Decision Date: 10 March 2025
Summary
A woman complained that Cheshire East Council failed to properly assess her mother’s care needs and finances in August 2022 and failed then to commission adequate care, and overcharged her relatives through the top-up system.
What happened
Mrs X received private care at home for four hours a day, seven days a week. In 2022, Mrs X’s daughters, Mrs W and Mrs Y, requested a care needs assessment for Mrs X.
A social worker assessed Mrs X and confirmed that Mrs X had eligible care needs. It noted that the current package was familiar to Mrs X and working, but the provider was more expensive than the Council’s commissioned providers.
The social worker’s notes stated that they explained the Council could commission care directly or arrange direct payments so that Mrs W and Mrs Y could choose the carers. They said care visits were usually no longer than three hours a day.
The assessment noted Mrs W and Mrs Y wanted to wait for the outcome of a financial assessment to determine what Mrs X’s care contribution would be. This was disputed by Mrs Y who stated that they asked for a care package to be put in place while waiting for more information on direct payments.
Mrs X continued to receive care from the private care agency. Mrs Y provided the Council with financial information relating to Mrs X’s means.
The Council confirmed that Mrs X qualified for support with her care fees from August 2022. Mrs X needed to contribute £111.87 per week towards her care costs. It said its social work team would be in touch once they had finalised the care plan.
In early December, Mrs W told the Council they believed Mrs X now needed residential care.
The social worker visited Mrs X again and referred her for a residential dementia placement.
In late December, Mrs W contacted the Council to enquire about the residential placement. The Council’s brokerage service began looking for a care home for Mrs X.
However, Mrs X was then admitted to hospital. The Council identified three suitable care home choices in January 2023. Mrs X lacked capacity to give her view on the choice of care home. Mrs W declined all three care homes due to their location.
Mrs W and Mrs Y suggested two alternative care homes they had already identified, and the Council contacted them. The first did not have availability and the second initially said it could admit Mrs X, before saying it could not.
Mrs W and Mrs Y believed Mrs X would qualify for continuing healthcare NHS funding.
In mid-January 2023, a social worker spoke to Mrs W to explain that Mrs X qualified for two weeks of respite care funding at a care home and it would carry out a financial assessment to decide her care contribution following that.
A third care home was suggested by Mrs W and Mrs Y. This care home confirmed it could offer Mrs X a room at the Council weekly rate of £769.55. It told the Council Mrs W and Mrs Y had chosen a room at £850.
Mrs Y emailed the Council on 19 January with several questions about the placement. She asked the Council to confirm it would pay the rate of £769.55 toward the room and asked how long the top up of £80.45 was due for. Mrs Y also asked the Council about Mrs X’s domiciliary care costs from August 2022.
On 20 January 2023, Mrs X moved into the third care home and on the same day, the Council replied to Mrs Y’s email. It stated that the placement was a short-term residential dementia placement while it assessed Mrs X’s long-term care needs. The Council confirmed that it would not be NHS funded and that the first two weeks were non-chargeable but because a room had been available at £769.55, a top up of £80.45 would be payable. The Council said it would make contact to clarify top-up arrangements.
On 3 February 2023, the Council began charging Mrs X for her residential care. It calculated Mrs X should contribute £247.31 a week to her care costs, with an extra top up of £80.45 for the larger room.
In February 2023, Mrs W and Mrs Y met the Council. After the meeting the Council emailed stating it had not charged Mrs X for the first two weeks of her care but began to charge from 3 February 2023. It confirmed the cost of Mrs X’s room was £850 and a room had been
available at £769.55. It said it needed to confirm whether the top up of £80.45 was payable by Mrs X or only through a third-party top up. It agreed to review invoices from Mrs X’s care at home.
The Council wrote to Mrs W and Mrs Y in March 2023 updating the weekly contribution to £229.31. It also agreed to backdate direct payments for Mrs X’s domiciliary care costs to August 2022. It said it would not meet the full cost of the private care agency because it was not one of its registered providers.
It further said it would only pay for Mrs X’s assessed eligible care needs, rather than the hours the agency had delivered.
