Summary: Mrs C considers that the Council has wrongly charged for her late father-in-law’s residential care, despite having agreed that he was entitled to six weeks’ free care. The Ombudsman considers that the Council is entitled to seek the outstanding balance of £1,812.62 for her late father-in-law’s care.

The complaint

1. Mrs C complains that the Council has wrongly charged for her late father-in-law’s residential care when it had agreed that he was entitled to six weeks of free care.

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The Ombudsman’s role and powers

2. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by their personal representative (if they have one), or someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)
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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. 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

6. I have considered Mrs C’s written complaint and supporting papers and spoken with her. I have made enquiries of the Council and considered its response. I have also sent Mrs C and the Council a draft decision and invited their comments.

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What I found

Legal and administrative background

Charging for permanent residential care

7. 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 care.
8. 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.
9. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.

Charging for temporary residential care

10. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt that permanent admission is required. The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance 2014 set out charging rules for temporary residential care.
11. When the Council arranges a temporary care home placement, it must follow these rules when undertaking a financial assessment to determine how much a person must pay towards the costs of this stay. The Council can either charge the person under the rules for temporary residential charging or treat the person as if they are still living in the community (i.e. the non-residential rules for charging).

Council charging policy

12. The Council’s Residential Care Charging Policy and its guide entitled Paying for care in a residential home, nursing home or residential college set out how the Council financially assesses users of permanent residential care and residential respite care.
13. In respect of permanent residential care:
• Anyone with capital over £23,250 will be liable to pay the full cost of their care.
• Anyone with capital under £14,250 will have it disregarded in full in the financial assessment.
• Where someone has capital in excess of £14,250 but less than £23,250, the Council will include tariff income (equivalent to £1 for £250 of capital) in their assessment.
• Where a property owner does not have capital above £23,250, the value of that property will be disregarded from the financial assessment for the first 12 weeks of their stay at the care home.
• The Care Act requires individuals to be left with a Personal Expense Allowance (PEA) which was set at £24.90 per week for 2017/18 and 2018/19.
• Where an individual chooses not to disclose any financial details or engage with the financial assessment process, the Council will assess that individual as liable to pay the full cost of their care.
14. In respect of residential respite care:
• The Council will use a “light-touch” assessment rather than a full assessment or a non-residential care assessment.
• The Council will apply set weekly charges, based on the minimum benefit entitlement for individuals per age, less the specified PEA.
• The rate for a person over Pension Credit Age is £120.65 a week
• Individuals with capital over £23,250 will be charged the full cost of respite care.
• For temporary stays in a residential home, the value of a homeowner’s property will be disregarded.

Intermediate Care and Reablement

15. Intermediate care and reablement support services are for people after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help a person to preserve or regain the ability to live independently.
16. Regulations say that local authorities must not charge for the first six weeks of intermediate care or reablement services. They may make a charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)

What happened

17. Mrs C’s father-in-law and mother-in-law, Mr and Mrs D, lived in the home that they owned. Both Mr and Mrs D were in their 90s and Mr D received a package of care with visits four times daily to support him at home. Mr and Mrs D’s family live close to Mr and Mrs D’s home and provided considerable support.
18. In early 2018, Mr D’s health worsened, and he was admitted to hospital several times. Due to his increasing care needs, the Council discussed increasing his care to provide double-handed visits four times daily. Mr D submitted a financial assessment form in early March 2018 to assess his contribution to the proposed increased homecare package. However, Mr D was then admitted to hospital in late March.
19. The hospital considered that Mr D was medically fit for discharge in April, and the Council undertook an initial assessment to consider his home care needs.
20. Sadly, while Mr D was in hospital, his wife passed away. Because of this and given Mr D’s history of falls and hospital admissions, his family felt that he was not in a position to return home straight away. They therefore contacted a residential care home and privately arranged for him to have two weeks of residential respite care, commencing on 19 April at a rate of £950 per week (as set out in the Council’s notes).
21. On 23 April, a social worker undertook a full assessment of Mr D’s needs with Mr D, his three sons and daughter-in-law present. The social worker completed the assessment on 24 April. She noted that Mr D had savings of less than £5,000 and that the family could not afford to fund his placement at the home. The social worker agreed that Mr D needed four weeks’ respite to determine whether he would need a permanent residential placement or return home.
22. She negotiated with the care home which agreed to accept the Local Authority rate of £506 for four weeks’ respite from 27 April to 25 May, and to continue at that rate should Mr D’s stay then become permanent.
23. The same day, the social worker completed a Finance Charging Case Note, which comprises a questionnaire showing the discussions about financing. The note records that:
• Mr D’s savings were below £5,000. The family could not afford to pay the top-up, so the care home had accepted the Local Authority rate.
• Mr D would have to contribute towards the cost of his care starting from the respite stay.
• A financial assessment form to assess his contribution had been sent by email, though not the explanatory booklet.
• One of Mr D’s sons would be the financial contact.
• The boxes relating to six weeks’ (free) reablement were marked N/A.
24. A further assessment was undertaken on 11 May at which it was agreed that Mr D wished to stay permanently at the home and that this would best meet his needs. The social worker agreed to put this to the Council’s funding panel and refer the family to the Council’s finance team to discuss the implications. She would also complete the financing checklist for the NHS Clinical Commissioning Group for Full Nursing Care – this was subsequently agreed.
25. The social worker completed a further Finance Charging Case Note. The note records that:
• The family understood that Mr D would have to contribute towards the cost of his care from the day that he moved into the care home.
• Mr D would have capital above the threshold when he has sold his house and so would have to pay the full cost for his care.
• The Council’s Finance Team would be in touch about the financial assessment and to discuss deferred payments.
26. The permanent placement was agreed at a rate of £513 per week from 25 May.
27. On 24 May, the Council wrote to Mr D at his home address to confirm that the cost of his short-stay residential care would be £125.65 per week.
28. On 1 June, the Council wrote to Mr D at his care home to ask him to complete the financial assessment form by 15 June. The letter advised Mr D that, if the form was not completed and returned by that date, the Council would assess him as liable for the full charge.
29. On 20 June, the Council wrote to Mr D and explained that it would invoice him at a provisional rate of £204.65 per week (based on the provisional information supplied in the March 2018 financial assessment), and that it would charge the full rate if no financial assessment was completed.
30. The following invoices were issued in respect of Mr D’s residential care:

31. Sadly, while staying in the residential home, Mr D’s health deteriorated, and he passed away on 26 July.
32. The Council then issued a correction to Mr D’s account on 23 August 2018. This reduced the bill by £116.94 to reflect the fact that Mr D had passed away on 26 July, whereas the last invoice had been up to 29 July. The amount owing on the account was therefore £1,110.96 + £818.60 - £116.94 = £1,812.62.
33. As no further payment was received on the account, the Council wrote to explain that there was an outstanding balance on Mr D’s account. The letter was addressed to Mrs D, who had passed away. It included the two outstanding invoices and handwritten notes explaining that:
• The invoice for £1,110.96 included an additional charge of £292.36 from 25/5/18 to 3/6/18 (because the charge increased from £125.65 per week to £204.65 per week when the placement because permanent);
• a credit of £116.94 had been applied to the invoice for £818.60 to reflect the fact that Mr D had passed away on 26 July, revising that invoice to £701.66.
34. The Council received no response, so it sent another reminder on 11 January 2019.
35. Mrs C then contacted the Council about the invoices. She considered that the Council had wrongly included the charge that the family had paid for the first week of private care in its calculation. She said that the social worker had explained at the initial meeting at the care home in the presence of Mr D, his sons and herself that Mr D would be entitled to six weeks’ free care. She complained that the Council had addressed correspondence to her late mother-in-law. She also complained about the handwritten notes on the invoices.
36. The Council apologised for addressing invoices to her late mother-in-law. But it did not uphold her complaints about the billing. The Council said that the family was advised that there would be a charge for respite care and its records backed this up. It said that the charges were correct and that the handwritten notes on the invoices had been provided as clarification.
37. The Council accepted that the family may have understood that there would be an entitlement to six weeks’ free care. The social worker had no recollection of a specific conversation about this but accepts that there may have been a discussion about Mr D returning home and entitlement to reablement to support this. However, in this case the charge was for respite care and was correctly applied.

My assessment

38. The Council’s records clearly state that the family was informed that a charge would be payable. I note also that the £502.60 bill for respite care was issued on 30 May 2018 and paid on 11 June 2018 and was not queried at the time.
39. I appreciate that Mrs C strongly believes that the family were told that Mr D would be entitled to six weeks’ free care. But it was not until eight months after the initial meeting at the care home that this was first raised. I note also that the boxes on both the Council’s Finance Charging Case Notes were marked as not applicable. The type of care provided was respite care, which is chargeable, and the notes clearly show that the social worker was aware that this was chargeable, and that the family were told this. I see no reason to conclude that the family was misled about the applicable charges.
40. As to the invoices, I see no grounds to criticise the Council for adding handwritten notes to the invoices, as these was provided to clarify the amount owing.
41. As to the level of charges, Mr D received four weeks’ respite care, after the initial week paid for by the family. The standard charge for respite care was £125.65 per week.
42. Thereafter the Council assessed the charge for Mr D’s permanent care on the basis of the financial information that Mr D had provided. On that basis, the charge for Mr D’s permanent residential care was assessed at £204.65 per week. I see no fault here in the Council assessing Mr D’s contribution on the basis of the information received.
43. The balance of £1,812.62 is consistent with those rates and the chargeable dates.
44. Lastly, it is unfortunate that correspondence was addressed to the late Mrs D, but the Council has apologised for this and I do not consider that any further action is necessary in this regard.

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Final decision

45. I have closed my investigation into Mrs C’s complaint because I consider that the Council is entitled to seek the outstanding balance of £1,812.62 for her late father-in-law’s residential care.

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Investigator's decision on behalf of the Ombudsman