Decision Date: 17 December 2024.
Summary
Mr X complained on behalf of his mother Mrs X about the way in which a Council-funded care home assessed her dependency levels. Despite gradual improvement in Mrs X’s circumstances her dependency scores remained unchanged and this was determined to have resulted in Mr X paying higher top-up fees than was necessary.
What happened
In September 2023, Mrs X moved into a care home. The care home required a third party top-up that Mr X agreed with the Council to pay. Mrs X was unable to walk, required two carers for transfers and required assistance for all her basic needs, including personal care and feeding.
In October Mrs X was admitted to hospital with a serious infection and was discharged after a week. The Council then reassessed Mrs X’s care and support needs. The review identified that Mrs X still required two carers to assist her with transfers and personal care. But Mrs X could feed herself, although she struggled with cutlery due to her hands shaking.
In January 2024, the Council updated Mrs X’s action plan to reflect various requests including that she wanted to walk more rather than using a wheelchair.
Mr X asked the Council to review the dependency levels recorded by the care home. It told him that this is ‘usually agreed between the care home and the family and that the Council does not get involved’.
Mr X then approached the care home directly. In February 2024 he met with the staff of the care home to discuss Mrs X’s dependency levels. The care home reassessed Mrs X and reduced her dependency levels. The top-up fees paid by Mr X were reduced by the home from [£203 to £120 per week] starting from January 2024 when Mr X had first raised the matter.
In March, Mr X complained that the care home had not sent him his mother’s dependency assessments from September 2023.
Mrs X left the care home to move into alternative accommodation.
Mr X pursued the complaint and said that the original dependency score had remained unchanged despite improvement in his mother’s health and the reduction in the care and support she had been receiving. In response, the care home provided Mr X with the dependency scores for each month. However, there was no breakdown of the scores. The care home explained that they were automatically calculated by software.
Mr X contacted the Council. The Council were able to contact the software company that the care home had used to calculate the scores. It provided detailed scores for the dependency reviews from the software company. Mr X could see that the detailed scores did not change between September 2023 and January 2024. Therefore, he concluded that the care home’s assessments had not been done correctly.
What was found
The Council carried out formal re-assessments of Mrs X’s care needs in September, November and February. The Council recorded improvements in Mrs X’s health between these months.
The care home’s dependency scores remained the same between September and December which did not correlate with the Council’s re-assessments. These scores were not reached correctly.
The reduction in Mrs X’s top-up fees should have happened sooner than January.
The Council remains ultimately responsible for dependency reviews via Care Act reviews and of the fee it pays to the care home, even if it can pass on review duties to the care home. Therefore, the Council was at fault for telling Mr X that it was not involved in these matters.
The Council was advised to reimburse Mr X £747 which would equate to November and December’s weekly top-up fees being £120 instead of £203.
In addition to remedying the distress and frustration caused to Mr X and him having to pursue the complaint the Ombudsman recommended a payment of £300.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Ombudsman’s finding that the Council remains responsible for dependency reviews and top-up calculations is on account of the public law concept that when a Council contracts out or delegates a statutory duty, the public law responsibility for the duty remains with the named entity to whom Parliament has given the duty.
That is the case under the Care Act because it says so in s79(6), specifically,
(6) Anything done or omitted to be done by or in relation to a person authorised under this section in, or in connection with, the exercise or purported exercise of the function to which the authorisation relates is to be treated for all purposes as done or omitted to be done by or in relation to the local authority.
However, in terms of legal history, s79(6) says what it says because whether or not the duty in question is made able to be discharged expressly by the means of a contract or by formal delegation, it has always been the law that the community care duty to meet the needs is absolute and enforceable, against the Council which is liable. This means that Councils cannot dodge liability in public law for the failures of care providers (although they are not always liable for harm caused by a provider (whether through omission or commission), because that sort of liability is separately imposed by the law of negligence.
Here, the meeting of needs duty was probably not formally delegated to the care provider, under the Care Act; rather, this duty is expressly made able to be met by way of contracting with a third party, by s8 of the Act, and when that is the route taken, the provider owes a duty of care in civil law but the Council is simply liable on public law principles for any wrongdoing that relates to the duty to meet need.
It should also be noted that the Council was still held responsible despite the fact that it had conducted re-assessments of Mrs X’s circumstances.
The far more puzzling thing about this report, however, is that the Ombudsman’s investigator appears to lack awareness of a fundamental aspect of top ups law: they are for wants, and not needs! So the whole premise of this report is skewed; the home should not have been charging for top ups related to meeting dependency at all. The home was in contract with the council and would have agreed to provide the service for a price and must be taken to have offered to do so, taking on the commercial risk either way, that the dependency would either improve or worsen. So the premise of the report that the fact that the dependency improved as Mrs X’s condition became less severe, is wholly wrong – the fee would have remained the same, and any top up that the husband was paying would have remained the same too.
What all contracts SHOULD be based on is the care plan, in relation to what must be provided in return for the fee to be paid, and it is up to the parties to determine whether a lessening of need for input is reflected in the fee, or whether in fact the economics and cross subsidies which care homes are free to apply as between clients, mean that no change is made to a flat rate fee. In our experience, very few contracts between providers and councils for care home care provide for reductions in fees if the person improves – at least not in the field of an older person’s care. It might be different for a person with learning disabilities or a person with a chronic and fluctuating condition.
We suspect that more care homes will be trying to negotiate top ups of this nature due to their desperation at the impact of the Budget increases in the ENICs and NLW. The most shocking thing about this situation is that any council and this particular one in this scenario MUST be taken to know about this risk, because the Council is, was always, back to the 1990s, and always will under the Care Act be legally obliged to include the top up IN the contract which it concludes with the care home.
The Council said the care home calculated the third party top-amount based on the dependency level of the resident i.e., the greater the dependency/carer time, the higher the top-up fee. That is unconscionable because it is so clearly related to her NEEDS for care, not gold taps or flock wall paper or especially nice furniture or a view!
Tellingly, Tameside in particular has reason to know this because its practice regarding top ups has already been the subject of extremely critical scrutiny by the Ombudsman.
We are aghast at this degree of unawareness and quality control by the Ombudsman’s service.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Tameside Metropolitan Borough Council (24 001 464) report. 24 001 464 – Local Government and Social Care Ombudsman.
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