The Council began assessing Mrs X’s long term care needs in March 2023. It confirmed Mrs X was settled and her needs were being met in the care home. Mrs W and Mrs Y confirmed they wanted Mrs X to remain in the care home and wanted to explore a deferred payment agreement to cover care costs.
In July 2023, the Council agreed to make a one-off payment of £2739.05 for Mrs X’s previous domiciliary care, based on the August 2022 assessment of what Mrs X’s care would have been. This equalled two and a half hours a day of direct payments for seven days a week, minus Mrs X’s contribution of £111.87 a week.
Mrs Y and Mrs W complained to the Council. They said the Council had delayed carrying out a needs assessment of Mrs X at home, so they had continued to pay for four hours a day.
They also said they had not selected a more expensive room at the care home and did not have to pay the top up. The Council did not uphold the complaint and said it would stop funding Mrs X’s care unless it received Mrs X’s contribution.
In September 2023, the Council wrote to Mrs W explaining funding choices.
In January 2024, the Council told the care home it would end funding for Mrs X’s care on 13 February 2024.
It wrote to Mrs W and Mrs Y reiterating the level of domiciliary care they had commissioned for Mrs X was above Mrs X’s assessed eligible care needs. It said it had offered a one-off direct payment of the equivalent to Mrs X’s care needs and would deduct this from the outstanding care home charges. It said it had clearly communicated that Mrs X’s room came with a top up charge.
The Council stopped funding Mrs X’s care in February 2024. She now self-funds her care.
What was found
Domiciliary Care Charges
The LGSCO noted that the Council failed to commission care for Mrs X or provide further information about direct payments. Given that the records showed no further contact from the Council about Mrs X’s care package, until December 2022, four months after Mrs X’s assessment, the LGSCO deemed this to be fault.
After Mrs Y’s complaint to the Council, it agreed to pay Mrs X the equivalent of direct payments for two and a half hours a day care at home between August and December 2022. This decision was based on the Council’s care assessment from August 2022.
The LGSCO was satisfied with the Council’s assessment of Mrs X’s care needs and the hours of care needed.
The LGSCO stated that Mrs X’s private care package did not increase between August and December 2022 which suggests her needs did not change during that time. Thus, whilst the Council was at fault for not arranging direct payments sooner, it was deemed to have provided an adequate budget.
Residential Care
The LGSCO noted that the statutory guidance says the Council needs to provide a person with at least one choice of accommodation within their personal budget. Given that the Council offered several homes which were refused due to location, they were suitable offers of accommodation. Mrs W and Mrs Y opted for a higher cost care home they had already identified, in a preferred location.
It was noted that Mrs X’s room at the care home cost £850 a week and Mrs W and Mrs Y were aware of this and did not challenge it when Mrs X moved in. The LGSCO asserted that the Council now accepts that there was confusion over what room was available. However, correspondence between Mrs W and the Council shows Mrs W was aware the Council would pay £769.55 and a top up would be required. The records show Mrs W also confirmed the amount the Council would pay and the top up amount before Mrs X moved to the care home. Mrs W and Mrs Y met with the Council in February 2023 where the Council confirmed the amounts again. Consequently, all parties were aware what the Council would pay and that a top up was required.
The LGSCO noted that there was no evidence to suggest the Council made contact to confirm whether Ms X could pay the top up herself. The Council also did not provide a copy of any top up agreement to the LGSCO when requested. Thus, the Council failed to follow the proper process, to clarify who could or would pay the top up and to gain written agreement for its payment. This was fault and caused uncertainty over how and who should pay.
While the confusion over the choice of rooms and the top up agreement caused Mrs Y uncertainty, the LGSCO was satisfied Mrs W and Mrs Y were aware there was a top up charge. The LGSCO recognised that Mrs X had been offered a care home at the Council’s funding rate and refused it, implying that there was no injustice in those circumstances.
The Council agreed to apologise to Mrs Y for the uncertainty caused by the Council’s failure to assess Mrs X at home, and whether a top-up applied to Mrs X’s care charges and pay Mrs Y £500.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
We think that the investigator overlooked the fact that location of a care home is clearly part of suitability, because of the relevance of the location to a person’s well-being (and to the wellbeing of relatives as well).
The investigator was fortunate to be able to excuse the Council for its comments about 3 hours a day being the usual package commissioned or funded for a person’s care needs at home, because that would have been dangerously close to the imposition of a fetter on care planning discretion, and an arbitrary cap on care in a given setting.
This escaped necessary comment because the investigator could see nothing wrong with the professional view that 2.5 hours a day was enough, and that had been paid for, via a direct payment rate that was an agency rate that could have been sufficient to access the service, through commissioning, rather than a direct payment.
A direct payment is not an absolute right, as such, but there is a grey area as between what is properly to be regarded as a top up from one’s own finances for wants as opposed to needs, and what is a perfectly reasonable desire to have something that is person centred given that block purchasing via commissioning does not easily or always lead to a bespoke response – which even if it costs a bit more, could be regarded as best value, and thus able to be funded by the council without it favouring people who are willing to do their own sourcing.
It is not clear from the law as yet that the fact that it would cost more to use a non-commissioned framework agency is in and of itself a reason for capping a direct payment or refusing one, because the Guidance says it could be ‘best value’ to provide the person with a higher rate – see the ‘Andrew’ example in the Guidance. But we do not think that cost is totally irrelevant if the cost is much more than a council can defensibly point to as being available.
In terms of the charges, Councils must disregard the value of a person’s main or only home for 12 weeks from when they first enter a care home on a permanent basis, when completing the financial assessment. During that period, although the Council is paying for the care home, contractually, the person can top up the cost of the placement, because generally speaking the disregard means that they are going to be a self-funder in a foreseeable period, and should be allowed to spend their own money for the disregard period for the purposes of accessing a preferred setting or environment, beyond their needs, but meeting their preferences.
The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 establish what people should expect from a Council when it arranges a care home place for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions.
Choice rights mean that a person can also choose alternative options, including a more expensive care home, where a third-party or, in certain circumstances, the resident is willing to pay the additional cost. Top-up payments must always be optional and never the result of commissioning failures leading to a lack of choice.
Given the law regarding sufficiency, and the concept of a top-up being that which is for want and not need, the Guidance makes it clear in paragraph 8.37 that the Council must ensure:
- the person has a genuine choice of accommodation;
- at least one accommodation option is available and affordable within the person’s personal budget;
and should (not must) ensure that there is more than one of those options.
Care and Support Statutory Guidance states that Councils must ensure the person paying the top up is willing and able to pay the top-up for the likely duration of the arrangement.
A written agreement between the Council and the person paying the cost is also necessary. Without one of those, the top-up ‘agreement’ by the relatives would be unenforceable, and in that sense, the daughter was overcharged, because the top-up was invalid for want of documentation.
Top-ups are applicable to respite provision too, although that is usually charged for on a different basis that would normally ignore one’s house, because residential respite is in the nature of a short term placement, where one will return to one’s home. Here, it seems as if the offer of 2 weeks’ residential respite was a stop-gap to allow more discussion with homes as to their fees and services, rather than normal respite.
There is a long history of ‘toxic’ top-ups in the Ombudsman’s reports, because it is very common that councils
a) fail to contract for the whole amount including the top up as they are required by the Guidance para 8.33 to do;
b) require care homes to take on the risk of non-payment for unreasonable periods, by making it a term that they must themselves undertake a collection process in the council’s standard placement contract;
c) set a personal budget at the lowest cost achieved by a dynamic purchasing system, whereby pre-approved providers bid down when they really want a client for their occupancy and income purposes;
d) in particular fail to treat location as part of the response to need and therefore suitability of the proposed response;
e) set the announced rate for care homes at a rate which care homes have agreed to accept, although those care homes won’t have understood that their acceptance will be effectively forcing people’s relatives to subsidise the Council’s statutory duty to meet needs;
f) allow care homes to enter into direct third party contracts for unspecified wants or additional services that are not actually going to be delivered, enabling an extra sum to be charged for absolutely nothing, even though the council’s contract should cover all the needs.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Cheshire East Council (24 003 207) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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