Decision date: 14 April 2024
Summary: Mrs Y complained that Birmingham City Council’s actions unreasonably caused her family to pay top-up fees for residential care for her mother.
What happened
Mrs X lived at home with her husband receiving daily care visits until Mrs Y, Mrs X’s daughter, sought a care home placement for her mother. After a needs assessment and care planning process on 7th June found that Mrs X required 24-hour support in a care home, the social worker submitted a funding request for a residential placement.
Between 9th and 11th June Mrs Y reported having called the social worker to follow up about a placement and being told the matter was with brokerage. On 9th Mrs Y asked the Council to cancel her mother’s home care and said Mrs X’s behaviour necessitated an urgent placement.
Council records of contact on the 9th June showed that a family member said they were trying to book a place for Mrs X at Care Home ‘A’; also that the council had explained the process involved in agreeing funding for a placement and advised that if the family were not satisfied with the identified placements they could source their own which may involve paying a ‘top-up’.
The following day Birmingham notified Mrs Y that funding was agreed and then set out the process of assessing Mrs X for Continuing Health Care (CHC) eligibility and advised that the brokerage team would now source potential vacancies.
During its investigations, Mrs Y told the LGSCO that of the four homes contacted between 7th and 14th June only Care Home A had availability; that Mrs X’s behaviour made the situation at home “desperate and unsustainable” and that by 14th June, with no responses to numerous messages left for the Council, Mrs Y agreed to place Mrs X in Care Home A on a four week trial period.
The Council acknowledged having a 14th June message from Mrs Y stating that as it was the only suitable placement available, the family had placed Mrs X in Care Home A.
Records from 15th June noted that a social worker had told Mrs Y the Council would only pay £548 per week; that a top-up fee would be payable at Care Home A; that the family had said they were able to pay this ‘at the moment’ and that they had been told that CHC eligibility was “unlikely” but that a referral for a full CHC assessment would be made; also that if Mrs X was awarded Funded Nursing Care (FNC) she would need to move to a nursing home.
On 16th June the Council’s records showed a brokerage outcome of a placement for Mrs X at Care Home A. On 23rd June it appeared that the social worker advised Mrs Y that Mrs X had been determined to be ineligible for CHC but eligible for FNC and on 29th June it appeared that Mrs Y told the social worker that paying the top-up was an issue.
On 28th July the Council arranged a review of Mrs X’s placement, and sent Mrs Y a copy of Mrs X’s care plan which indicated a Personal Budget of £548 per week. Soon afterwards the Council carried out a ‘long term services’ review of Mrs X’s ‘permanent’ placement at Care Home A. This noted Mrs Y had stated the top-up was unsustainable and that Mrs X may need to move to a home without a top-up. No copy of the review was sent to the family at this time.
In mid-August the Council wrote to the family setting out the contribution Mrs Y needed to pay towards her care and on 16th August Mrs X’s family challenged the personal budget as insufficient to pay the full care fees at Care Home A stating there was nothing in Mrs X’s care plan indicating the cost of the placement would not be met in full or that a third-party top-up would be required.
In November 2021 the Council began looking for a nursing home placement for Mrs X, (the LGSCO understood this to be related to a change in needs) then on the 1st and 21st December the Council offered placements that were within the personal budget but both were refused due to the distance Mr X would need to travel to visit.
At the end of January 2022, the Council offered Care Home ‘B’. Mrs X moved there on 7th February by which time top-up payments made to Care Home A totalled £14,407.02.
On 3rd September 2021 Mrs Y complained to the Council who responded on 1st December 2021. Mrs Y then sent a Letter before Action on 10th January 2022 but decided instead to complain to the Ombudsman.
The complaint stated the Council had failed to act with appropriate urgency to find Mrs X a care placement; to identify a suitable, in-budget care home for Mrs X; to ensure the decision to place Mrs X in care home A was a genuine choice; that the family had sufficient information to make that choice; that the family was willing and able to pay the required top-up fee and that the actions of the Council had unreasonably caused the family to incur significant top-up fees which should be met by the Council.
What was found
Regarding Mrs Y’s complaint that delays in the context of Mrs X’s urgent needs had forced the family, on 14th June, (seven days after Mrs X’s assessment) to take up a placement at Care Home A requiring a top-up, the LGSCO found Birmingham was not at fault given that it had agreed to fund a placement in a timely manner and that its brokerage team sought to find a vacancy without delay.
