Decision Date: 24th May 2021
What Happened
Mrs X complained on behalf of her mother, Mrs Y.
Mrs X arranged and funded for her mother Mrs Y to have respite in a nursing home for three weeks following discharge from hospital. Mrs Y was discharged to the nursing home on the 31st December 2018. The council were not involved in this arrangement or the funding of the respite.
The council were contacted by Mrs X in January 2019 and agreed to extend the respite placement until February 2019 and to retrospectively fund Mrs Y’s respite from 31st December 2018.
From February 2019, following the agreed period of respite, Mrs Y remained a ‘temporary’ resident in the nursing home until she was assessed in March 2019 as lacking the mental capacity to make decisions about her care and accommodation and it was decided via a best interests meeting in May 2019 that she should remain in the nursing home as a permanent resident. Mrs Y remained a permanent resident in the nursing home until she passed away in October 2020.
An assessment of Mrs Y’s finances was completed in July 2021 and she was informed in writing she would need to make a weekly contribution to the cost of her care of £88.65 per week – this was to be backdated to the 22nd May when her placement became permanent.
The letter informing Mrs Y of the outcome of her financial assessment did not include a breakdown of her income or capital. The letter stated “if the home is run by London Borough of Croydon (LBC) we will invoice your client every 4 weeks. If the home is not run by LBC your client will be invoiced directly by the care home and LBC will meet the rest of their agreed costs.”
Mrs X made payments directly to the nursing home from August 2019, until, following an annual review it was discovered Mrs Y was receiving a benefit that, although Mrs X had included it in the information for the initial financial assessment, it hadn’t been factored in to the calculation. As a result Mrs Y’s assessed payments increased to £148.85 and Mrs X began paying this increased amount in June 2020 and continued to pay it directly to the nursing home until Mrs Y passed away in October 2020.
The council agreed to pay the gross amount to the nursing home in April 2020 because Mrs X had not been making the client contributions and the placement was at risk; however it was found that in fact the net amount (the total, minus the client contribution) was paid to the nursing home.
In June 2020 the council funding panel agreed to pay the home £3343.29 to cover debts from December 2019 to May 2020 as they were responsible for not informing Mrs X of the need to make the shortfall payments to the home. The records show the council actually paid the home £2126.29.
Since Mrs Y passed away in October 2020, Mrs X had been made aware that the nursing home is pursuing her for a debt of £2126.29, which lead to her complaint to the LGO.
What was found
The LGO found fault with the council’s policy to fully fund the care costs, including top-ups, direct to care and nursing homes only when they were run by the council and not to privately run homes, meaning individuals paid or were supposed to pay their client contribution direct to the home – this is in conflict with the Care Act guidance which requires that there be an agreement to this effect.
The LGO found the council was at fault for the delay of Mrs Y’s financial assessment not taking place until July 2019 after being requested to assess her care needs in January 2019, and for the lack of information provided to Mrs X regarding the need to pay Mrs Y’s contribution in that time leading to a delay in Mrs Y’s contribution being paid, creating a debt. The LGO found the council to be at fault for failing to include all of Mrs Y’s income in their financial assessment despite having been provided with this information, and for failing to notify Mrs X of this error until April 2020.
The mistakes made by the council have created uncertainty around the charges and costs of Mrs Y’s care at the nursing home resulting in an unexpected arrears bill owed to the home of £2,000 which had caused distress to Mrs X.
What the LGO recommended-
- an apology and a payment be made to Mrs X of £250 to acknowledge the distress caused by their mistakes
- that the council should take financial responsibility for the arrears owed to the nursing home so as to put Mrs X back in the position she would have been in had the mistakes not taken place.
- that the council should review and amend its policies regarding contracting with a provider to ensure these are within line with the Care Act guidance regarding the council’s responsibility to directly fund the care package.
Points for the public – families, care managers, advocates, lawyers etc:
AS the LGO pointed out, this approach to paying for care placements for which the council is contractually responsible is wrong. The LGO doesn’t go further than the first paragraph of the Guidance, no doubt because it can be seen that the thrust of it is about third party top ups for wants over and above needs, but the point is one of principle, which is very simple.
If A is the council and B is the care home and C is the client, the duties work in the following way.
A agrees to pay B for the care home service. Not for some of it, but for all of it, naturally.
A is entitled to charge C for the arrangement A has made, as long as C is means tested and not charged any more than that means test allows. C’s liability to pay charges is to A, not to the care home.
A is B’s customer. C is the recipient of the service from B for which A is liable to pay.
It is not acceptable for A and B to contract to make C pay B the charge which C owes to A, so as to reduce the amount A must pay to B. C can agree to do that, with C’s contribution as well as any top up, but cannot be forced to do that.
Clearly care homes don’t know this. But what is more worrying is that this has been the law for about 30 years, and Croydon doesn’t seem to know that that’s the position.
At paragraph 8.33 the guidance states “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.”
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. Local authorities must ensure they read the guidance at Annex A on the use of ‘top-up’ fees.
The full Local Government Ombudsman report of London Borough of Croydon’s actions can be found here
https://www.lgo.org.uk/decisions/adult-care-services/charging/20-003-722