The Ombudsman's final decision:
Summary: Mrs D complains the Council is at fault for charging her father-in-law for one-to-one care provided by a care home. We uphold the complaint finding the Council gave Mrs D no satisfactory explanation of an agreement it reached with the care home to pay for care. Consequently, Mrs D had no notice of the fee increase and no opportunity to limit her father-in-law’s exposure to the cost of care. The Council has agreed action to remedy the complaint, including writing-off half the money owed for the care.
- I have called the complainant ‘Mrs D’. She complains the Council is at fault for charging her father-in-law, ‘Mr E’, around £6000 for one-to-one care provided by a care home for around four weeks in October and November 2018. Mrs D helps her husband, Mr D, manage Mr E’s financial affairs. Mr D holds power of attorney for Mr E to do this. Mrs D says:
- she received no notice of the one-to-one care charge agreed between the Council and care provider;
- she received no explanation from the Council that it considered Mr E liable for the charge;
- the charge took no account of Mr E’s finances. Mrs D says these were close to the threshold where the Council had to help fund his care.
- Mrs D says it is unfair for the Council to pursue the charges in these circumstances. It will unreasonably deprive Mr E of money.
The Ombudsman’s role and powers
- 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)
- 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
- Before issuing this decision statement I took account of the following:
- Mrs D’s written complaint to this office and any supporting information she provided.
- Information provided by the Council in its correspondence with Mrs D sent before I began my investigation and in reply to my enquiries.
- Relevant law and guidance referred to in the text below.
- I also sent both Mrs D and the Council a copy of a draft decision statement which set out my proposed findings in this case and invited their comments. The Council said that it accepted my findings, while I received no further comment from Mrs D.
What I found
Background and key facts
- The beginning of events covered by this complaint is October 2018. Mr E was resident in a nursing care home in the Council’s area. He had lived there for over a year. Mr E paid for his own care as a ‘self-funder’, the Council having no involvement in his care. Mr E does not have capacity to manage his own financial affairs, so Mrs D’s husband has power of attorney to do this. Mrs D supports her husband in turn in managing his father’s finances.
- The care provider contacted the Council to say that it could no longer meet Mr E’s care needs. According to the Council’s notes the care provider said this had led it to serve notice on Mr E’s stay at the care home (although this was incorrect). The Care Provider said certain behaviours by Mr E led it to have concerns for the safety of other residents. It said it had consulted Mr E’s GP who could not recommend any changes to Mr E’s medication. It also said it had tried to contact Mr E’s family without success.
- The care provider and Council discussed Mr E receiving one-to-one care at the care home to minimise the risks associated with his behaviour. The Council agreed to pay for this. Its notes suggest from the outset it believed it could recharge Mr E for one-to-one care. It assigned a social worker to Mr E’s case.
- On the fourth day after the first contacts between care provider and Council, the care provider contacted Mrs D who had returned from holiday abroad. Mrs D learnt of the agreement to provide Mr E with one-to-one care from the care provider. But she understood the Council would pay for this. She did not understand the arrangement had any implications for Mr E’s finances. The care provider sent an email to the Council saying it had spoken to Mrs D. This said she had “consented to ASC [adult social care] funding”. The following day the care provider confirmed the cost of one-to-one care.
- Around one week after first contacts between care provider and Council, one of the Council’s finance officers spoke to Mrs D by phone about Mr E’s finances. He sent an email recording the call to Mr E’s social worker. The notes said that by November 2018 Mr E would have capital from various sources totalling around £24000. This would be slightly above the upper threshold of £23,250, below which users of services can receive financial help from the Council to help pay towards their care.
- The finance officer advised Mrs D to get back in touch with the Council when she could provide records to support the figures given over the phone. Internal Council notes suggest the finance officer did not know about the agreement to fund one-to-one care for Mr E or to try and recover that from his funds. There is no mention of the subject in the note of his call. While an email sent from the social worker afterwards to the finance officer was to make him aware of the arrangement.