It did appear however that of the homes investigated, the only one that had a vacancy at the time was one that turned out to be above the proffered budget even if that was not identified at the time.
There was evidence that having expressed an intention to secure a place for Mrs X at Care Home A just two days after the assessment of needs was conducted, the family were advised by a SW that a top-up payment may be payable if they went ahead with that, and that on 15th June the SW had noted the family were prepared to pay a top up ‘at the moment’. Therefore, the decision to place Mrs X into Care Home A was one the family took voluntarily as opposed to resulting from any fault of the Council.
However, once Mrs X moved there, the Council’s brokerage team ceased to look for a suitable care placement within Mrs X’s personal budget and whilst the Council did set up a service agreement to provide funding, the thrust of conversations moved to Mrs X’s eligibility for CHC rather than seeking care placements priced within Mrs X’s personal budget.
Under emergency circumstances, the family had stated they could pay the top-up ‘for the moment’ and the Council were aware that the family’s contract with Care Home A was only for a four-week trial period. Therefore, the LGSCO expected that the Council should have continued to seek permanent, in-budget care placements for Mrs X which could have been presented to the family for their consideration during those four weeks thereby enabling them to reach an informed decision about a long-term placement.
The failure to continue searching for a placement left the family unaware of in-budget options for meeting Mrs X’s needs while the decision to seek respite at a point of crisis was treated as a final and long-term decision. Furthermore, Birmingham did not ensure the family members paying the ‘top-up’ were willing and able to do so for the likely duration of the arrangement. As a result, the family continued to pay a top-up after the four-week period had elapsed.
To remedy this situation the LGSCO found the Council should reimburse the family to the value of £10,200 – the cost of top-up fees from 14th July to 21st December when Birmingham first offered suitable placements within Mrs X’s personal budget. Also that the Council should apologise for the failure to continue seeking a care placement and that the apology should adhere to LGSCO guidance on making effective apologies as set out on the LGSCO website and finally provide evidence it has complied with the above actions.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public:
Personal budgets – generated as part of the assessment and care planning process – must have regard to the actual cost of good quality care to ensure the budget reflects local market conditions.
Annex A of the guidance – choice of care placements/accommodation – Para 12 sets out that a council must ensure at least one option is available that is affordable within a person’s personal budget and it should ensure that there is more than one. A person must not be asked to pay a ‘top-up’ towards the cost of their accommodation if no options are available within their personal budget. They should not pay more because of market inadequacies or commissioning failures and the Council must ensure there is a genuine choice.
Para 21 states ‘Where someone is placed in a more expensive setting solely because the local authority has been unable to make arrangements at the anticipated cost, the personal budget must reflect this amount.’
Paras 22-25 explains what should happen if someone selects a placement which is more expensive than their personal budget including that the local authority should ensure the person understands the full implications of this choice, remembering that this is often a point of crisis; ensure the person paying the ‘top-up’ is willing and able to meet the additional cost for the likely duration of the arrangement and enters into a written agreement with the local authority meeting that cost having provided sufficient information and advice to ensure the terms and conditions can be understood, including by considering independent financial information and advice.
The statutory Guidance does not define a timescale for the completion of the care and support planning process. However, it says the care plan and provision of the personal budget should be completed in a timely fashion, proportionate to the needs to be met.
The report notes that once it took over the arrangements, the Council set up a service agreement to provide funding up to Mrs X’s personal budget. This is wrong in principle and the fact that the report has been issued without pointing out that it is contrary to the Guidance, is very concerning.
Many years ago (2002) Birmingham was challenged by some local care homes as to the inappropriateness of the rate with regard to top ups being necessary, (Birmingham Care Consortium, R (on the application of) v Birmingham City Council) and it appeared possible from the facts of the case that the council was keeping the top-up OUTSIDE the contract as a way of justifying its low estimate of the cost of meeting people’s needs. That feature made it look to the judge as if all local homes were prepared to meet need for the amount the council was willing to pay because the top-up may have been being secured from the relative. If that is still being done, as the comment in this report suggests, it would be contrary to this very clear guidance in Annex A:
Responsibility for costs and to whom the payments are made
28) When entering into a contract to provide care in a setting that is more expensive than the amount identified in the personal budget, the local authority is responsible for the total cost of that placement.
If you are affected by the issues in this report, please consider asking us a free One-off Question, at a level of principle, here.
The full Local Government Ombudsman report on the actions of Birmingham Council can be found here:
https://www.lgo.org.uk/decisions/adult-care-services/charging/22-013-813