Decision date: 26/02/20
Ms Y is an elderly lady who was receiving care in the Elderly Mentally Infirm (EMI) section of a Council-funded care home (Care Home A, a residential care home). She went into hospital in 2019 where the NHS agreed to provide the Funded Nursing Care (FNC) element for a nursing home placement pending an assessment of her needs.
A social worker (Social Worker A) met with Ms X, Ms Y’s daughter, in March to discuss a move to a nursing home. Social Worker A advised that Ms Y would need a ‘dual registered care home’ in case her needs lessened, or her condition improved, despite the fact that Ms Y’s needs had not yet been assessed. Social Worker A claimed that at this point that she gave Ms X a copy of the Council’s booklet on residential charges. On the same day, Social Worker A made a referral to the Council’s care home support service, which said Care Home A had refused to take Ms Y back, perhaps because she now had FNC funding. The social worker expressed her opinion that Ms Y did not actually ‘need’ specialist EMI nursing but nothing came of that viewpoint.
Several care home options were provided to Ms Y, but she said that each was either too expensive or had refused to take her.
Social Worker A ultimately purported to undertake a ‘proportionate assessment’ of Ms Y’s needs which stated that 24 hour nursing care (not EMI nursing care) should be able to meet her needs as her EMI behaviours were not currently having too great an impact. There was no evidence that she set Ms Y a personal budget.
In the following days Social Worker A contacted Ms X who expressed concern that there were no suitable care homes that the family could afford to top up, for placing Ms Y in, under a council contract. Social Worker A told Ms X that the Council would not help with top up fees, despite failing to identify a suitable home within Ms Y’s personal budget. She instructed Ms X to arrange an admission assessment for Ms Y when the family eventually found a care home that they liked – whereas assessment must in fact be arranged by the council who is going to be buying the placement. This was Care Home B. There was no judgment made by the social worker that Care Home B was even suitable, however.
Ms Y began her placement at Care Home B on April 1st; it was a council placement with an NHS contribution of the FNC element, plus third party top up. However, neither she nor any of her family members had signed a contract for paying a top up, or any third party top up agreement with either the council or the home. The Council transferred her case to Social Worker B.
The NHS reassessed Ms Y as having no nursing needs in May and withdrew the FNC, leaving the family unable to afford the placement at Care Home B.
Ms X contacted Social Worker B the next day to express her desire to complain about the withdrawal of FNC to the Council and to the CCG. Ms X said that Social Worker B insisted she complain only to the CCG and initially refused to provide any email address where she could register a complaint, stating that her personal address was ‘not secure’. Four days later, Social Worker B contacted Ms X to say that the decision to withdraw FNC was final and to explain that the Council would find suitable accommodation if the family could no longer afford the fees.
Ms X complained to the Council and then to the LGSCO. The CCG decided to reinstate FNC 7 months later in December and to backdate the payments, (presumably as a result of a complaint.) The Council provided the Ombudsman with a top up agreement for Care Home B, in which a relative agreed to pay the top up directly to the home. It lacked several pieces of information that are fundamental in order to comply with the Care Act 2014 statutory guidance, namely:
- The amount to be paid
- The frequency of payments
- The amount in Ms Y’s personal budget that was specified for the care together with the accommodation
- Provisions for reviewing the arrangement
What was found
Ms Y was assessed by Social Worker A as needing 24 hour nursing care. However, a full and proper needs assessment was never completed and the ‘proportionate assessment’ failed to set out any nursing needs to underpin that conclusion. This suggests that she did not follow a proper decision-making process, and is fault.
Social Worker A also failed to ensure the suitability of Care Home B.
The Council could not provide evidence that it had considered the suitability of any of the care homes it had offered Ms Y or whether they could be paid for in full by her personal budget. Nor could it provide evidence that Care Home A had actually reassessed Ms Y or even formally refused to take her back. It never actually set a personal budget for Ms Y and therefore could not possibly consider it, when establishing a top up fee. Moreover, it failed to ensure that the family were fully informed about the fees or whether they would be able to meet them if FNC was withdrawn.
The Ombudsman noted that the Council’s booklet on residential charges was not in line with the guidance set out in the Care Act 2014. It says that the top up fee is relative to the Council’s ‘standard rate’ instead of the personal budget of the service user and tells people to contract directly with care homes regarding top up fees. This double fault may have led to injustice for many others.
Calderdale Metropolitan Borough Council has agreed that it will, within one month:
- Pay Ms X £300 for the distress it caused her
- Refund the family the full amount that they paid in top up fees to Care Home B
- Undertake a full and proper needs assessment for Ms Y and continue to pay all fees until this completed and it has found her a suitable care home within her budget
- Ensure that the Council contracts directly with Care Home B in the future
And within 3 months it has agreed to train staff on the care planning process and amend its literature to ensure both are compliant with the Care Act 2014 statutory guidance
Points for the public, councils, attorneys, advocates, charging and finance teams and commissioners.
It’s been the law for the last 20 years, at least, that top up commitments cannot be put into a direct contract with a care home. We cannot understand how after 5 years of the Care Act, ANY council can still be referring to the standard rate, and still be making the relatives go out and choose from homes that are more expensive than the budget that is being imposed on the person.
All we can say is that this is the law:
When a person needs to go to a care home, they will be offered a personal budget relative to their needs. IF they need nursing care, the rate will be higher for the placement than if they just need residential care. The FNC element is not part of anyone’s personal budget. It is a direct NHS contribution to the overall cost of a placement in a care home with nursing onsite.
The personal budget cannot be arbitrary – and it cannot be arbitrarily low, in relation to the actual cost to the council of sourcing adequate numbers of adequately suitable placements for the anticipated throughput of local applicants for Care Act support. It should not automatically default to the cheapest rate secured for any old care home with a space in it, or to any other arbitrary figure.
The budget has to relate to the assessed needs and the market cost, locally, of meeting those needs, suitably and appropriately.
The Care Act gives people a right of Choice of Accommodation of this nature – and that means that a person can go out of area if they want to, and the budget set will have to take account of the likely costs in that area.
The right turns about suitability, availability, a willing provider, and the COST. If the COST is more than the personal budget, once that has been set lawfully, then the person has to source a top up to assert their choice of preferred accommodation, and this must be written up clearly and in accordance with relevant regulations.
There might be many care homes that are OPEN and with vacancies which are not able to be regarded suitable to the person’s particular needs; the care manager is the decision maker about excluding those from the selection process, even if they are ‘wanted’.
There may be others that are suitable and appropriate but where the price of admission is more expensive, than the person’s personal budget, on account of luxury within the environment being more than is needed, as such, but inseverable from the concept of what does have to be bought by the council (things like wallpaper, fittings, environment, meal quality etc). The home needs to be able to explain why their price is on account of wants and not just meeting the needs being commissioned for.
One can only access those levels of care hone if there is a means to pay the shortfall without using the person’s own money between the lower and higher thresholds – usually a relative or third party’s willingness to pay that extra bit.
There will also be homes that are wanted, and suitable and appropriate but which have no vacancy or are run by providers who simply don’t want to do business with the council, because of its other terms and conditions or commissioners’ policies. One cannot choose to go into a home where there is no vacancy, and no willing provider to the council, however much one likes it.
The council making the placement must contract to pay for the entire amount of the placement, and CAN, if both the care home and the person paying the top up are willing, agree that the home should be paid directly simply for convenience (not legal liability). So, the council pays the shortfall then, and the person pays their charges to the home, if it’s been agreed, and the top up source pays the top up to the home. But the council is and MUST be liable for the whole amount directly to the care home.
The family are not decision-makers as to suitability or whether they themselves constitute an acceptable source of a top up: at most they are best interests consultees, if the client awaiting a placement lacks capacity. The council is the decision-maker, as with all publicly funded care packages. But public law says that councils must take account of all relevant considerations, including emotional and psychological wellbeing of the person, and the suitability of any accommodation that they are currently in, or in which they are proposed for placement.
That is an unavoidable part of a Care Act process and not one that can be done by what is called, disingenuously, a ‘proportionate assessment’ when what is really being recorded amounts to little more than a litmus paper screening test for ‘which patients needs a nursing/residential care home?’
In any hospital discharge situation, even if CHC decision making has been deferred until someone stabilises, or suspended altogether because of Covid-19 and the need for even more rapid discharge and freeing up of beds, an NHS nursing needs assessment is a critically important part of a proper decision making process about the rights and obligations of the patient to ongoing NHS input of some or all of the fees.
Qualifying for FNC doesn’t mean that ONLY a nursing home could possibly meet the needs, but it is a relevant consideration.
If no accommodation is available within the personal budget the council must arrange care in a more expensive setting and adjust the budget to ensure that needs are met. In such circumstances, the council must not ask for the payment of a ‘top-up’ fee.
Statutory guidance says the Council must ensure at least one care option is available that is affordable within a person’s personal budget. It means one suitable adequate appropriate option, to be lawful, in fact. Not Falling Villas, where nobody would put their worst enemy.
If the number of care homes in an area charging top ups for care home admission for council clients with a particular profile of need/categorisation, is more than about 30%, the likelihood is that the amount being paid for care packages in framework agreements by the commissioners is insufficient to enable care homes to stay in business; and in that situation, both the homes and the councils concerned are using top ups as a collusive bridge to sort out the problem that the government doesn’t give councils enough money to discharge their Care Act duties, by getting the relatives of those living in the area to pay for a part of the package that is clearly on account of eligible assessed needs, and not conceivably for mere wants.
Challenge in that sort of a situation was clearly contemplated by the cunning draftspersons behind the Choice Regulations: there is a ready-made piece of face-saving regulation that specifically allows a council to negotiate a smaller top up than was first thought necessary, so that it need never be successfully judicially reviewed for arbitrarily low personal budgets or inadequate regard to the true cost of care in the local market, when framing new procurement exercises.
If one is the resident not able to exercise one’s choice, because of the massive size of the top up, for the particular home wanted, and one manages to get oneself represented on legal aid for the purposes of a judicial review challenge to the size of that top-up, and the arbitrarily low fee being paid for the care you have been assessed as needing, one can often find that the funding will be pulled from under one, by virtue of settlement outside the door of the court, with an increased offer of a personal budget, made under this regulation:
Regulation 5(6) of the 2014 of the Care and Support and After-care (Choice of Accommodation) Regulations:
(6) For the purposes of this regulation the additional cost that is to be met by the payer may be less than the full amount of the additional cost referred to in section 30(3) of the Act, if the local authority agrees that a lesser amount should be paid.
In this case, the recommended remedy for repayment of the full amount of the top-ups paid is a form of restitution required for breach of the Care Act, in terms of returning Ms Y and her family to the financial position they would have been in, had the law been followed properly. That is why councils cannot afford NOT to follow the Care Act, if they wish to retain the trust and confidence of providers and clients alike.
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The full Local Government Ombudsman report on the actions of Calderdale Metropolitan Borough Council can be found here: