The Ombudsman's final decision:
Summary: The Council delayed in resolving discrepancies between the amount it was paying a care home for Ms F’s care and the full cost of her care during the period Ms F’s finances were being resolved. However this did not cause Ms F injustice as the Council covered the cost of the shortfall for Ms F’s care when her finances were finalised and she was unable to meet the full costs in 2018.
- The complainant, whom I shall refer to as Ms F, says the Council has failed to properly manage payments to the private care home in which she resides. Specifically it failed to:
- make sufficient payments to the home from 2014 pending sale of her properties as it had agreed to. This resulted in the care home giving her notice to leave earlier this year; and
- since the sale of Ms F's properties in April this year, has failed to complete a financial assessment despite Ms F's solicitor providing it with financial information its officers have requested.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
How I considered this complaint
- I considered the information Ms F’s solicitor provided with the complaint and made written enquiries of the Council. I considered all the information before reaching a draft decision on the complaint.
- I have written to Ms F’s solicitor and the Council with my draft decision and given them an opportunity to comment.
What I found
- The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
- The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
- However, if a person who has been assessed as qualifying for Council funding chooses to go into a home that costs more than the personal budget the Council provides, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:
- the person can find someone else (a ‘third party’) to pay the top up.
- the resident has entered a deferred payment scheme with the council and is willing to pay the top up fee himself.
- In such circumstances, the council needs to ensure the person paying the ‘top-up’ enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.
- A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014). Councils have safeguarding policies and procedures in order to complete such enquiries.
- As I understand it Ms F moved into the care home in which she still lives in March 2014. Based on the information I have seen the Council was not involved in placing her in this home and it was entirely the result of a private arrangement between Ms F and the home.
- Until earlier this year Ms F owned a property which was sub-divided into a number of flats and bedsits. She also seems to have owned some other properties including a business premises which she leased. It seems that selling the properties was a long drawn out affair as some the flats/bedsits were being squatted in and one of the squatters was one of Ms F’s relatives who was sub-letting others of the properties and whose own position was somewhat protected.
- Based on the information provided by the Council it seems it was not entirely clear whether or not Ms F did own the property when it first became involved with the care home fees in 2014 and so the Council sought confirmation of ownership and the property’s deeds. Ownership was confirmed however and the property was eventually sold in April/May 2018 for around £110,000.
- Information provided by the Council shows that Ms F’s solicitor made a safeguarding referral to the Council regarding possible financial abuse of Ms F by relatives in May 2014. At this time Ms F was living in a private care home.
- Ms F’s solicitor was pursuing some complex legal avenues in order to sell property owned by Ms F and obtained lasting power of attorney in relation to her finances in Summer 2014. The issues of the sale of the property was not resolved until March 2018 when the property was sold. In the intervening period it appears Ms F received some rental income on property she owned.
- The Council says that during a safeguarding meeting the care home said they had not been paid since March 2014 and arrears had therefore arisen. It seems the arrears were the result of relatives who were then managing Ms F’s finances on her behalf not making the required payments for her placement. In response the Council agreed a social worker would arrange a needs assessment and “make the relevant funding application that a without prejudice payment could be arranged for backdated payment and continued payment until her property had sold. The without prejudice funding agreement was to enable payment until the financial assessment could be completed”. According to the Council’s chronology the care home invoiced the Council in October 2014 for backdated care home fees at a rate of £399 per week.
- The Council consequently agreed to pay the home at a rate of £390 per week to cover Ms F’s care backdated to March 2014 and her ongoing care. The care home signed a contract with the Council to enable the ongoing payment of this amount.
- The Council says that in 2016 the care home’s weekly fee for Ms F increased and so the Council agreed to pay £555 per week towards her care “on a without prejudice basis” from May 2016 and the care home signed an updated contract with the council to this effect.
- The Council says that in October 2016 the social worker contacted the Council’s charging team to say that the care home was increasing the care home fee to over £800 per week. It does not seem that the care home followed this up or any action was taken on this as it was not until one year later, in October 2017, that the Council received contact from Ms F’s solicitor stating that Council officers had agreed as part of the safeguarding process that Ms F’s placement in the care home would be part funded by the Council and topped up by Ms F in order to meet the full fee rate. The Council points out this was the first its finance team heard of any top up arrangement and says it emailed Ms F’s solicitor stating this. It does not seem the Council followed this up with the care home at this time.
- In March 2018, before Ms F’s property sale was completed, her solicitor sent the Council copies of the care home’s invoices for the top up payment and then in May 2018 the social worker received an email from the care home stating the care home wanted to give notice to Ms F to leave the care home due to the unpaid top-up fees.
- The Council says that the social worker confirmed there was a letter on the Council’s files which showed that the manager of the care home had contacted the Council in October 2016 in writing detailing the cost of Ms F’s placement in the care home and the need for a top up payment. The Council accepts that despite several meetings involving council officers none told Ms F or her solicitor that any top ups were not allowed. However, the Council says it accepted that it was in Ms F’s best interests to remain at the care home in 2018 and so the Council agreed to settle the outstanding invoices. In June 2018 the Council asked the care home to invoice the Council directly and it agreed with the care home that it would withdraw the notice requiring Ms F to leave. After initially stating the care home invoiced Mr F’s solicitor for the outstanding fees the care home eventually provided the Council with a bill for the outstanding amount in September 2018.
- The Council has now agreed a contract with the care home at a fee rate of £780 per week for Ms F.
