Worcestershire County Council not at fault for the information it provided regarding third-party top-up fees, but at fault for failing to complete an annual review of the third-party agreement, and failing to check if the third-party was able to pay the fees

Decision Date: 13th November 2020

What Happened

Mrs X complained on behalf of her parents, Mr and Mrs Y.

Until the beginning of 2019, Mr and Mrs Y lived together at home. 

Mr Y was admitted to hospital in April. During this time, his other daughter, Mrs F, and Mrs X told the Council that they were applying for power of attorney for Mr Y’s finances. 

It was agreed between the Council and Mr Y’s family that he should be discharged to residential care. 

Mr Y was discharged to a residential care placement which was Council funded for 6 weeks whilst his long-term needs were assessed. 

The Council spoke to Mrs X in June to explain funding for care, third party top-up fees and options for accommodation. Mrs X signed a form stating that she understood Mr Y may need to contribute to his care, and the financial assessment process had been explained. 

Two weeks later the Council emailed Mrs X setting out two care home options that would be suitable for Mr Y. Home 1 cost £467 each week, with no third-party top up, and Home 2 cost £700 weekly with a £233 third-party top up fee. 

Mrs X replied to the Council discounting Home 1 due to its rating. The family had visited Home 2 and considered it as acceptable, but wanted to know if there were any other options available. 

The Council told the family that there were no other options available, and met with them to discuss funding options, client contributions and top-up costs. 

The next day Mrs X told the Council that they had decided the Home 2 top-up fees were unsustainable, but contacted the Council the following day changing her mind. Mrs Y preferred Home 2 and said she would pay the top-up. 

The Council began the process for organising a placement with Home 2, and said that Home 2 would assess Mr Y and send out the top-up details. 

Mr Y moved into Home 2 (date undisclosed), and the top-up payment application form was completed the day after. The application form included: 

  • both Mrs and Mr Y’s income, stating that they had a weekly disposable income of £332 after living costs
  • a written agreement between the Council and Mrs Y setting out 
    • the care home fees of £700
    • the Council’s weekly contribution of £467- including the resident’s assessed contribution; and
    • the third-party weekly contribution of £233.

The form stated that if the top-up fee was not paid then the Council may cease to fund the placement. 

Mrs X was granted power of attorney a week after Mr Y moved to Home 2. She completed Mr Y’s financial assessment and returned it to the Council. 

The Council wrote to Mrs X informing her that Mr Y’s contribution to his care was £239 weekly. 

Mrs X contacted the Council in September 2019 because she was confused as to why she had received two sets of invoices for Mr Y’s care. 

The Council explained that one invoice was for client contribution, and the other was the third-party top up fee. 

Mrs X replied to the Council stating that she had been unaware that client contribution and top-ups were different things. She highlighted that Mrs Y had put their joint income on the top-up form. 

The Council explained that if the top-up fee was unaffordable, they needed to give the Council four weeks’ notice so the Council could look into alternative accommodation for Mr Y. 

Mrs X complained to the Council (date undisclosed). 

The Council replied to Mrs X’s complaint in December 2019, stating that it had provided her and the family with sufficient information surrounding the financial assessment and contribution/top-up process. It said that if Mrs Y had put her correct income on the form then they would not have continued with the placement. 

The Council told the LGO that Mrs Y is meant to pay the top-ups directly to the Council, however, she had not made any third-party payments since July 2019. There was an outstanding balance of £13,880 for Mr Y’s care.

What was found

The LGO stated that the Council was not at fault for not offering further alternatives to Home 2, as it had already offered Home 1. Home 1 was within Mr Y’s personal budget, and although it was further away from family, the reason it was turned down was due to its ratings, not locality. 

The LGO considered that the Council provided sufficient information surrounding top-ups and financial assessments, and therefore was not at fault. Not only did they have numerous discussions with the family explaining funding streams, financial assessments, client contributions and top-ups, but both Mrs X and Mrs Y signed a document confirming they had been given the above information and understood that top-ups were separate from client contributions. 

However, the LGO stated that the Council must ensure that the third party is ‘willing and able’ to meet the costs. Mrs Y only completed the top-up form after Mr Y moved into the Home, therefore the Council did not consider whether she was ‘able’ to meet the costs. This was fault. However, the LGO stated that the fault did not cause significant injustice, because Mrs Y completed the form incorrectly. Had the Council received the (incorrectly filled out) form before Mr Y moved into the Home, it would not have made any difference to its decision making. The fact that Mrs Y filled out the form incorrectly, was not the Council’s fault. 

The Council was not at fault for stating that if Mrs Y could not afford the top-up fee then they must give 4 weeks’ notice to end the contract, as it was in line with the contract. Mrs X and Mrs Y did not give notice, but did not pay any of the top-ups. 

However, the Council was at fault, as it failed to take any action when the top-ups were not being paid. It also failed to complete an annual review for the third-party agreement in July 2020. This fault meant that the Council delayed in deciding whether it should move Mr Y to a cheaper home or pay the top-up fee itself. 

The LGO recommended that the Council:

  • Waive any outstanding top-up debt from July 2020 onwards when it should have reviewed the third-party agreement.
  • Tell Mrs Y if it intends to make the top-up payment, or whether it plans to transfer Mr Y to a different care home, following a further assessment of needs.
  • Remind staff of the need to complete annual reviews of third-party agreements.

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

This complaint pertained to information received by the complainant about third-party top-ups. Councils have a duty to ensure that the person has a choice of home, albeit that in this instance the choice of home that could be afforded within the personal budget had a poor quality rating. 

This was the reason that the complainant had chosen home 2, a more expensive but seemingly better quality home for her father when he was discharged from hospital. She had initially debated whether the third-party top up required was sustainable and the top-up form was in itself completed the day following Mr Y’s move into the home. 

The Care and Support Statutory guidance (Annex A) says this:

24) Before entering into the agreement, the local authority must provide the person paying the ‘top-up’ with sufficient information and advice to ensure that they understand the terms and conditions, including actively considering the provision of independent financial information and advice.

Note this is before entering into the agreement. In practical terms someone needing a hospital discharge into a home is going to need this to happen at pace. It may take time for families to assess options offered and their financial position in relation to paying a top-up and this may not be consistent with the speed at which discharges take place, let alone allowing for the emotional and decision-making elements of this situation. 

Many people struggle with the idea that their family member could be moved again and just want them to be settled if they are moving into a care home so it is important that councils get this right. Providing good information and at the right time can enable people to fully understand their obligations and the position of the council before making such decisions. 

This council did the following which was found to be sufficient:

  • The Council spoke to Mrs X and Mrs Y about the Council’s funding streams, financial assessments, client contributions and top-ups.
  • The Council differentiated between client contributions and third-party top-ups in its email to Mrs X about residential home options and costs; 
  • Mrs X signed to confirm the Council had provided information about financial assessments. 
  • Mrs Y signed a written agreement with the Council about third-party top-up costs. That agreement specified top-ups were separate from client contributions.

However, this council was found at fault for failing to consider whether the family member was both ‘willing’ and ‘able’ to pay the additional amount. 

The fault specifically related to the information the complainant had provided being inaccurate and this not having been identified by the Council as it failed to carry out a review of the top-up arrangement when required. Reviewing the top-up arrangement would have established that the information was incorrect and that there was a problem. Instead a debt totted up of £13,000. The LGSCO quite rightly recommended that the council waive the top-up back to when the review should have taken place. 

The complaint made by Mrs X also had a key area where the council was not found at fault.  This was in relation to choice. Many councils have a policy statement on choice. Here’s what the guidance says about choice of care home:

8.37 The local authority must ensure that the person has a genuine choice of accommodation. It must ensure that at least one accommodation option is available and affordable within the person’s personal budget and it should ensure that there is more than one of those options. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or in certain circumstances the resident is willing and able to pay the additional cost (‘top-up’). However, an additional payment must always be optional and never as a result of commissioning failures leading to a lack of choice. 

The LGSCO did not find the council at fault as it had offered at least one home within the personal budget. This may be difficult for individuals to appreciate where families have concerns about quality, but it is within the guidance. 

Our own view is that this LGO report comes over as somewhat weaker than many others from the organisation in this sphere; it treats the home as suitable despite its rating and it seems not to question the basis for treating the £467 as a feasibly defensible evidence-based fee for adequate, appropriate care. It puts us in mind of the training we did in 2015 – whereby we posited that the one care home in the area was called ‘Falling Villas’ just so that a council could always point to one home where there would always be a vacancy because nobody would want to go there! If this family had had Care Act advocacy, we think they would have had a clearer idea of their rights and the rights of the man in question. But because there was a family with a power of attorney it perhaps did not occur to the daughters that advocacy comes with the benefit of some specific Care Act knowledge.

If the council proceeds against Mrs X for the balance of the debt, in future, now the report has been finalised, we would suggest that she might consider defending the case on the basis that the only home offered by way of a benchmark for prices was not one that was defensibly suitable, for a local authority to make a placement within, by way of meeting needs, and that evidence shows that it was not a proper benchmark fee for the type of care that Mr Y needed – the evidence being available that no other care homes had vacancies at anywhere near that level or that all other such care homes required top ups of a hefty amount, without it being clear in what way the fee was for meeting wants rather than needs. 

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 Worcestershire County Council’s actions can be found here


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