Ombudsman criticises council for ‘forcing’ resident to pay unlawful care home top-up

A care home resident was forced to pay an unlawful top-up fee after Tameside Council made changes to the fees it paid her home, a Local Government Ombudsman investigation has found.

The investigation, whose findings have been strongly disputed by the council, was launched after a man complained that his mother had had to pay additional costs for her care after the authority cut the fee it paid her home.

The woman, Mrs Y, who had dementia, moved into the care home in October 2010, in a placement arranged by the council. Under the contract, the authority was responsible for meeting the weekly fees of £470.70 a week, incorporating a £381.70 basic fee, £30 for an en-suite bathroom, £9 for a larger room and a £50 quality premium for the home. Mrs Y made an assessed contribution of £113.20.

In 2012, Tameside reviewed the rates it paid for residential and nursing care placements and decided to introduce a new quality framework for homes to address an oversupply of beds in the borough. Under the framework, care homes providing a high quality of care received an enhanced payment from the council.

Mrs Y’s care home was not admitted onto the quality framework, meaning it could charge council-funded residents what it chose. However, the council also reduced the fees it paid for her care to £382, from March 2013. The council told Mrs Y’s son, Mr X, that, as the home had maintained the same fee of £470.70 he would have to make up the £88.70 shortfall as a top-up payment – but as he did not have these funds he began paying the top-up from his mother’s savings from March 2013 and informed the council of this fact.

Though Mr X believed it was not in his mother’s best interests to move from the home, he asked the council to assess the risk of moving her to another home. However, the council said it would only reassess her needs if it had been decided that she should move, and Mr X appeared unwilling to consider this.

Failure to follow law

The ombudsman, Jane Martin, found that the council had failed to act in accordance with the law and government guidance on choice of residential accommodation arranged under section 21 of the National Assistance Act 1948.

The guidance states that a resident may only top-up their council’s fee if they have a deferred payments agreement or are subject to the 12-week property disregard, otherwise any top-up must be made by a third party. Neither condition applied to Mrs Y, but the top-up came out of her resources.

Also, Martin pointed to the fact that a top-up requires the agreement of all parties, but said it had been “effectively forced” on the family, as Mr X felt there was no option but to make the top-up because of the risks of moving his mother to another home.

The ombudsman also said the council was at fault for not reassessing Mrs Y’s finances after changing her care fees, to check willingness and ability to meet the new costs. 

The report also said the council failed to adhere to the terms of the contract governing Mrs Y’s care, which contained a “legitimate and reasonable expectation” that the council would meet the contractual fees agreed on admission unless there was a change in her needs.

Mrs Y died in March of this year.

‘Significant injustice’

The ombudsman said that Mrs Y and Mr X had suffered a “significant injustice” because of the council’s actions, and recommended that it:

• reimburse Mrs Y’s estate for the full amount of the third-party top-ups that have been made;
• provide Mr X with a full written apology;
• pay Mr X £250 to recognise his time and trouble in pursuing the complaint.

The ombudsman’s report also suggested that a further 160 residents may have been affected by the council’s changes to care commissioning, as they were resident in homes that were not admitted on to the council’s quality framework.

But Tameside council strongly disputed the findings and “categorically denied” that it failed to act in accordance with the law. A spokesperson for the council said that the report was fundamentally flawed and raised questions about whether the ombudsman herself had “unlawfully exceeded” her powers.

The spokesperson said: “The council reviewed its commissioning arrangements to ensure that only those homes that offered the highest standard of care get paid a quality premium rate. This was not about cost cutting.

“Tameside council continues to pay one of the highest care and nursing fees across the North West of England to support the most vulnerable in our community.  The purpose of this change, made in 2012, was to raise and maintain the quality of care in Tameside care homes whilst ensuring they remained financially sustainable.”

Claims rejected by council

The council also rejected the ombudsman’s claim that 160 other residents may have been affected. “This is inaccurate as the information provided by the council makes clear that the number at its highest is no more than 10, who we are in the process of writing to directly,” said the spokesperson.

“As the majority are in the same home, it is important this is kept in proportion, and that the poorer quality homes do not, as a result of this finding, believe they have been given the green light to charge what they like.”

Speaking in response to the case, Janet Morrison, chief executive of charity Independent Age, which campaigns strongly against the wrongful use of top-ups, said: “Too many families now find themselves paying top-up payments, sometimes amounting to be hundreds of pounds a week, for essential care. The root cause of this problem is a residential care system that is chronically under-funded.

“Families are increasingly having to subsidise local councils to meet the costs of care it is really the responsibility of councils to meet, so we need the government to protect people from paying unfair ‘top-ups’ as part of the shake-up of the rules from April 2015.”