not cost more than their council would usually pay for such a placement ("the usual cost").
The usual cost should be sufficient to meet assessed needs. Where the cost of a place chosen by the family exceeds the usual cost, the council can charge top-up fees to make up the difference.
However, where there are no places available, councils must make suitable alternative arrangements by funding a place in a more expensive home and not charging top-up fees.
The guidance applies to English councils and must be followed other than in exceptional circumstances.
Source: Guidance on National Assistance Act 1948 (Choice of Accommodation) Directions 1992 etc
Mrs Elliott, who has dementia, had to move into a nursing home in July 2011 after a spell in hospital but the cheapest place her family was able to find cost £187.56 more than her council, Southampton, typically paid for places. Government guidance states that when families cannot find suitable accommodation at the council's usual rate the council should help find a suitable place and not levy top-up fees.
While Mrs Elliott was in hospital, her family initially visited five homes: one was not suitable; two did not have a place at the time, including one recommended by the council; and two had places but charged rates that were above the council's usual rate.
The family then asked Southampton Council for a list of suitable homes that met the council's usual rates, but the council could only provide them with one home. While the home offered Mrs Elliott an assessment, her daughter, Mrs Moore, found that there was no place available at the time.
The family then accepted a place at the cheaper of the two available homes. This charged £750 a week, £108.70 of which was met by the NHS for nursing care; however, the remainder, £641.30, was well above the council's usual rate for nursing homes, £453.74, leaving the family with a bill of £187.56 a week.
Wrong to charge top-up fees
The ombudsman found that the council was wrong to charge the top-up fees because there was no accommodation available at the council's rates at the time that Mrs Elliott needed a place.
Southampton Council accepted the findings and has agreed to meet the full cost of Mrs Elliott's care, refund top-up fees already charged to Mrs Elliott's family, and pay £500 to them for distress caused. It has also agreed to review guidance for staff on the availability of services at the council's usual rate and to hold discussions with providers about fee levels.
“We have apologised to the family and will be recompensing them accordingly," said Southampton's cabinet member for adult services, Matthew Stevens.
“At the time we did have some safeguarding issues with a big provider. This coupled with a slightly lower fee rate paid meant that there were fewer homes willing to accept our usual fee rate.
“However, this has been addressed by increasing payment rates for some areas of care provision. The council is working closely with care providers to review fees and fee levels and to arrange short-term placements at homes with our usual rate."
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