Summary: A care home complained the Council was not paying care fees as it should. It said it had continued to provide care to its resident but had not been paid for this over a significant time. Based on evidence we find the Council is at fault and has caused an injustice. We have recommended the Council pay all outstanding fees and apologise.

The complaint

1. A care home complained the Council has failed to make a payment which had been agreed for one month when a resident’s needs changed. It also complained the Council unreasonably delayed agreeing and paying for the residents’ ongoing care needs.
2. X has continued to provide the care needed to its resident but has not been paid for this. It has also had to chase the Council repeatedly to try to reach an agreement on ongoing fees.
3. X is seeking confirmation that the fees are agreed, and payment of the overdue fees.

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The Ombudsman’s role and powers

4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. If we are satisfied with an organisation’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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What I have and have not investigated

7. My investigation does not look at how the sum was calculated, only the way in which the Council has dealt with payment.

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How I considered this complaint

8. I considered evidence provided by X and the Council.
9. X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

What happened

10. Mr A, a resident at the care home, went into hospital in April 2023. When he was discharged, his needs had changed considerably.
11. The care home contacted the Council to explain it would now need to provide a greater level of care including some 1;1 support. The Council agreed to pay the additional fee requested for four weeks, ending mid-June. At that point, the care home would review Mr A’s needs.
12. On 26 June, the care home told the Council Mr A’s condition had not improved so he would need the extra care for an extended period. The care home provided a similar update to the Council on 27 July. The Council did not respond.
13. On 1 August, the care home contacted the Council again to say Mr A’s condition was not showing any improvement. It asked that the Council confirm the higher rate of fees was agreed from mid-June to mid-September. It also said the higher rate of fees may eventually become a long term increase.
14. The Council did not respond until 12 September. The Council asked whether there had been any improvement in Mr A’s condition. It also said it needed more information before it could approve the higher rate of fees from mid-June.
15. Between September and December 2023 the Council and the care home went back and forth about the information the Council was asking for and why this was needed. All the requested information was provided by 8 January 2024.
16. On 7 May 2024 the Council told the care home the added fees were being considered by its scrutiny panel that day. The panel decided the Council would pay additional fees backdated to June 2023.
17. The Council offered to make a reduced payment to the care home and sought to negotiate the fee down, saying this was because the Home had delayed providing information. The care home did not accept the sum offered.

Analysis and Findings

18. I have seen the Council agreed to pay a sum of £1,973.79 a week for four weeks from mid-May to mid-June 2023. This should have been paid in a timely manner. The Council did not do so and this is fault. The Council has caused an injustice by depriving the care home of fees it is entitled to for a service it has provided. It should pay this sum in full.
19. From mid-June to mid-September 2023, the Council knew the care home was providing an increased level of care to Mr A. It did not let the care home know it was not in agreement with this. By allowing the care to continue whilst being updated that the care remained at the higher rate, the Council implied its agreement to pay for this care. It should therefore pay for this time at the sum agreed for the initial four weeks.
20. The Council’s failure to respond to the care home in June 2023 until September 2023 is fault. Its response and request for information was delayed by three months.
21. Following the Council’s request for information, the care home failed to provide all the information until 8 January 2024.
22. On the balance of probability, the care home would have taken as long to provide this response even if the Council had requested it in June 2023. The care home could have then provided the information by October 2023.
23. In this case, the Council did not take the issue to the scrutiny panel until May 2024. However, we would expect this to have been done without delay. Had this been done, on the balance of probabilities, the panel decision could have been made by November 2023 even if we allow for the care home’s delay.
24. The Council is therefore responsible for delays of at least six months in reaching a decision at panel. As above, the Council’s delays are fault.
25. The scrutiny panel outcome was that the additional fees should be agreed and backdated to mid-June 2023. However, it said the fees should be jointly funded as there were delays caused by the provider also. The care home’s delay has no bearing on the level of support it provided to Mr A, or the cost of that support.
26. The delay does not excuse the Council from its responsibility to provide funding for a resident where it had agreed to do so. The care home had set out its fee for doing so at the outset, and the Council allowed the care to go on. It is therefore responsible for payment for that service.

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Agreed Action

27. Within one month of the decision, the Council will:
• Apologise to the care home for the faults and injustice identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay £1,973.79 per week from 18 April 2023 to 21 August 2024 less any sums paid for Mr A’s care during this time.
28. The Council should provide us with evidence it has complied with the above actions.

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Decision

29. I find fault causing injustice. The Council has agreed to take action to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman