Decision Date: 17th July 2020
What Happened
Ms B complained on behalf of herself and her mother, Mrs C.
Mrs C had been in a psychiatric hospital for assessment as an informal patient and was not detained. Therefore, she had no legal entitlement to s.117 aftercare services under the Mental Health Act 1983.
On discharge, a care co-ordinator completed a needs assessment which identified that Mrs C needed 24-hour residential care.
Ms B had already found the cheapest available care home that was suitable for dementia.
The Council claimed Ms B had signed the contract with the care home before the Council’s funding panel had taken place.
The Council’s assessment said that Mrs C would be a private funder after her flat was sold, and her family had enough funds to pay for the care home for the first couple of weeks. The report did not state when this assessment took place.
Mrs C’s family asked the Council for a 12-week property disregard and deferred payment, which was agreed. Mrs C moved into the care home on the 22nd July.
Until her home was sold, during the property disregard period the Council was responsible to arrange and fund the care of Mrs C. The Council failed to give Mrs C an indicative personal budget until a week after she had moved into the care home. No explanation for this failure was offered in the report.
The care home Mrs C moved into turned out to be above the rate that the Council would usually pay (although she did not know that at the time), so the family ended up having to pay a £300 top-up fee per week. The report did not go into any detail about how this arrangement came about.
The Council did not offer an alternative care home within Mrs C’s budget.
Two weeks after Mrs C moved into the care home, Ms B contacted the Council as she was unable to afford to pay the £300 top up fee. She said that the care home would evict Mrs C if her family did not pay.
At this point the Council offered a more affordable placement, but it was in a different borough. The LGO found no evidence of how the Council assessed the new placement as suitable.
Ms B was worried that the change would unsettle and disorientate Mrs C, and that she would be unable to visit her mother.
The Council offered another placement, this time within the borough. Ms B visited the potential care home but the manager thought the move would not be in Mrs C’s best interests. The LGO highlighted that this made it unclear as to whether the placement would have been suitable, as it seems that the care home may not even have accepted Mrs C.
During the 12-week property disregard period, Mrs C could legally top-up any additional residential care payments from her own resources. The Council’s records showed that Mrs C had £3000 in savings, and that a friend was willing to pay the top-up; Mrs C would repay the friend when she sold her house.
On the 9th August, Ms B decided that she wanted Mrs C to stay at the current care home. However, she complained to the LGO that the Council:
- Failed to properly assess Mrs C’s care needs and finances
- Failed to give advice about paying for Mrs C’s care
- Demanded an unaffordable top-up of £300 per week
All of this was so distressing that Ms B had attempted suicide
What was found
The LGO highlighted that the Council did not give Mrs C a personal budget until a week after she moved into the care home. Also, the Council did not offer a suitable, available care home within budget until after Mrs C had already moved into the expensive care home. This was fault.
The fault meant that Mrs C could not make an informed decision about her own placement whilst looking for a care home.
The LGO stated that it did not believe that she actively looked for a more expensive home. In fact, it stated in its report that she chose the cheapest available home.
The fault caused Ms B such great distress, that when she found out that there was a £300 weekly top-up fee, she attempted suicide because she could not afford it.
The LGO highlighted that when Ms B decided on the 9th August to keep Mrs C at the care home, she did so fully informed, so was responsible for the costs.
The LGO recommended that the Council:
- Pay Mrs C the amount of the top-up between 22 July and 9 August.
- Pay Ms B £750 to recognise her distress, time and trouble.
- Remind staff of the importance of promptly giving an indicative personal budget, and information to assist people in finding suitable, available social care accommodation.
Points to note for councils, professionals, people who use services and their carers, advocacy providers and members of the public
Councils do need to recognise that the order of events is important under the Care Act: the person’s needs assessment and determination of eligibility comes first, and then the care plan, with finance decisions about contributions towards the cost of care being made ideally before the plan is ready to be finalised.
It seems that around the time of assessment, a home had been identified by Ms B for her mother. What was needed at that time was a conversation about charging and the costs of care home placements, with clear information given to Ms B about how that works in practice, when it is done lawfully, including the essential role of advice and information and a written agreement about top ups.
The Care and Support statutory guidance says this about choice of accommodation when considering residential or nursing home placements:
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.
Later on the Council had enabled Mrs C and Ms B to make an informed choice about the care home when it offered an alternative option. From then on, in the absence of any clinical evidence that it was not appropriate for her to move, the top up had to be paid.
We note that Bromley has no excuse for treating a person who was going to be above threshold as someone whose family would just sort things out and await the sale of the property: they offered a 12 week disregard and as such Mrs C was NOT a self-funder at the point of needing the placement. Bromley had been involved some years ago in a case with Greenwich about a Greenwich resident’s relative being supported to place his mother outside of the borough, privately, with the outcome that there was a tussle over ordinary residence when her money went below the capital threshold….
The full Local Government Ombudsman report of London Borough of Bromley’s actions can be found herehttps://www.lgo.org.uk/decisions/adult-care-services/charging/19-010-475