A council “ignored fundamental concepts” about top-up fees contained in guidance on the Care Act 2014 in a case where it placed a man in a care home on an emergency basis.
The Local Government and Social Care Ombudsman found Lincolnshire Council did not tell the man’s family about the options available when he was placed in the home.
The family had to pay a ‘top-up’ fee when the council should have offered them the choice of a home which did not require the additional amount. When they struggled to pay the fee, the care home threatened to evict the man, known as ‘Mr C’, who has dementia and physical disabilities.
The Ombudsman said Lincolnshire should have paid the full cost of the man’s care since it had not found a home without a top-up fee.
Fault was also found with Lincolnshire informing the man’s daughter, ‘Ms B’, that it did not become involved in the top-up agreement as this was a matter between the care home and the person paying the top-up fee. The council has since changed its procedures and social workers now become involved in the signing of top-up agreements.
Lincolnshire also failed to offer the man’s wife, ‘Mrs C’, the option to pay the top-up fee to the council. It told the Ombudsman it never does this and always expects people to pay the fee directly to the care home. While the council “acknowledges that this is not the preferred option” under the Care Act guidance, it said there was nothing in law that stopped it from adopting that policy, which was “cheaper and less of an administrative burden”.
However, the Ombudsman found the council’s actions amounted to maladministration because it ignored three aspects of the Care Act guidance: that councils “deter arrangements for top-up payments to be paid directly to a provider”; that any arrangement to make payments directly to the provider will only be by agreement with the person; and that councils should consider the individual circumstances of each case.
The Ombudsman said Lincolnshire had “ignored the guidance without adequately providing reasons apart from administrative convenience”, and had “adopted a blanket policy of direct payment to the care home which is far from the letter and the spirit of the guidance”.
He reiterated previous warnings that local authorities must give families accurate information when placing relatives in care homes, after finding that information about care home fees on Lincolnshire’s website was “unclear”.
The council has accepted the ombudsman’s recommendations that it should apologise to the man and his daughter, reimburse the top-up fee of £65, pay Ms B and the family £300 to reflect their distress, and pay Ms B £300 for her time and trouble pursuing the complaint.
Within six months it should review its procedures to ensure that people are offered the option to pay the top-up fee directly to the council; review its top-up fee contract to reflect the option to pay the top-up fee directly to the council; and review existing top-up agreements to bring them in line with the Care Act.
Care Act guidance on top-up fees
Section 8.37 of the Care and Support statutory guidance says the local authority “must ensure that the person has a genuine choice of accommodation. It must ensure that at last one accommodation option is available and affordable within the person’s personal budget and it should ensure that there is more than one of those options. 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 (‘top-up’). However, an additional payment must always be optional and never as a result of commissioning failures leading to a lack of choice”.
Annex A, section 28 of the guidance says whatever the option chosen, the council remains responsible for the total cost of that placement. If there is a break down in the arrangement to pay the top-up, the council is liable for the fees until it has either recovered the costs or made other arrangements to meet the person’s needs.
Michael King, the Local Government and Social Care Ombudsman, said: “Councils have a duty to provide accurate information to families about care home placements. This is particularly important at times such as this where families do not have the luxury of being able to plan for their relative’s care.
“We issued a focus report on this subject in 2015 and I would encourage anyone working in the field to have a look at the good practice guidance it contains, and check their own policies and procedures to ensure they comply with the Care Act.”
Mr C was living at home with support from his wife and a package for care at home, but at the end of March 2016 his condition deteriorated.
His daughter contacted Lincolnshire asking for urgent help, and it agreed that an emergency residential placement was needed, initially as a respite option.
A social worker found a care home for the man and told the daughter that the council would pay its usual rate but, as the care home’s rate was higher, the family would need to pay a top-up.
The weekly top-up fee was £60, but the family could negotiate a lower price with the care home if it was not able to pay. The daughter thought she had no other option in the circumstances and agreed, and the man moved to the care home on 30 March 2016. The care home reduced the top-up fee to £20.
However, when the man’s account later went into arrears because his family could not afford to pay, the care home threatened to evict him. In a letter sent on 18 May 2016, it said the daughter’s refusal to sign a contract was “duplicitous and unacceptable while you continued to accept a service from the care home”, and that it was taking legal advice.
Instead of the council taking over the payments, Ms B had to find another care home. Only one of 23 she contacted over a weekend did not have a top-up, and Mr C moved there during the following week.
The Ombudsman also found fault with Lincolnshire’s previous policy not to provide personal budgets to residents in care homes despite being under a duty to do so. The council has since changed this and residents in care homes now have a personal budget.
A Lincolnshire Council spokesperson said it had “sincerely apologised” to the man, his wife and his daughter.
“We have already taken action to safeguard people and prevent situations of this nature. Relevant policy and practice changes have been implemented, for example, new guidance and process updates have been issued to all staff regarding placements and third-party contributions. We have robust contract management and work closely with providers and a review is ongoing regarding the process of payment from the council to care homes.”