Summary: Mr D complained about the Council’s handling of his wife’s residential care arrangements. He said it wrongly terminated its agreement with the Care Home and failed to provide enough advice. He also said it failed to reimburse his payment on an incorrect invoice and caused delays in its complaints handling. As a result, Mr D said he experienced distress and a financial loss. The Council agreed it had wrongly brokered the agreement with the Care Home, sent an incorrect invoice and its complaints response was delayed. It apologised to Mr D and offered to reimburse the amount of the invoice he said he paid. We found the Council at fault. In addition to its proposed remedy, it also agreed to make payment to Mr D to acknowledge the uncertainty its errors caused.

The complaint

1. The complainant, whom I shall refer to as Mr D, complained about how the Council dealt with the arrangement of residential care for his wife, Mrs X. He said the Council:
• wrongly terminated its brokered arrangement for Mrs X’s residential care in a care home (the Care Home);
• failed to advise him about the likely increase in the Care Home’s fees as a result of terminating its agreement;
• wrongly invoiced Mr D for the cost of residential care after it had terminated its agreement with the Care Home and refused to reimburse the payment; and
• caused delays in its complaints handling and failed to provide the information he asked for.
2. As a result, Mr D said he experienced distress and financial loss due to the increased Care Home fees for Mrs X’s care.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. As part of my investigation, I have:
• considered Mr D’s complaints and the Council responses;
• made enquiries with the Council and considered its response;
• considered the relevant Law, Guidance and Council Policy; and
• given Mr D and the Council the opportunity to comment on a draft version of this decision and considered the comments they made.

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What I found

Law, Guidance and Council Policy

8. The Care and Support Statutory Guidance set out what council’s must do when deciding if a person is entitled to support with their care costs. This includes:
• completing a financial assessment to find out if a person’s income or capital is above a statutory threshold for support;
• if a person’s income or capital is above the statutory threshold, a council must not make payments toward the cost of a care home. However, it can arrange the care and support for such individuals, but it is not required to do so; and
• it must be clear and transparent, so people know what they will be charged.
9. The Council’s Policy ‘Paying for Care’ says it will broker arrangement for a fee, but it will only do so for non-residential care.
10. The Council’s Complaints Policy says it will seek to resolve complaints informally. However, if a person makes a formal complaint it will:
• acknowledge complaints within three working days;
• respond to stage one complaints within 10 working days; and
• respond to stage two complaints within 25 working days.

