Council urged to review all residential care placements since 2020 after failing to give family ‘genuine choice’

Ombudsman says Dudley should pay back top-up fees after not providing a care option within personal budget, and warns council ‘same principles’ should apply to other affected families, in light of previous complaints

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A local authority has been urged to review all residential care placements since 2020, after an investigation found it had wrongly charged a man top-up fees for his mother’s care.

The Local Government and Social Care Ombudsman concluded Dudley council had not offered ‘genuine choice’ to the man, ‘Mr X’, after it failed to present an available care home placement for his mother, ‘Mrs Y’, within their personal budget. This left him no option but to pay top-up fees.

The Care Act’s statutory guidance says that councils “must ensure that the person has a genuine choice of accommodation” where it has been determined that a person’s needs are best met in a care home. This means that there must be one available and affordable option within the person’s personal budget.

In 2017, a previous ombudsman investigation uncovered similar failings within the council. In its report the watchdog expressed concern that issues had reoccurred, with the council “appearing to have again failed to offer a placement that did not need a top-up”.

As a result, the ombudsman warned the council that the nature of the failings around top-up fees could have affected more service users.

As well as apologising to Mr X and refunding him, it said every person entering council-funded residential care since January 2020 should have their case reviewed to see if they pay a top-up fee and if they should be offered a refund.

For six months after the issue of the 2021 report, complaints from families not offered an alternative placement within their personal budget at any time since the 2017 investigation must be assessed according to “the same principles”, the ombudsman said.

‘No evidence’ Dudley offered affordable residential care

Mr X’s complaint concerned both the circumstances that led to his mother’s admission into care and the council’s role in moving her into a home. Mrs Y fell as her stairlift was left in an incorrect position, leading to a fall requiring hospitalisation – for which the ombudsman concluded the council was not at fault.

After a period in a respite care home, Mrs Y was assessed for a residential care placement.

Mr X was given a list of 41 care homes by the council, of which two accepted residents at the council-funded rate.

Mr X visited one of those homes, ‘home A’ which accepted residents at the council funded rate, but had no places available. He visited six others which all charged top-up fees.

Mr X wanted Mrs Y to go into home A, but since this was not possible, he agreed to a top-up for another, ‘home B’.

“Our investigation has found no evidence Dudley council offered the family an affordable placement with an available room, at the time his mother needed to be accommodated,” said Michael King, the Local Government and Social Care Ombudsman. “Because of this, the council should not have charged the son a top-up fee.

“We published a public interest report about Dudley council in 2017 concerning similar issues and at the time it agreed to improve the way it dealt with third-party top-up fees,” King added. “I am concerned the council has not fully learned from this and we have had to issue this second report.”

Dudley council has accepted the ombudsman’s recommendations and volunteered to make further changes including staff training and procedural changes.


4 Responses to Council urged to review all residential care placements since 2020 after failing to give family ‘genuine choice’

  1. Gerald August 25, 2021 at 9:19 am #

    As far as I am aware this is happening all over the Country, there is also a confusion confusion over Nursing Care and Residential Care and some Councils are confusing the two and making Nursing Care means tested with regards to the Accomodation ,surely this is incorrect ?

    • Ian W August 26, 2021 at 12:57 pm #

      There are two types of nursing care –
      Funded Nursing Care – an NHS ‘top up’ to the residential fees where a nominal nurse input is required – eg daily dressings – that the NHS District Nurses would normally do but choose not to. The ‘residential’ component often remains unchanged as they are only receiving partial Nursing.

      Continuing Health Care – CHC – Full NHS funding due to complex needs. Often tho this is shared by LA and NHS but should not have a top up.

  2. Belinda Schwehr August 26, 2021 at 7:50 am #

    And not just happening all over the country – the picture is muddied by lack of clarity about the national NHS arrangements for step down care for 4 weeks after hospital – because that system does not involve choice of accommodation rights at all, even if the NHS discharge team is using local council social workers to liaise and communicate, in order to get people out quickly.

  3. Suzie August 31, 2021 at 6:24 pm #

    A very complex area – apparently I confused someone when I explained about the expensive home they had chosen they would need to be a third party top up, but if there were not local authority or other placement available below that cost they a top-up is not expected. Marked down for confusing someone!!!