Ombudsman investigation sees council agree to repay five years of care fee top-ups after it failed to offer affordable alternative placement first

Stockport Metropolitan Borough Council has agreed to reimburse "a significant amount of money" to a woman after it did not offer her mother an affordable care home placement, before asking her to pay a top-up towards her mother’s fees.

The local authority agreed to pay the compensation following a Local Government and Social Care Ombudsman investigation that found the council at fault for not following the statutory guidance on top-up fees, which says a person should not be asked to pay a 'top-up' towards the cost of their accommodation because of market inadequacies or commissioning failures.

There must be a genuine choice, the statutory guidance says, so "the local authority therefore must ensure that at least one option is available that is affordable within a person’s personal budget …"

When it was decided that the mother, 'Mrs P', should move into a residential care home, the council initially proposed two homes to the daughter, but both were full.

On 25 November 2015, Ms P was admitted to the fourth option, which required her daughter to pay a top-up payment of £240 per week.

Her placement was initially meant to be a 'respite' placement while the council searched for affordable options. Ms V agreed to pay the top-up payments for one or two weeks until a vacancy at an affordable home became available.

Due to unforeseen problems, the respite period was continuously extended until 23 May 2016, when it was agreed that Mrs P's placement should be made permanent.

Four years later, in June 2020, Ms V wrote to the council to say she could no longer afford the top-up payments. When asked what she could pay, she told the council that she could not afford to pay any of it.

Following this, the daughter submitted a complaint to the council. It responded seven months later in April 2021, to inform her that her complaint had been rejected as she had agreed to pay the top-up, despite the council making "clear [it] would not support or fund [Home 4] because there were beds available, at a lower cost, at [Home 1 or 2]".

Ms V then complained to the Ombudsman.

In his investigation, the Ombudsman considered the policy set out in the Care and Support Statutory Guidance, which at paragraph 12 of Annex A says:

"[If] no suitable accommodation is available at the amount identified in a personal budget, the local authority must arrange care in a more expensive setting and adjust the budget accordingly to ensure that needs are met. In such circumstances, the local authority must not ask for the payment of a 'top-up' fee. Only when a person has chosen a more expensive accommodation can a 'top-up' payment be sought."

The council said it met this duty because it offered Mrs P a placement with the care provider running the first two proposed homes, but Ms V turned this down in favour of the more expensive fourth home.

"But I can see nothing in the Council's notes to support this version of events; rather, on each occasion where the Council consulted about Homes 1 and 2, its notes show no placement was available," the Ombudsman said.

He added: "As this represented a 'market inadequacy', the statutory guidance says the council should have adjusted Mrs P's personal budget to cover a more expensive placement, without requiring a top-up payment from Ms V (or any other person). The council's failure to do is fault."

The Ombudsman also found fault with how the council asked the daughter to pay the care bill. As part of the commissioning arrangements, Stockport asked Ms V to pay both the top-up and Mrs P's contribution directly to the home, with the council paying its own contribution separately.

"I acknowledge there is some flexibility open to a council with respect to this, and so it is permissible for residents and/or family members to make their payments direct to the care provider," the Ombudsman stated. "But I would expect to see the reasoning for this set out in the council's records, along with a clear confirmation the resident and/or family members agreed."

He added: "Again, I can see nothing in the council's notes to indicate that happened in this case. Instead it appears the council simply told Ms V this was how she should make her payments, without any further discussion."

This was also fault, but it did not represent significant injustice to Ms V, the report noted.

Additionally, the Ombudsman found fault and injustice with the length of time it took the council to respond to Ms V's complaint.

Even taking the impact of the pandemic into account, the Ombudsman said he did not consider the seven-month delay to have been reasonable, "especially given that Ms V's complaint concerned a relatively narrow and straightforward issue".

Following the Ombudsman's findings, the council agreed to the following:

• offer to reimburse the full amount Ms V paid in third-party top-ups for Mrs P's placement at Home 4 since 2015;
• offer Ms V a further £150 to reflect the time and trouble Ms V went to in pursuing her complaint;
• take steps to remind all relevant staff of the provisions of the statutory guidance, which says the council is responsible for contracting with and paying a care provider for any placement it commissions and should, therefore, normally collect residents' contributions and any top-up payments, rather than allowing these to be paid direct to the care provider.

A Stockport Council spokesperson said: "The council has accepted the findings of the LGO and has implemented the recommendations made by the LGO in its report."

Adam Carey