What happened

11. Mrs X has care needs and lacks capacity to manage her financial affairs. Her husband, Mr D, holds a Power of Attorney (POA) to manage her financial affairs.
12. In 2019 Mr D asked the Council to arrange respite care for Mrs X.
13. The Council said it asked Mr D to complete a consent form and a financial information sheet. It also provided him with its leaflet ‘Paying for Care in Residential/ Nursing Home booklet’. However, he declined as he knew their capital were above the threshold. It later told Mr D in a call Mrs X would be self-funding for the respite care and advised him to speak with its finance team if he needed further information.
14. Mrs X and Mr D decided not to move Mrs X into a care home.
15. Later in 2019, Mrs X’s health worsened, and her care needs increased. Mr D arranged for her to be placed in short term respite care. He asked the Council for help to arrange a long-term residential care home for her.
16. The Council arranged a financial assessment of Mrs X to assess how her care should be paid for. It also agreed to extend the placement Mr D had arranged for a further week to allow it to complete its assessments.
17. Mr D and Mrs X visited care homes and set out their preferences to the Council.
18. The Council arranged for Mrs X to be placed in her preferred care home, the Care Home. The Council brokered the arrangement. This meant Mr D would pay it for Mrs X’s care costs and had the benefit of the Council’s lower rate with the Care Home.
19. At the same time, Mrs X was considered for NHS Continuing Health Care funding (CHC), which if accepted would cover her care home fees.
20. A month later Mr D asked the Council if Mrs X would be CHC funded. The Council told him Mrs X had only been recommended for NHS funded nursing care (FNC), which meant her care home fees had to be self-funded with the service commissioned through the Council.
21. The Council asked Mr D to complete a financial assessment form. It said he decided not to provide any financial information but agreed to pay Mrs X’s care charges in full.
22. In late 2019, Mr D called the Council again as he had not received written confirmation of Mrs X’s care home fees.
23. The Council wrote Mr D three times in December 2019:
• a letter with its invoices for Mrs X’s care charges from the date she was placed in the Care Home. It also said as she had sufficient means to pay for her care, it had ended its contract with her Care Home. It told Mr D from December 2019 the Care Home would send invoices directly to Mr D as Mrs X would be self-funding.
• a letter which explained its invoices and its backdated costs at the Council brokered rate. It also said when an 8-week respite period ends a standard rate no longer applies. Individuals may need to pay toward their care costs depending on their financial circumstances. A financial assessment would normally be arranged.
• an invoice for a four-week period after the Council had ended its agreement with the Care Home.
24. Mr D said he paid all the invoices the Council sent, including the invoice for the 4-week period after the Council had ended its contract with the Care Home.
25. Mr D complained to the Council. He said it has cancelled its contract with the Care Home for no reason and it would have had no costs for keeping the arrangement. He said the Council had failed to advise him properly and he was led to believe the arrangement would be long term. He asked the Council to pay the difference in cost between its brokered rate and his direct rate with the Care Home.
26. In response, the Council agreed it was at fault for incorrectly brokering the arrangement with the Care Home for three months in late 2019. It told Mr D its should not have brokered the arrangement, as Mrs X is a self-funder. It had therefore told him it had cancelled the agreement with the Care Home. It also acknowledged Mr D’s costs were higher under his direct arrangement with the Care Home. However, it explained this was its policy and apologised for the confusion it had caused.
27. In summer 2020, Mr D told the Council he had already paid its invoice for the four-week period after it had ended its contract with the Care Home. He asked the Council to transfer his payment to the Care Home and pay the difference in the costs.
28. The Council acknowledged it had invoiced Mr D for this period in error. It said it would reimburse the costs, but it could not find evidence it had been paid. It checked with its Finance Team and found it had received payment of three invoices, which included the invoice it had sent in error. However, as it had not received payment for one outstanding invoice for the same amount, it had transferred Mr D’s payment of this invoice to settle the account.
29. Mr D was not satisfied with the Council’s response and asked a Solicitor to represent him. The Solicitor complained again to the Council. He said:
• its responses were contradictory because it told Mr D, he would need to pay the whole care costs but also agreed its Social Worker had said Mrs X would be eligible for the reduced Council rate.
• Mr D had relied on the Council’s advice the cost of Mrs X’s care would be at the Council brokered rate. He had therefore chosen the Care Home;
• Mr D had paid all four invoices, including the invoice for the four-weeks after the Council’s agreement ended. As he had paid this, the Council should transfer the payment and the difference in costs to the Care Home for the four-week period; and
• it should provide a call recording with Mr D and Mrs X’s care records.
30. The Council acknowledged Mr D’s Solicitor’s complaint. It took five weeks to respond to the complaint and apologised for the delay. It said:
• it needed evidence from Mr D for the alleged four-week care cost overpayment, as it only had records of three payments; and
• it was its Policy not to broker care arrangement for self-funders. It would therefore not broker the agreement for Mrs X. However, it accepted it should have advised Mr D the Care Home fees were likely to increase when it terminated the agreement. An apology was given.
31. Mr D’s solicitor disagreed with the Council’s view and asked it to reconsider. He said Mr D had paid all four invoices, including the one it sent in error. He also said Mr D would not have chosen the Care Home if he had known the fees at the time when the Council incorrectly advised him. However, he was unable to change care homes when it terminated the agreement, as Mrs X was settled in the Care Home. And so, Mr D’s solicitor said the Council should:
• compensate Mr D and Mrs X for the stress and anxiety caused;
• settle all Mrs X’s arrears with the Care Home;
• reimburse the amount Mr D paid towards the incorrect invoice plus interest; and
• pay all Mr D’s solicitor and litigation costs.
32. The Council acknowledged Mr D’s solicitor’s complaint. It also sent a further email which apologised for the delay in providing its full response. However, it was aware he wanted a single response to the complaint. It explained it could not reimburse Mr D’s alleged overpayment of the invoice as it had seen no evidence of the payment being made.
33. The Council sent its final response to Mr D’s solicitor in late 2020. It apologised for its delay in responding but did not uphold the complaint. It said it accepted its Social Worker had not advised Mr D about the likely increase in fees when it terminated its agreement with the Care Home. However, it found he was aware of the cost of the Care Home’s fees because:
• he had previously arranged respite care for Mrs X privately and therefore knew the approximate costs of residential care;
• it had given him its leaflet. This explained self-funder’s care had to be arranged privately. It also warned the Council’s rates with care homes are sometimes less that privately arranged care;
• its records showed it had provided information to him and advised him to speak with its finance team if he needed more information. It also said Mr D had spoken with its Finance Team and said he understood the process; and
• the Care Home and Mr D would have spoken about the privately arranged care costs after the Council terminated its agreement.
34. In addition, the Council said it did not accept Mr D had made an overpayment as it had not seen evidence of this. However, it agreed to reimburse the amount paid to him.
35. Mr D was not satisfied with the Council’s response. He asked his solicitor to bring the matter to the attention of the Ombudsman.
36. During our investigation, Mr D told the Ombudsman his solicitor is no longer acting on his behalf.

