Summary: Mrs X complains the Council charged her mother, Mrs Y, for residential care even though she was in hospital. The information provided shows the Council made the decision Mrs Y could not return to the care home on 2 September but continued to charge for the placement until 5 September. The Council will refund the equivalent of three days charge.

The complaint

1. Mrs X, on behalf of her mother Mrs Y, complains the Council should refund the care charges for a period of five weeks when she was in hospital.
2. Mrs X says she has been financially disadvantaged by paying for care that was not received.

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The Ombudsman’s role and powers

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. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant’s representative;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant’s representative;
• sent my draft decision to both the Council and the complainant’s representative and invited their comments.

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What I found

6. Mrs Y moved into a care home in November 2012. In 2016 her condition deteriorated and she was admitted to hospital on 4 August 2016. Mrs Y remained in that hospital until 23 August when she was transferred to a different hospital. Throughout this time, Mrs Y’s room at the residential care home was kept available for her return.
7. The Council completed a care needs assessment on 30 August while Mrs Y was in hospital. Mrs X was present during the assessment. An assessment meeting followed on 2 September. The meeting determined that Mrs Y’s needs would be best met in an elderly, mentally infirm (EMI) nursing placement. Mrs Y’s current home was not registered to provide this service and so could no longer meet her needs. Therefore, the decision to end the placement and find an alternative was made on 2 September 2016.
8. As the placement ended on 2 September, there should have been no charge for it from 3 September onwards. The information provided by the Council in response to my enquiries indicates the Council paid the fees up to 5 September. The Council says it is not clear why the officer processing the payments paid up to that date.

Analysis

9. Mrs X believes the Council should refund the care charges for a period of five weeks when her mother was in hospital. While councils have the power to charge individuals receiving social care, the Care Act 2014 specifies that people can only be asked to pay what they can afford. Existing legislation also prevents a council charging more than the actual cost of the care to meet your needs.
10. Mrs Y’s placement, before she went into hospital, cost £538.50 per week. Mrs Y’s financial assessment required her to contribute £156.99 per week. Mrs Y would therefore only be entitled to a refund for any week when the charge was below £156.99.
11. When Mrs Y was first admitted to hospital it was not known for certain that she would not return to the care home. The Council was right to ensure her placement remained available so that she could return if required.
12. While I appreciate there may have been indications that Mrs Y may not be able to return, it was not until the meeting on 2 September that a decision was actually made. I am therefore satisfied the Council was correct to charge Mrs Y for the period from 5 August to 2 September.
13. The information provided by the Council about its contract with the care provider shows that the full fee is paid for the first 14 days the resident is in hospital. After this, for the next 42 days the Council will pay 80% of the full fee.
14. While Mrs Y was in hospital the amount paid for her placement by the Council to the home was greater than her contribution. However, the placement should have ended on 2 September but the Council continued to pay the home until 5 September. I therefore consider Mrs Y should not be charged for these days. The Council should refund the amount equivalent to Mrs Y’s contribution for three days charge.

Agreed action

15. Within one month of my final decision, the Council will make a payment as described in paragraph 14 above. This amount would normally be paid to Mrs Y’s estate but due to the passage of time it is possible Mrs Y’s estate is now finalised and so the payment should be made to the executor to distribute. The Council should check with Mrs X to find out who was the executor for Mrs Y’s estate.
16. Within three months, the Council should review its procedures for charging when a placement ends to ensure the correct periods are used and the correct charges are made.

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Final decision

17. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman