Decision date: 26/3/2020
Mr B complained on behalf of himself and his mother, Mrs C.
Mr B lived about 100 miles from Mrs C. She lived alone with a support package in place. The report did not specify what support was provided.
At a date not specified in the report, the care agency raised concerns about Mrs C’s safety with the Council (for reasons unknown), which resulted in her going to an emergency temporary placement in a care home. Mrs C paid the Council’s set respite rate for the temporary stay.
The Council completed an assessment which led to a decision that Mrs C needed 24 hour care and that it would be unsafe for her to return home. It also assessed that Mrs C lacked capacity to decide where to live.
During a best interest decision meeting Mr B stated several times that he did not want Mrs C to have to move from the care home she was in, because she had already been there for 10 months and was settled. All parties agreed Mrs C should remain at the placement which originally started as respite.
Mrs C became a permanent resident in September 2018, however the reasons why were unclear as the best interest decision was not made until March 2019.
From the time Mrs C became a permanent resident, Mr B was charged a weekly third party top-up fee of £40 by the Council.
Mr B questioned this but was told if he did not pay then Mrs C could not stay there.
The LGO report stated that the care provider told Mr B the top-up was ‘law’ and the Council said there is no leeway.
The Council said the maximum weekly amount it would pay for a place in a residential care home was £481.The report did not state how much Mrs C’s placement cost, or if there was anyone else in the care home with care costing more than £481.
What was found?
The Council cannot have an arbitrary ceiling to personal budgets. It was fault to say the maximum it would pay for a care home was £481. This could be used as the indicative personal budget, but if somebody’s needs required a more expensive setting, then the Council must adjust the personal budget accordingly and not expect family to fund a shortfall by way of a top-up.
The best interest decision, agreed by all parties, was that Mrs C should remain at the current care home. Therefore, the Council should have increased her personal budget to meet that cost, rather than ask Mr B for a top up. This should apply for the whole of her permanent placement.
The LGO expressly highlighted how worrying it was to hear the care provider tell Mr B if he didn’t pay the top-up Mrs C would have to leave. The Council is liable for the full fees of the contract. If Mr B had stopped making the payments the Council would have had to pay the full amount, until it either recovered the fees from Mr B or made alternative arrangements to meet Mrs C’s needs.
The LGO stated that Mr B should never have felt threatened to pay fees in such a way. If a top-up is appropriate the council must ensure the person is willing and able to meet the additional cost for the likely duration of the arrangement.
The LGO recommended that the Council;
- Apologise to Mr B for wrongly asking him to pay a top-up for Mrs C’s care fees, when the Council agreed it was in her best interests for this care home to meet her needs.
- Pay Mr B £250 to acknowledge his distress, time and trouble.
- Refund Mr B the additional top-up payments he has paid to date.
- Pay the full cost of Mrs C’s care fees at the current placement, until such time as any best interest decision is made that it is in Mrs C’s best interest to move. As with any change in circumstance, the Council must undertake a new assessment before considering this course of action, including consideration of a requirement for an assessment of health needs, and have regard to Mrs C’s wellbeing.
- Remind relevant staff that they cannot have an arbitrary ceiling to personal budgets. The £481 is a guide as to what is available within the local market but cannot be the maximum the Council will pay if someone’s needs require a more expensive setting, or a setting within that budget is not available.
Points to note for the public, service users, hospital leavers, family and peer supporters, advocates, and councils etc
The LGSCO quite rightly identified that this council erred in its decision-making and allocation of Mrs C’s personal budget. The budget has to be sufficient and adequate to meet the person’s needs, so an arbitrary amount of £481 is not a figure that can be applied in all circumstances as a blanket decision. The Department of Health Statutory Guidance states this:
11.10 The personal budget must always be an amount sufficient to meet the person’s care and support needs, and must include the cost to the local authority of meeting the person’s needs which the local authority is under a duty to meet, or has exercised its power to do so. This overall cost must then be broken down into the amount the person must pay, following the financial assessment, and the remainder of the budget that the authority will pay.
Mr B felt compelled to pay a third-party top-up to enable Mrs C to remain in the home she had moved to temporarily. it appears that the comments from both the provider and the council were wrong. Of course the council would have ‘leeway’ and the law is clear. The guidance assists again for those wanting clarity on this issue:
11.14 Similarly, there will be cases where a person or a third party on their behalf is making an additional payment (or a ‘top-up’) in order to be able to secure the care and support of their choice, where this costs more than the local authority would pay for such a type of care. In these cases, the additional payment does not form part of the personal budget, since the budget must reflect the costs to the local authority of meeting the needs. However, the local authority should consider how best to present this information to the individual, so that the total amount of charges paid is clear, and the link to the personal budget amount is understood.
Applying this to Mrs C’s situation, the facts of this complaint suggest that there was a funding shortfall which is a commonly experienced scenario in Adult Social care, especially where a council uses a ‘rates’ based approach to its funding decisions. Where someone moves into a residential placement whether by their own choice and then falls below the threshold for the council to fund their care or by the council ‘placing’ the person as happened with Mrs C, councils will often reach a crossroads where they are considering moving the person rather than paying an additional amount if a cheaper option had not been available.
Where this arises, the council is obliged by the care Act 2014 to consider the person’s wishes and beliefs and take into account the impact on the person’s well-being. The option of a third-party top-up exists to facilitate a wider choice than the council will make when funding a care home placement, but for Mrs C, the council had assessed her as needing 24-hour care and deemed this particular home as the best way to meet those needs.
She had been there on a temporary basis for ten months and then the council decided it would make a best-interest decision about its longevity. This decision took the council from September 2018 when it decided she should remain as a permanent resident until March 2019, yet the council started to charge the additional top-up from the date it made the placement permanent. This resonates with different departments within councils doing different things and information systems driving charging processes. The LGSCO finding that the council should not have asked Mr B to fund a shortfall from the point the best-interest decision was made was a right one and this we fear is happening in many councils where individuals are not aware of their rights and councils want to shirk their responsibilities.
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The full Local Government Ombudsman report of Sheffield City Council’s actions can be found here