Hertfordshire County Council at fault for its poor communication surrounding third-party top-up arrangements

Decision Date: 9th December 2020

What Happened

Mrs C complained on behalf of her late mother, Mrs D. 

After a stay in hospital due to a fall, the Council assessed Mrs D as needing two weeks of residential care in order for it to assess her care needs. 

Mrs D chose Care Home X, which was agreed with the Council if Mrs C paid the £500 third party top up fee.  

There is no suggestion that Mrs D lacked capacity; she was described as frail. For reasons unexplained in the report, Mrs D ended up back in hospital. 

Mrs C and Mrs D both wanted her to return to Care Home X on discharge. Care home X was happy to hold Mrs D’s place and contacted the Council on 7th February 2020 to enquire about her discharge plans. 

The same day, the Council met with Mrs C. 

The Council told Mrs C that because they now realised that Mrs D owned a property abroad, it meant that she was over the threshold for the Council to fund her care and support so would be liable for the full cost of her care if the council continued to contract for her in the meantime, and told the care home that Mrs D would at some point have to self fund – ie make a private payment arrangement with the home. 

Mrs D therefore planned to liquidate her assets in order to fund a placement independently. 

The next day, the Council also told Mrs C that Mrs D needed a reassessment to determine whether she could live in the community with support. Mrs C said that she was concerned that her mother’s health had declined since being in hospital and wanted her discharged to Care Home X as soon as possible. 

The Council later apologised and clarified that the reassessment was actually to determine whether Mrs D’s needs had deteriorated to require nursing care, but this was not properly explained to Mrs C. 

The Council’s assessment concluded that Mrs D did need long term residential care. On 13th February, the Council sent a ‘funding pack’ to Mrs C and a letter the following day which explained ‘top-ups’. It was recorded in Council notes that a management discussion took place which indicated that a third-party top-up would not be appropriate for the following reasons:

  1. There was no letter of undertaking for the sale of the property which meant the council was at risk of becoming liable for funding the placement for the long term;
  2. Mrs D had stayed at care home X for two weeks, so there would be minimal disruption to her well-being if she moved to an alternative home if it met her needs;
  3. Care home X did not accept Council rates and the top-up of £500 per week was high. 

The implication was that the council was not confident that Mrs C could afford to pay a top up of that level. On this basis, the Council made a decision not to enable the third-party top-up but failed to inform the family properly, but did not explore that issue with Mrs C. 

The Council received a discharge date of 25 February from the hospital. This put the Council on notice that Mrs D was ready for discharge and needed to have an assessment. 

On 26 February the Council identified an alternative care home which would accept the Council rates in the short term until Mrs D had liquidated her assets and was able to fund her placement independently. 

Mrs D moved into a new home on 1 March. She unfortunately died on 8 March.

Mrs C complained to the LGO that:

  • The reassessment was unnecessary as one had already been completed. 
  • The reassessment delayed Mrs C’s discharge from hospital.
  • Mrs C would have lived longer if the Council arranged for her discharge earlier.

What was found

The LGSCO stated that the Council was not at fault for reassessing MRs D’s needs. It was entitled to assess whether Mrs D’s needs had changed after her hospital admission. 

There was no record of discussions with Mrs C about her financial circumstances or potentially others within the family. Indeed an officer told X Mrs D would not be returning prior to any discussion with Mrs C. 

The Council failed to appropriately communicate its decision making properly, which caused Mrs C frustration and anxiety. This was fault. The LGO stated that the Council should have communicated its decision to refuse funding for Care Home X to Mrs C, better and more clearly. It was at fault for failing to properly consider whether the third party top up was a long-term viable option for Mrs C. 

The LGO said that the Council was not at fault for the delay in discharging Mrs D. Whilst there was some initial confusion about the property Mrs D owned abroad, the Council made reasonable enquiries and sought a resolution. After Mrs D had been assessed as needing long term residential care, the Council made a reasonable effort to find a suitable care home. 

The LGO summarised that although it was unclear whether the decision made about Care Home X would have been different if the Council had acted without fault, the poor communication deeply affected Mrs C.

The LGO recommended that the Council: 

  • apologise to Mrs C for the failure to properly consider/record whether a third party top up was sustainable;
  • make Mrs C a payment of £200 to reflect the uncertainty and anxiety caused by the Council’s actions. 
  • review the complaints process to provide a check to ensure complaints are not missed;
  • remind staff about the Choice of Accommodation regulations, the process officers should follow, and the importance of recording how officers have reached decisions;
  • remind staff about communicating, where possible in writing, reasons for decisions.

Points to note for councils, professionals, people using services and their carers, advocacy organisations

Hertfordshire were rightly found at fault in this complaint. They almost took the right approach in terms of establishing whether the proposed ‘third party top-up’ was a feasible and realistic option but only did this within the Council and not in collaboration with the family and the third party who would have paid the top up. Neither did they explore the making of a deferred payment agreement with Mrs D, as far as the report records – perhaps because the other property was abroad, and would thus not have been able to be secured with a charge. 

The Care and Support Statutory guidance states the following in relation to top-up arrangements:

The Council was rightly concerned at the potential impact for its resources without a robust agreement in place. It needed to communicate its decision and failed to do so. 

Had this Council considered the rules on top ups and the clear exhortation to explore the financial viability of the top up explicitly with any person who is interested in shouldering that liability, it would have worked more transparently with the family.

The Council left this family with uncertainty which was clearly fault. It ought to revise its complaints policy and implement the recommended reminders and support for staff in respect of communicating decisions, especially in relation to choice of accommodation as this is often so important to people and their loved ones when in changing circumstances regarding their future living arrangements.   

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 Hertfordshire County Council’s actions can be found here


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