Summary: Mrs X complained the Council failed to properly advise her son about the cost of residential care and about its complaint handling. This led to a large and unexpected invoice. The Ombudsman has found the Council to be at fault. The Council has agreed to apologise, reduce the charges for care and review its practices.

The complaint

1. The complainant, whom I shall call Mrs X, complains that the Council failed to provide correct advice to her son about care costs when she was discharged from hospital to a care home. As a result, she was presented with a large, unexpected bill several months later. She also complains about the Council’s poor complaint handling about this.
2. Mrs X is represented by her son, Mr D, in making this complaint.
3. Mr D says that he would have explored different, less expensive care homes, had the Council provided correct information at the right time. He says Mrs X’s financial resources have been significantly reduced because of this avoidable mistake.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. As part of my investigation I have:

• considered the complaint and documents provided by Mr D;
• made enquiries of the Council and considered its response;
• considered the relevant law and statutory guidance;
• spoken to Mr D; and
• sent my draft decision to both parties and invited comments on it.

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What I found

Relevant law and guidance

Charging for 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 residential care.
8. The rules state that people who have over the upper capital limit (currently £23,250) are expected to pay for the full cost of their residential care home fees (self funding). Councils must not pay towards the cost for people who are self funding. 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. People in a care home will contribute most of their income towards the cost of their care and support.

Deferred payments

10. Local authorities should offer a deferred payments scheme to people who would be assessed as self funding if their home was sold. The Council pays the difference between the actual assessed client contribution and the amount that would be assessed if the value of the home were disregarded. The Council takes a legal charge on the home so it can be sold later and the Council repaid from the proceeds. If the cost of the placement exceeds the Council’s usual price, the top up is usually added to the deferred amount. The property must be sold on the person’s death if it has not already been sold.

Top-up payments

11. If a person chooses to go into a home that costs more than their personal budget, 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; or
• the person has agreed a deferred payment arrangement with the council and is willing to pay the top-up fee himself.

What happened

12. Mrs X was a resident at Care Home A. In 2016, because she owned her own property, Mrs X had decided to enter into a deferred payment agreement. This meant the Council covered the full cost of the placement but would reclaim this back once her house was eventually sold.
13. In February 2018, Mrs X was admitted to hospital. Because her health deteriorated, she could not return to Care Home A. In March 2018, she was discharged to a different care home (Care Home B) for rehabilitation, while a more suitable, permanent option was found. This short term placement was paid for by the NHS.
14. The weekly fee at Care Home B was much higher than Care Home A. Mr D says he was told by his mother’s social worker (Social Worker J) that Mrs X would carry on paying the same as she had at Care Home A.
15. In April 2018, Officer J carried out a care needs assessment. This determined Mrs X required nursing care. Mrs X was also assessed as not having mental capacity to decide where she should live. The Council’s brokerage team identified four possible nursing homes, one of which was Care Home B. Mr D chose for Mrs X to stay at Care Home B as she was settled and happy there.
16. He says he was not told Mrs X would be responsible for paying an extra £500 per week more than at Care Home A.
17. In October 2018, Mr D received a statement for care costs that were accruing against the deferred payment agreement. It was considerably higher than he was expecting.
18. Later that month Mrs X became eligible for Continuing Health Care funding and so did not have to pay for her own care.
19. Mr X tried to discuss this with a member of the brokerage team. He said he had difficulty speaking to anyone. Frustrated by this, Mr X complained in January 2019.
20. The Council responded to his complaint in August 2019. The Council said Mr D had not told Officer J that Mrs X had entered into a deferred payment agreement and Officer J advised on this basis. She had advised that Mrs X’s assessed contribution would not change, regardless of where she lived. If Mr D had told Officer J about the deferred payment agreement, her advice would have been different.
21. Mr X replied with comments and objections. The Council did not reply so he brought his complaint to the Ombudsman. In response to the Ombudsman’s enquiries, the Council made the following points:

• Officer J was unaware from the Council’s systems that there was a deferred payment agreement in place.
• The Council’s Brokerage Team should have issued a “Resident’s Agreement” when Mrs X’s stay at Care Home B was made permanent in April 2018. This would have explained the costs at Care Home B.
• The Council’s Finance Team was unaware of the placement at Care Home B until July 2018. An assumption was made that Mr D was already aware of the weekly cost so did not write with any costings until October 2018. The Council has accepted this was “inadequate”.
• Council officers discussed Mr D’s further complaint letter in August 2019 but did not reply.
• Offers of four alternative homes were made to Mr D in April 2019, but no records exist about the costs of these placements.

Analysis

22. The Ombudsman expects councils to ensure residents and their families understand the financial implications of different care choices before they decide.
23. When Mrs X was in hospital, Mr D was told there would be no additional cost when Mrs X moved into short term assessment bed in Care Home B. This is not in dispute.
24. The problem arose at the end of this temporary stay in April 2018. Officer J assessed Mrs X as needing nursing care and long term options were discussed with Mr D. Again, it is not in dispute that several other nursing homes were suggested as possible options for Mrs X, although the Council has since accepted that they were unsuitable because of their locations.
25. Mr X says he wanted Mrs X to stay at Care Home B because she was settled and he was told it would not cost Mrs X any more that she had previously been paying.
26. Again, this is not in dispute. Officer J, in her response to the Ombudsman’s enquiry stated, “Mr D told me his mum was funded by the Council. I checked there was a service provision. On that information I told him his mum’s weekly assessed charge wouldn’t change. At no time did he tell me that his mum was on deferred payments. Had I known about the deferred payments the information I gave him would have been different”.
27. She goes on to say, “Mr D would have signed the deferred payment agreement so he should have known the implication of this”.
28. I disagree. The obligation is on the Council to properly explain the implications of different care options. I do not accept Mr D should have known that the deferred payment agreement would have made a difference, particularly as he was correctly told when Mrs X moved temporarily to Care Home B that the cost would not increase.
29. It is also concerning that Officer J did not have any discussion with Mr D about how the difference in cost between Care Home A and Care Home B would be met at the end of her temporary stay at Care Home B. As she believed Mrs X was entitled to council support (because her capital was below £23, 250), I would expect to see some discussion about top up payments. According to the records, there was no such discussion.
30. In any event, whilst verbal explanations are helpful, they should be confirmed in writing, particularly where important financial matters are concerned, so the person can make an informed decision about care. Instead it took a further six months for Mr D to be made aware in writing that Mrs X was being charged approximately £500 per week more than he thought she was, albeit accrued against a future property sale. The Council has accepted this was “inadequate” and I agree. This failure to provide written confirmation of the cost of care has also impacted on the remedy set out at paragraph 34 below. This could have been significantly reduced had the Council notified Mr D of the costs when it should have done.
31. Mr D says had he known this he would have considered moving Mrs X to a less expensive care home at the end of her temporary assessment stay. I have no reason to doubt this as it is a reasonable position to take.
32. On the evidence I have seen, I am satisfied the Council failed to explain, either verbally or in writing, the financial implications of Mrs X being a permanent resident at Care Home B. This is fault and could have been avoided had the Council had a system in place to ensure Officer J was aware of the deferred payment.
33. I also find fault in the Council’s handling of Mr D’s complaint. It took 8 months to reply to his first complaint and did not respond at all to his follow up letter. This delay is too long. While the Council’s Adult Services Complaints Procedure does not provide a timeline for complaint handling, the Ombudsman generally considers 12 weeks to be the maximum time a complaint investigation should take.

Agreed action

34. To remedy the injustice caused by the Council’s actions, the Council has agreed to take the following action within four weeks from the date of my final decision:
1. Apologise to Mrs X and Mr D in writing.
2. Pay Mr D £250 to acknowledge the delay in dealing with his complaint and the time and trouble he has spent pursuing it.
3. Reduce the amount owed by Mrs X to the Council that accrued under the terms of the deferred payment agreement. The reduction should be the difference in cost between Care Home A and Care Home B between the date she became a permanent resident in March 2018 to the date she became eligible for NHS funding in October 2018. This remedy was informed by the general principle set out the in Ombudsman’s Remedies Guidance that states the remedy should aim to put the complainant back in the position they would have been in had the fault not occurred. In this case, I am satisfied Mr X would not have chosen Care Home B on the basis of how much it cost. It is also relevant that Mr D was not provided with details of alternative, suitable homes. The Council has accepted that the homes offered at the time were not suitable because of where they were located.
4. Review its internal processes and systems to ensure information about deferred payments is readily available to front line staff providing advice to families about care costs. The Council should inform the Ombudsman what action has been taken to address this issue.

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Final decision

35. The Council was at fault when it failed to properly advise Mrs X and Mr D about care home fees. To remedy the injustice caused, I have recommended the Council should apologise, reduce the amount charged for care, pay Mr D a time and trouble payment and review its practices.

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Investigator's decision on behalf of the Ombudsman