Financial assessments and payment of the fees
- The Council completed some assessment of Ms F’s finances in 2014. It began trying to liaise with Ms F’s relatives about her finances around April 2014, making a number of appointments which were not kept by Ms F’s relatives. Consequently the Council decided to approach Ms F’s solicitor to complete a financial information form on Ms F’s behalf. The solicitor advised the Council it was seeking evidence of Ms F’s ownership of properties and details of bank accounts and benefits payments. Around Autumn 2014 it appears the solicitor provided accounts covering some years showing income from rent and some information about bank accounts. In November the Council wrote to the solicitor stating that based on the information it had Ms F was liable to fund her own care following the eventual resolution of her finances and properties.
- As stated the Council agreed to pay towards Ms F’s care until the finances were resolved with the understanding that it would be reimbursed when this happened.
- Between March 2014 and August 2018 the Council paid the rates it had agreed to (initially £390 and then £550 per week). The total it paid over this period was around £110,000. Ms F’s solicitor reimbursed the Council on Ms F’s behalf for these costs following the sale of Ms F’s property.
- It appears that there was a shortfall in the amount the Council paid for the care home fees and the full care home fee cost from the time it began to pay the costs on Ms F’s behalf until the sale of her property. Initially the shortfall was £281 per week, then £351 per week, followed by £451, £295 and finally £225 per week. This resulted in a total shortfall of around £70,000 from March 2014 to 2018. Following the sale of the property Ms F did not have enough money to cover this shortfall and the actual amount it had paid on her behalf.
- In November 2016 Ms F’s solicitor confirmed that ownership of properties had been confirmed and would proceed to be sold. When the properties were sold in early 2018 the Council began a full financial assessment.
- In March 2018 the solicitor confirmed details of Ms F’s bank account, income from the sale of the properties. The solicitor also stated that Ms F had agreed to top-up the amount the Council were paying to the care home to secure her placement. They enclosed the invoices they had received directly from the care home for this.
- In May 2018 Ms F’s solicitor confirmed that Ms F had agreed to pay the additional amount towards her care and confirmed that the invoices for the top-up were sent to the solicitor by the care home for settlement when the property sold. It appears the Council had believed that Ms F was receiving rental income for the now sold properties when it completed its original financial assessment in 2014 and information provided by the solicitor now seemed to contradict this so the Council asked for more information on this. It pointed out that records provided previously showed rental income being received which was included in Ms F’s income when the financial assessment and was not challenged at the time.
- In August 2018 the Council was still contacting the care home and the solicitor to try to assess Ms F’s complete income. In addition the invoices the care home sent to the solicitor did not correlate with information the care home provided direct to the council about the charges for Ms F’s care so it was also trying to resolve this discrepancy. After receiving further information it completed the financial assessment in late August 2018.
- The Council says it is settling the bills with the care home for the top up amount that caused the notice to be issued and has made a retrospective funding agreement to cover the shortfall in fees that the solicitor cannot now pay from the proceeds of the sale of the home.
- The Council confirms that an ongoing Contract of Care has been issued for Ms F following the signing of a funding agreement which was signed by the care home in August. Payments under this have now commenced.
Was the Council at fault and did this cause injustice?
- It is not the case that the Council did not make the payments it agreed to from 2014 to 2018. The Council did make the payments it agreed in its contract with the home. The Council argues it was unaware of any top up agreement made by Ms F until Ms F’s solicitor told the Council about the top up Ms F agreed to pay in 2017 and then forwarded an invoice for this in 2018 after the care home invoiced the solicitor following the sale of the property. Whilst the Council says this it is clearly noted in a safeguarding document in 2014 that the full cost of Ms F’s weekly care at that time was £650 per week and equally clear that the Council agreed to pay an amount of £390 per week shortly after being told this. It is therefore somewhat confusing that the Council later expressed surprise that an additional amount was due for Ms F’s placement. In addition in its comments to me the Council has said it should have considered the need to pay the full amount at the time the agreement to cover the fees was reached in 2014. I therefore conclude that the Council should have known from 2014 that the amount it was paying for Ms F’s care was not the full amount and should have investigated and resolved this discrepancy then. Had it done so the issues that arose leading the issue of the notice to leave the home in 2018 due to non-payment of the full amount would not have arisen.
- Even if it did not follow up the issue in 2014, the Council had a further opportunity to follow up the issue of the top up when this was brought to its attention in 2017. It did not do so.
- However, I consider any fault in its delay in following up the top-up payments earlier has not resulted in injustice to Ms F as the Council has now paid the full cost of the fees above the amount she obtained from the sale of her property. The Council has therefore agreed to pay the shortfall amount for the entire period of her time in the care home.
- The Council completed a financial assessment following the sale of Ms F’s property. This was clearly a complex process for the reasons detailed above and so took the Council longer to disentangle than it might had it been more straightforward. I do not consider the time taken was unduly long given this and it has resulted in the overdue fees being fully paid and a new long term contract being signed by the home to secure Ms F’s long term placement there.
- I have completed my investigation and uphold Ms F’s complaint. The Council’s failure to investigate the shortfall in the payment of the full fee before it did amounts to fault. However I do not consider this caused Ms F injustice as the Council has since agreed to pay the full amount of the unpaid top up amount when Ms F was unable to pay this following the sale of her properties and I consider it agreed this sufficiently promptly given the complexities of the financial assessment it then needed to complete in 2018.
Investigator's decision on behalf of the Ombudsman