A council failed to comply with Care Act guidance after it asked a service user to pay a top-up fee when there was no other affordable care home placement available at the time, the Local Government and Social Care Ombudsman has found.
Lancashire council was not entitled to charge Mrs B, the service user’s wife, a top-up fee for her husband’s, Mr B, care after the watchdog found there was “no evidence” to suggest an alternative care home placement within their personal budget existed.
The ombudsman added the council failed to provide the couple with “adequate information” about affordable care homes after Mrs B told the council she was unable to pay the top-up of the care home Mr B was living at.
Read more on ombudsman investigations on top-up fees:
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This meant she was unable to make an informed choice about her husband’s accommodation as she was unaware of other options at a lower cost, meaning he remained in the same care home for almost two years.
Lancashire council has since agreed to revise its third-party agreement form to ensure that it is Care Act complaint.
Struggling to care for her husband
In October 2015, Mrs B contacted the council about a short-term placement for her husband. She said she was finding it increasingly hard to care for her husband, who was displaying aggressive and challenging behaviour, and told the council they would be self-funding the care despite concerns over costs.
The council’s care navigator looked into potential placements for Mr B and identified nine care homes. Care home 1 had the lowest rate at £485 a week.
Despite being presented with numerous options, Mrs B emailed the care navigator to say she was not yet ready for her husband to enter a care home.
In early December, Mrs B was assaulted by her husband, leading the mental health trust to arrange and fund an emergency admission to care home 2, with a two-week placement to assess his needs.
The next day, Mrs B contacted the care navigation team to explain why her husband had been admitted to care home 2 and said she would need help finding an alternative placement for her husband when the two weeks were up. Three homes were identified, with the lowest charge at £600 per week.
On 21 December, Mr B’s social worker visited him at care home 2 and decided he had capacity to make decisions about his care. Mrs B asked her husband to extend his stay for a further two weeks, which he agreed to.
All parties agreed with the extension of the short-term placement, with records showing the couple had discussed and agreed the financial implications of the decision. Mrs B was later sent a copy of the third-party top-up agreement to sign.
In January 2016, the social worker reviewed Mr B’s placement prior to a best interests meeting and noted that Mr B was no longer asking to return home.
This led to Mrs B signing the top-up agreement on 6 January and a further agreement of an increased rate (£60 a week) in August.
Mrs B contacted the council in February 2017, explaining that she was struggling to pay the top-up fee. This prompted the social worker to meet with Mrs B and carry out a financial assessment and review over the following weeks.
Care home 2 was asked if it could reduce the top-up fee, but this was rejected, explaining this covered a full-time activities coordinator, toiletries and staff for residents’ outings.
The council said it offered an alternative placement to Mr B, but this was declined. It then advised Mrs B that Mr B might have to move out of care home 2 if she could not afford to pay the top-up.
No alternative, affordable placement offered
The ombudsman found Lancashire council did not comply with Care Act guidance as it failed to offer Mrs B an alternative placement within Mr B’s personal budget.
Although the watchdog acknowledged Mrs B had signed a top-up agreement, it said there was “no evidence there was a place available for Mr B at an alternative care home within Mr B’s personal budget”, or that the couple were made aware that there was such an option.
“As far as Mr and Mrs B were aware, care home 2 was the home with the lowest charge that was available to them,” it said.
Due to a lack of sufficient information about available options for Mr B, the ombudsman said Mrs B could not make an informed decision about alternative care arrangements. As it failed to demonstrate that alternative accommodation was available, the ombudsman judged Lancashire council were not entitled to charge a top-up fee.
Meanwhile, the ombudsman asked why the council did not question “the long-term sustainability of the couple’s top-up” payments after it found Mrs B had a £100,000 mortgage due in three years and had been advised to apply for council tax benefit due to her low income. It said this oversight called into question “the adequacy of the initial discussions with Mrs B about her ability to pay” additional costs.
Checking Care Act compliance
Lancashire council has agreed to reimburse the payments Mrs B made under the third-party top-up agreement from 23 December 2015 to present.
It also agreed to pay Mrs B interest on backdated payments and will pay her a further £200 as a remedy for the distress caused to her.
In terms of service improvements, the council has revised its third-party agreement form to ensure that it is compliant with the Care Act and will ensure teams are fully aware of the correct procedures and guidance.