Essex County Council at fault for requiring a deposit payment of 12 weeks of top up fees

Decision Date: 7th December 2020

What Happened

Mr C complained on behalf of himself and his mother-in-law, Ms A. 

Ms A had been allocated a personal budget of £585 a week, to help fund a care home placement. 

Mr C chose a care home that cost more than £1,300 a week, for reasons not explained in the report. 

The Council asked Mr C for a deposit payment of 12 weeks of top ups. This amounted to £9,934. Mr C complained that this made a ‘large hole’ in his finances. 

When investigated, the Council told the LGO that they had recently introduced this policy because occasionally people would stop paying the top up fees, and it then takes the Council around 12 weeks to re-home a client to an affordable home. In those circumstances the Council would use the deposit to cover the fees until the person could be moved. 

Mr C had made a Freedom of Information request to the Council regarding this new policy. The LGO highlighted that there was general information on the Council’s website about charging for residential care, but no information specifically regarding the right to choose a more expensive care home, top ups, or a copy of the Council’s Charging Policy for Residential Care. 

Mr C also asked for information relating to how long it takes to re-home a client if the top up stops. The Council told him 12 weeks but did not provide any evidence. 

Finally, the LGO highlighted that it was unclear how often a top up agreement breaks down. 

The Council told the LGO during its enquiries that:

  • it accepted that the requirement of a 12-week advance payment was too onerous and could have impacted on choice.
  • It had written to Mr C offering to lower the deposit to 4 weeks and refund the difference. Mr C finally accepted this offer. 
  • It had also offered Mr C an ex-gratia payment of £150 to remedy the time and trouble he spent on this matter. 
  • It would carry out a full review of the 12-week advance payment requirement, with a view to implement alternative and/or supplemental requirements.

What was found

The Council had recently introduced a policy enabling it to request a 12-week deposit for top-up fees based on its experience of having to find alternative, less costly accommodation for people whose finances drop below the threshold for council funding when a topper- upper ceases to be good for the monetary contribution they have taken on. 

The LGO highlighted that “neither the Care Act statutory scheme, nor the Care and Support statutory guidance (CASS), provides any clear authority for the Council to require a security deposit be paid as a condition of entering into a top-up fee arrangement.” 

It went on to state that “to the contrary, the 2014 Regulations provide that the Council must agree to a preferred choice of accommodation if the criteria in those regulations are satisfied, and the CASS Guidance suggests that the risk of any non-payment is to be borne by the Council (subject to it being able to recover any outstanding fees as a debt).”

The LGO emphasised that a key principle of the Care Act was to promote a genuine choice of accommodation. The approach the Council took in this case did not comply with the Care and Support Statutory Guidance and the Care and Support and After-care (Choice of Accommodation) Regulations 2014. This was fault. 

The LGO stated that if a person is required to provide a 12 week deposit up front, this is very likely to impact on a person’s choice or ability to get their preferred accommodation. This is fault.  There was no reason for the Council to depart from the guidance. 

The LGO agreed with the remedies the Council had already offered to Mr C. 

Points to note for councils, professionals, people who use services and their carers, advocacy providers, members of the public

It is widely known that councils have limited resources with which to meet a lot of demand for care and support under the Care Act 2014. 

With regard to top up (payments for wants rather than needs, so the difference between a sufficient personal budget and a home’s full contractual cost) the council must contract for the full sum but can enter into an agreement with a third party for the difference. 

Any such written agreement must include details of: (i) the consequences of the payer ceasing to make top-up fee payments; and (ii) the effect of a change in the payer’s financial circumstances. Any unpaid top-up fees (along with other charges or fees) may be recovered by the Council as a debt, in civil proceedings, pursuant to section 69 of the 2014 Act.

The rate at which a council is able to do business for the anticipated number of beds needed for its duty to place people in care homes when needed, all depends on the market. Essex faced and won a judicial review about this some years ago, but it is unknown what the impact of that case has been in the area, over the longer term. Councils still have several statutory duties under the Care Act 2014, one of which pertains to commissioning for diversity in general outlined in s.5 – and for choice of a specific care home as the place the council must accommodate the person:

Promoting diversity and quality in provision of services

(1)A local authority must promote the efficient and effective operation of a market in services for meeting care and support needs with a view to ensuring that any person in its area wishing to access services in the market—

(a)has a variety of providers to choose from who (taken together) provide a variety of services;

(b)has a variety of high quality services to choose from;

(c)has sufficient information to make an informed decision about how to meet the needs in question.

This ought to mean that the individual has the means to make a choice about their care. It may be that Mr C had a minimal choice because the market is simply insufficient, the offered price arbitrarily low against the real position in the area, or that he had a preference for his mother-in-law to be cared for in the best home he could find, well in excess of the council’s personal budget allocation to Mrs A. 

The LGO is right in that there is no current guidance that provides for security deposits to be taken for care home top-ups. The CASS guidance states this in relation to top-ups:

8.33 Where a local authority is meeting needs by arranging a care home, it is responsible for contracting with the provider. It is also responsible for paying the full amount, including where a ‘top-up’ fee is being paid. However, where all parties are agreed it may choose to allow the person to pay the provider directly for the ‘top-up’ where this is permitted. In doing so it should remember that multiple contracts risk confusion and that the local authority may be unable to assure itself that it is meeting its responsibilities under the additional cost provisions in the Care Act.

This could have offered Essex an alternative to a policy that impinged on people’s rights under the Care Act 2014. The Council could have agreed that the top-up element of the payment would be paid directly to the provider, even if the liability still had to be the council’s. The key thing is that the council is doing the buying and the contract rate must include the top up. 

The complainant had also made a Freedom of Information request and found minimal information online about the Council’s policy.  The warning to councils is if you are going to use a policy then make it reasonable and make it available. 

The Council had already identified that it needed to review the security deposit requirement within its policy. Whilst we at CASCAIDr can see a rationale for having such a policy, we support the need for individuals to be able to choose freely when considering care home options. Helpfully, the LGO found fault with this Council which has agreed to review its requirement to a much fairer 4-week deposit. 

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report of Essex County Council’s actions can be found here

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