- Around 10 days after first contact between care provider and Council, the Council’s social worker recorded speaking to Mrs D. The social worker’s note said Mrs D knew about the one-to-one care but did not know the cost. The note says after the social worker gave Mrs D these details she said Mr E’s capital would reduce quickly. The note suggested Mr E had received notice to leave the care home, although later emails and statements from Mrs D say the care provider never served notice.
- The following day the social worker met with Mr E at the care home. The social worker’s notes recorded something of the behaviours displayed by Mr E. Her notes suggested Mr E’s placement might qualify for funding from the NHS, known as continuing health care (CHC) funding. The social worker said Mr E needed a fuller assessment for this. Their note also recorded speaking to the care home and saying Mrs D knew payment for one-to-one care would come from Mr E’s funds.
- Social work notes say the social worker completed a ‘finance form’ with input from Mrs D in early November 2018. They said they checked the correct address for billing the one-to-one care.
- In mid-November 2018 Mrs D met with another finance officer. They noted the Department of Work and Pensions had wrongly suspended Mr E’s Attendance Allowance. They estimated Mr E would receive a payment of around £10,000 once the DWP lifted the suspension. They estimated Mr E would qualify for local authority funding for his care around mid-December 2018. This assessment factored in the cost of Mr E paying for one-to-one care.
- Shortly afterwards, the NHS confirmed Mr E qualified for CHC funding. The Council therefore stopped paying for Mr E’s one-to-one care.
- In late March 2019 the Council sent an invoice to Mrs D for £6500, to cover the cost of Mr E’s one-to-one care for 35 days. Its internal notes show that its finance service did not ask for payment before this date as it waited for the Council to pay the care provider first.
- The Council has confirmed that at no point did it put in writing to Mrs D the arrangement it had reached with the care provider to pay for Mr E’s one-to-one care. Nor its intention to recover money paid for that from Mr E. But it says Mrs D knew of the arrangement through her conversations with the care home and social worker.
- The Council has sent me a copy of its charging policy for care. This makes no reference to circumstances where the Council arranges care for an adult without capacity to consent, intending to re-charge the client later.
- In its response to Mrs D’s complaint the Council agreed to waive the equivalent of four days’ charges for Mr E’s one-to-one care. This is because it says it did not have Mrs D’s informed consent to charges for four days until after the care provider first contacted it.
- I am satisfied that when the Council received contact from the care provider in October 2018 it could enter an arrangement to agree one-to-one care for Mr E. I find authority for this in Annex H of the Government’s statutory care and support guidance. This says: “Sometimes, a person with sufficient means to pay for their accommodation in a care home, who was intending to arrange their own care, may not be able to enter into a private agreement with a care home. If this is because they do not have the mental capacity to do so and they either have no attorney or deputy to act on their behalf, or another person in a position to do so, the local authority must meet their needs. Therefore if their assessed needs are required to be met by the provision of accommodation in a care home, the local authority must provide that accommodation (and it will do so by arranging for an independent care home provider to provide it) for which the authority may charge the adult”.
- Taking account of the above, I consider the Council could step in and agree to fund extra care in Mr E’s best interests based on what the care provider told it. Because the care provider could not contact Mr D or anyone else holding a power of attorney or deputyship to act on Mr E’s behalf.
- However, the facts changed within four days. Because at that point Mrs D was in contact with the care provider. At which point it was for Mr E’s attorney (whom Mrs D represented) to enter into any agreement with the care provider. I do not consider the Council could continue to pay for one-to-one care for Mr E and expect to recover that money without the express agreement of Mrs D or other suitable family member.
- The Council failed to secure this either directly through its own efforts or via the care provider. The note of its conversation with the care provider after they contacted Mrs D cannot be taken as informed consent that Mrs D agreed to the arrangement. There is nothing in that note that says the provider explained the Council’s intentions to re-charge Mr E for one-to-one care. The note says Mrs D consented to “ASC funding” which supports her account, that she understood the Council was paying for this extra care.
- Mrs D then spoke to one of the Council’s finance officers but it is evident they did not know of the one-to-one care arrangement at all.
