Last reviewed 20 May 2016

Jef Smith discusses the recent report from the Local Government Ombudsman (LGO) on the role of local authorities (LAs) in informing people about the cost of care homes.

As practitioners, we need to repeatedly remind ourselves that most potential service users are first-time buyers, new to this strange world of social care and often understandably very frightened by its complexity. There is a huge potential for taking wrong and possibly very expensive decisions without proper sensitively delivered information.

Many of the professionals who look like being capable of giving sound advice, in fact, have vested interests which could cloud their judgments. Homes want to attract custom, so their managers will naturally present performance in the best possible light. Associations of providers and even apparently independent advice agencies may not represent the field comprehensively and sometimes have agendas of their own. The social workers responsible for carrying out assessments of potential clients’ needs and finances are employed by the counties and boroughs whose resources are severely rationed, so can their counsel be trusted?

It was this last group, the LAs, that prompted the LGO to produce a document last September analysing how well or more often poorly local councils inform people about choices and costs relating to care homes. Counting the Cost of Care: The Council’s Role in Informing Public Choices About Care Homes is one of a series of “focus reports” prepared by the Ombudsman in an attempt to learn lessons from the complaints with which his or her office routinely deals. Its authors have therefore been able to call on a wealth of case material, particularly on the highly contentious issue of “top-ups”.

Often, the Ombudsman finds, councils provide no information about care homes, provide information that is wrong or misleading, or provide it only in inappropriate ways — over the phone or during a meeting when “people can’t be expected to remember everything they are told at what is often a very stressful time”. Beryl, for example, was told the council would pay “the full amount” for her mother’s care. Beryl assumed that her mother could top-up the home’s fee from her pension, but the council had already factored in the pension income to its calculation of how much it would fund at its standard rate.

Sometimes the choice of local homes includes none which are financeable within a council’s offered funding. This is of course an issue wider than information provided by the council, since the Care Act specifies that councils must have placements available which fall within the amount of fees they will pay. If there are no such places, it is the council which must meet the difference, that is the amount of personal allowance must be increased rather than immediately resorting to a client top-up.

Some situations involve more than information and cash put together; clients are very varied in their needs. Rita was afraid of lifts, a fact which limited the choice of rooms which would suit her in the offered home. Una and Fred needed to go into a home together. In both cases, the Ombudsman ruled that the councils concerned had erred and should refund the top-ups which had been paid, but this was of course only limited compensation for the heartache involved.

Top-ups, one of the most controversial and disagreeable elements of the present arrangements — implementing the Dilnot recommendations would have gone a long way to dealing with the issue, but that dream faded a while ago — provide endless scope for misunderstanding. Top-up agreements should not be left for homes to negotiate with residents or third parties and homes must involve the council in the deal. It is indeed the council which should take the initiative and ensure that everyone concerned is fully aware of what is being agreed. Numerous disputes, reports the Ombudsman, occur because this procedure is not followed.

It is not only councils which are open to criticism in this area. Some homes charge a top-up despite having previously agreed with a council to accept a placement at an affordable rate. This is nothing less than dishonest practice, though the Ombudsman — surely somewhat unfairly — holds the councils responsible in such cases, since the provider “is acting as an agent for the council when it enters into an agreement to care for someone”. A double-crossed council will be advised by the Ombudsman to repay the top-up to the client and must then seek redress from the provider.

Perhaps the most difficult situations of all occur where homes raise their fees without the matching councils upping what they will pay, or even worse, where the council unilaterally cuts its payment to a home. Residents are then left with no alternative but to cover the difference without ever having understood when they went into the home that a top-up might be required at some time in the future. Their only alternative at that point is to move to another — affordable — home, presuming that one is available.

Residents in this situation should insist on a new needs assessment and try to demonstrate that a move would be damaging, however, that may be difficult to prove. Whatever the outcome, even the threat of such disruption at a very vulnerable stage in their lives is a source of serious worry to residents and their families.

Further cases quoted by the Ombudsman feature a mother and son who were wrongly informed by their council about the financial liability they would incur from the mother’s owning a house and a care home, which was sold by a council to a private company resulting in an unpredicted increase in fees. In these and similar incidents, councils were clearly guilty of negligence in their duty to provide sound information.

Finally, councils sometimes carry out a financial assessment before a needs assessment, which the Ombudsman bluntly comments “is wrong”. Magda initially paid for her own care as she had assets above the threshold, but as she ran out, her daughter asked her council to accept her responsibility for funding. When the council insisted that Magda would have to continue to self-fund, the only alternative seemed to be to shift to a cheaper home, a fate which was averted by Magda’s GP insisting that she was not fit enough to cope with a move. It took the council another four months, however, before they carried out an assessment of Magda’s needs, accepted the GP’s advice and refunded the additional money Magda had paid out.

Despite the money eventually paid back to some of the families who have successfully appealed to the Ombudsman, the — often more or less nominal — sums are little compensation for the stress and trouble involved. Furthermore, the people who go through the whole complaints process are obviously only a small proportion, and in their ability and determination, an inherently unrepresentative sample of those who suffer from poor information.

Politicians have been boasting for a generation or more that they would once and for all remove the worry that older people can be effectively pauperised, by having to pay care home fees. There is still little sign of relief from that problem, but if LAs and providers took steps to ensure that prospective and current residents were thoroughly informed of their rights, there would at least be an end to many of the injustices which arise from ignorance of the system. The system is harsh and unjust, but that injustice is compounded for people who are misled.

The Ombudsman’s report clarifies some important issues. The questions it poses for both councils and providers, which are succinctly summarised in its closing section, need to be addressed urgently. Information may not invariably confer power, but false information certainly takes it away.