Analysis

Brokering of the Care Home agreement

37. The Council agreed it wrongly brokered an agreement for a three-month period with Mrs X’s Care Home until December 2019. This is therefore fault. However, I am not satisfied Mrs X or Mr D experienced any financial loss as a result of this. This is because the Council’s fault meant she had lower care costs as she benefitted from the Council’s lower rates with the Care Home.
38. The Council also said it has taken steps to train and raise awareness of its Policy with its staff to ensure such errors do not happen again.

Termination of the Care Home agreement

39. I understand Mr D wanted the Council to continue to broker Mrs X’s arrangement with the Care Home. However, its Policy says it will not broker such agreements. When the Council realised its error, it decided to follow its Policy and terminate its agreement with the Care Home.
40. I have not found the Council at fault on this matter. This is because it did a financial assessment of Mrs X, which found she was not entitled to financial support with her Care Home fees. It told Mr D when its agreement with the Care Home would end. It explained Mrs X’s agreement would then be directly with the Care Home, which would provide its invoices to Mr D.
41. Mr D also believes the Council failed to properly advise him about the likely increase in the Care Home fees as a result of Mrs X’s direct arrangement with the Care Home. The Council agreed its Social Worker failed to tell Mr D about the likely increase in care costs. However, it found it had given Mr D enough information and he should have been aware the Care Home fees would increase.
42. I am satisfied Mr D was aware the fees would increase when Mrs X’s direct arrangement began. In reaching my view, I am conscious that:
• Mr D had visited Care Home’s and placed Mrs X in respite care beforehand. He would therefore have been aware of the expected costs of a direct arrangement with care homes in the area;
• Mr D did not want the Council’s Social Services to find a placement but insisted on the Council brokering the costs of the arrangement. On balance, I found this was likely to be because he was aware the costs would be lower through the Council’s brokered arrangement;
• the Council gave Mr D information and its leaflet on paying for care in a care home, which explained costs under direct arrangements were likely to be higher;
• it advised Mr D to speak with its Finance Team, which he did. The Council’s record shows he did, and he confirmed he understood the process; and
• Mr D would have received information and invoices directly from the Care Home when the Council’s agreement ended, which set out its fees for Mrs X’s care arrangements.