- It was not until around ten days into the arrangement, when Mrs D met with the social worker, that there is a suggestion the Council explained its intention to re-charge Mr E for his one-to-one care. I consider it implied from the note the Council understood Mrs D knew now of its intention to charge Mr E for the one-to-one care. But I consider the note is still too inadequate to clarify exactly what the Council told to Mrs D or what she understood.
- There was one obvious course of action for the Council to take. To set out in writing what it had agreed with the care provider and what it wanted Mrs D to agree in turn. Yet it failed to do this at any point during the time Mr E received one-to-one care. This was a failure of basic good administration. It was also contrary to the statutory guidance which stresses the basic principle that charges for care must be “clear and transparent”.
- The Council’s actions also appear to have taken no account of basic good practice in charging for care between care providers and users of their services. The Competition and Markets Authority produces detailed advice on fairness in contracts for care. This accepts that on occasion care providers can increase charges for care at short notice where needs change. But even in these circumstances, it continually stresses that some notice for fee increases must be given. It also stresses the need for changes to put in writing. This is so the user of the service or their representative can consider their position and decide if they want to remain with the care provider or move elsewhere.
- Yet the Council failed at any point in its discussions with the care provider to check what contractual arrangements it had in place. Or if it had put anything in writing to Mrs D.
- I uphold Mrs D’s complaint therefore that she received no adequate notice of Mr E’s fee increase. Nor did she receive sufficient explanation from the Council about what it had agreed with the care provider and its intention to re-charge Mr E for that one-to-one care. The Council was at fault for failing to attend to these matters.
- I also note that when the Council invoiced Mr E, it was over five months after it agreed to pay for one-to-one care. That delay was a further fault.
- The consequences of these faults are as follows. First the distress caused to Mr E’s family on receiving the bill for care for which they were not properly prepared. Second, they missed the opportunity to make representations to the care provider on the increased fee for care. They should have had chance to give informed consent.
- I have asked Mrs D if the family would have given informed consent if the arrangement had been clearly explained to them. Mrs D does not contest that Mr E needed more care or that the care provider gave this. However, she says to protect his resources the family could have sought to reduce the hours of one-to-one care, visiting and sitting with Mr E for longer. She may also have asked for CHC funding to be backdated to when Mr E’s needs changed. I think it reasonable that Mrs D would take these actions to limit the costs of the extra care. Understandably she also wanted proper notice of any fee increase and I have no reason to doubt Mrs D’s statement to me that the care provider commits in their terms and conditions to give a minimum seven days’ notice. These are all considerations relevant to deciding what represents a fair remedy to this complaint.
- I have also considered Mrs D’s argument that Mr E should not have to pay costs because his capital was, in any event, close to the upper threshold for care. I can see that based on the first financial assessment this might be so, if Mr E also had to pay for one-to-one care. But the second financial assessment introduced that Mr E had more capital, due to the non-payment of Attendance Allowance owed to him. Mrs D says the sum paid for this was less than £10,000 estimated by the Council. I consider it possible therefore if Mr E had to pay for all his one-to-one care he may have received some financial support from the Council. Although I am not persuaded the point will need further consideration given the Council’s agreement to actions set out below which will result in a reduction of the amount re-charged to Mr E.
- To remedy this complaint, within 20 working days of this decision the Council has agreed to:
- Provide an apology to Mrs D accepting the findings of this investigation.
- Reduce its outstanding invoice for Mr E’s care by 50%. I think this fair to reflect that Mr E’s family had no adequate explanation of the arrangement between the Council and care provider or notice of the fee increase. They also had no opportunity to make representations and/or potentially limit Mr E’s exposure to costs. I consider reducing the bill by this amount puts Mr E in a position he most likely would have been in but for the fault.
- Pay Mrs D £150 to reflect the distress caused by its actions and her time and trouble.
- For reasons set out above I uphold this complaint. I find fault by the Council causing an injustice to the complainant. The Council has agreed action that I consider will provide a fair remedy to the complaint. Consequently, I can complete my investigation satisfied with the action it has agreed to take.
Investigator's decision on behalf of the Ombudsman