The incorrect invoice

43. The Council agreed it incorrectly invoiced Mr D for a four-week period after it had terminated its agreement with the Care Home. This is fault, which caused Mr D some uncertainty.
44. Mr D said he paid all the Council’s invoices. The Council disagreed and said he only paid for three of them. However, in response to his complaints, it agreed to refund the alleged payment he made without accepting it had received this.
45. I understand Mr D wants the Council to transfer the disputed payment on the incorrect invoice to the Care Home and pay the difference in costs for the four week-period. However, I found the Council’s proposal to Mr D to be appropriate. This is because:
• I have not seen enough evidence Mr D made the disputed payment. Nor it was received by the Council;
• it offered to reimburse the disputed payment to Mr D, which remedies the financial loss Mr D may have had; and
• it has apologised for its error.

Would Mr D have chosen a different care home?

46. Mr D said he may not have chosen the Care Home if he had known the Council would not continue to broker the agreement. He asked the Council to pay Mrs X’s Care Home arrears, which is equal to the difference in costs between the Council’s brokered agreement and Mrs X’s direct agreement with the Care Home.
47. I do not consider this is justified. As I have explained above, I have found no fault with the Council for putting rights its error with the brokering arrangement, and I consider that Mr D was aware of the correct fee structure when he made the direct arrangement.
48. Also, as Mrs X did not move care homes, she did not experience any distress such a move may have caused. However, I acknowledge Mr D said he did not move Mrs X to a different care home as she was already settled, and it is reasonable that he would wish to exhaust the complaints process before making any final decision.
49. If Mr D now wishes to pursue the option for Mrs X to move to a more affordable care home, this option remains open to him. I consider that is Mr D decides to pursue this option following our final decision, then the Council should make a payment to Mrs X to recognise her avoidable distress.

Complaint’s handling

50. Mr D said the Council failed to properly respond to his complaint. He said it did not provide some of the information he asked for.
51. I found the Council responded to the complaints Mr D and his solicitor made. Its responses addressed each of their substantive points. However, it took longer to respond than set out in its Policy. This may have caused Mr D some limited injustice. I am satisfied the Council’s apology and the explanation it gave is enough to remedy the injustice the short delay caused.
52. I acknowledge Mr D’s solicitor said the Council failed to provide a copy of Mrs X’s care record as he asked for. However, issues about information handling and sharing of records is a matter for the Information Commissioner Office (ICO). If Mr D or his Solicitor remains dissatisfied with the Council’s handling of this matter, they can bring such concerns to the ICO’s attention.

Injustice

53. I found fault by the Council which caused an injustice to Mrs X and Mr D. I also found the Council’s responses and its proposal have remedied most of the injustice it caused, including any financial loss they may have had.
54. However, I am not satisfied the Council’s apologies are enough to remedy the injustice caused to Mr D. This is because Mr D experienced some distress due to the uncertainty its errors caused. He also had time and trouble to bring his concerns to the Council’s attention.
55. In addition, if Mr D decides to move Mrs X to a more affordable care home within three months of my final decision, I recommend it pays Mrs X £300 to recognise this avoidable disruption.
56. I acknowledge Mr D asked for the Council to make payment towards the cost of his solicitor’s fees and litigation costs. I have not found any payment towards the cost of Mr D’s solicitor to be appropriate. This is because we do not provide normally provide such a remedy, unless in exceptional circumstances. I have seen no reason why Mr D could not have brought his complaint to our attention without the support of a solicitor.

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Agreed action

57. To remedy the injustice the Council caused to Mr D, the Council should, within one month of the final decision:
1. pay Mr D £150 to acknowledge the distress and uncertainty its errors caused, including the time and trouble he had to bring his concerns to its attention.
2. if Mr D decides to move Mrs X to a more affordable care home within three months of my final decision, I recommend it pays Mrs X £300 to recognise this avoidable disruption.

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Final decision

58. I have completed my investigation with a finding of fault by the Council. The actions the Council has agreed to take are sufficient to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman