Summary: Mrs X complained about the Council’s delay in completing a financial assessment for her mother’s residential care and about the ensuing confusion about how much has been paid and how much is still owed. The Council failed to follow the Care Act statutory guidance which says the Council should pay the contract in full to the home. The Council delayed in completing the financial assessment and never provided details of payments required for the full period Mrs X’s mother was in the care home.

The complaint

1. Mrs X complains about the Council’s delay in completing a financial assessment for her mother’s residential care and the ensuing confusion about how much has been paid and how much is still owed.
2. Mrs X says the home threatened to evict her mother because of the accrued arrears and is still demanding over £2,000 of unpaid charges. Mrs X says she does not understand why this money is owed as she thought the Council cleared the arrears to protect the placement. Mrs X says the continuing uncertainty and contact about the arrears is causing her distress as she is unable to pay.

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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 and taken account of their comments in reaching my final decision.

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What I found

6. Mrs Y had been in receipt of domiciliary care prior to being admitted to hospital in December 2018. Mrs X decided to move Mrs Y to a nursing home on her discharge from hospital on 31 December 2018 for a three week respite placement. The Council was not involved in this decision and did not commission the placement.
7. Mrs X contacted the Council in January 2019 and requested an extension of her mother’s stay in the home. It was originally planned that Mrs Y would return to her home at some point. This is demonstrated by the fact an Occupational Therapist (OT) planned a visit to Mrs Y’s home on 14 January 2019. However, Mrs Y never returned home and she remained at the home until she died in October 2020.
8. The Council retrospectively agreed to fund Mrs Y’s stay at the home from 31 December 2018 to 11 February 2019 as respite. Mrs Y remained in the home after this time as temporary placement. The Council carried out a mental capacity assessment on 28 March 2019 and found Mrs Y lacked capacity to make decisions on her care and accommodation. A best interest meeting was held on 9 May 2019 and it was agreed to make the placement permanent. The permanent placement began on 22 May 2019. The first payment to the home by the Council was made on 28 June and was over £11,000.
9. The Council completed a financial assessment and wrote to Mrs X in July 2019 explaining the amount Mrs Y was required to pay each week. The letter said Mrs Y would need to pay £88.65 per week from 22 May 2019 and explained this would leave Mrs Y with the government standard weekly allowance of £24.90 for her own personal use. The letter went on to say “if the home is run by London Borough of Croydon (LBC) we will invoice your client every 4 weeks. If the home is not run by LBC your client will be invoiced directly by the care home and LBC will meet the rest of their agreed costs.” There was no breakdown of Mrs Y’s income and capital included with the letter.
10. Ms X began making regular payments to the home on behalf of Mrs Y in August 2019.
11. In April 2020, when completing the annual financial review, the Council checked the Department for Works and Pensions information system and realised Mrs Y was in receipt of a benefit that it had not previously included in the financial assessment. Mrs X had previously declared this benefit on the financial assessment form and so the error was not her fault. The Council carried out a new financial assessment which increased Mrs Y’s contribution to £148.85. Mrs X made the first payment of the increased amount on 12 June 2020. The Council is unable to provide any evidence to show how or when it communicated this change to Mrs X.
12. Notes provided by the Council dated April 2020, indicate the Council agreed to pay the gross amount owed to the care home. It said it was doing this because Mrs X was not paying the client contribution on behalf of Mrs Y and this was putting the placement at risk. I have not seen any communication between the Council and care home about this matter. However, information recently provided by the Council about the amounts paid to the home show it did not pay the whole amount but continued to pay the net amount minus the client contribution.
13. In June 2020, the Council’s funding panel approved a payment of £3,343.29 to the care home. The limited notes provided by the Council show this payment was agreed due to the Council not informing Mrs X of the required payments. It says this debt is for the period 31 December 2018 to 22 May 2019. While the notes from the Council say it agreed to pay £3,343,29 the information provided by both the Council and the care home indicate a payment of £2,308 was actually made.
14. Mrs X continued to make the required client contribution on behalf of Mrs Y directly to the care home until Mrs Y died in October 2020. Mrs Y says she was shocked to find out the care home is pursuing her for a debt of £2,126.29. Mrs X says there is no money in her mother’s estate to pay this.

Analysis

15. Mrs X complains about the Council’s delay in completing a financial assessment for her mother’s residential care and the ensuing confusion about how much has been paid and how much is still owed.
16. The Care and Support Statutory Guidance covers issues of charging and financial assessment. At paragraph 8.33 the guidance states “where a local authority is meeting needs by arranging a care home, it is responsible for contracting with the provider. It is also responsible for paying the full amount, including where a top-up fee is being paid.”
17. The London Borough of Croydon only pays the full amount for care provided in homes that it runs directly. For all other placements, the home invoices the client who is required to pay the home directly. The guidance does not explicitly make this distinction and says the Council should pay the full amount to the care home. The Council says it is administratively easier and cheaper for it to require clients to pay care homes directly. As this arrangement is not in line with Government guidance, I consider it is fault.
18. In this case the Council did not notify Mrs X of her mother’s financial assessment until July, some seven months after she moved into the home. This delay is fault. I appreciate the circumstances of this case were not straight forward but there is nothing to suggest any urgency to resolve the situation and to give a clear indication to Mrs X what the costs would be.
19. The information provided shows the Council agreed to treat part of the stay as respite, then it was considered a temporary placement until it became permanent in May 2019. The only letter I have seen relating to the financial assessment is dated 12 July 2019 and details how much Mrs Y has to pay from 22 May onwards. I have not seen any information setting out how much Mrs Y has to pay from 31 December 2018. As a result Mrs X did not make any contribution towards the cost of Mrs Y’s placement until August 2019.
20. In June 2020, the Council agreed to make a payment to the home to cover Mrs Y’s arrears. The limited notes provided by the Council state this was agreed because of the Council’s failure to notify Mrs X of the amount she was required to pay. This action supports the position that the Council has never informed Mrs X of what she was required to pay towards her mother’s care from 31 December 2018 to 21 May 2019. This is fault.
21. The financial assessment carried out by the Council in July 2019 failed to include all Mrs Y’s income. This income was declared by Mrs X and the Council failed to include it. As a result, the financial assessment carried out in June 2019 was incorrect. The Council realised this error in April 2020 and carried out a new assessment which meant Mrs Y had to pay more. The Council has not provided any evidence to show how it notified Mrs X of this error. However, the amount Mrs X paid to the home increased in June 2020 and so I can only assume that she was told about the change in the financial assessment.
22. As the error in the financial assessment was the Council’s fault, it did not backdate the amount. As a result, I do not consider Mrs Y or Mrs X were significantly affected as a result of this error.
23. The Council’s delay in completing the financial assessment, the initial incorrect assessment and its failure to follow the guidance and pay the care home in full has resulted in confusion regarding payments and charges. The details of payments provided by the Council and the care home both show that Mrs X has paid over £8,300 on behalf of Mrs Y for the care received. While the details provided by the Council indicate this payment along its payments clear the account, the information provided by the care home shows arrears of £2,000. This ongoing confusion and demands for payment have been distressing for Mrs X.

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Agreed action

24. To remedy the injustice caused to Mrs X and Mrs Y as a result of the fault identified in this case the Council will, within one month of my final decision, take the following action:

• Apologise to Mrs X;
• Assume responsibility for the situation by dealing with the care home directly to resolve the issue of the alleged arrears. This will put Mrs X back in the position she would have been if the Council had followed the guidance and paid the full amount to the care home originally; and
• Pay Mrs X £250 to recognise the distress experienced.

25. The Council will also, within six months of my final decision, review its procedures and bring them into line with the Care and Support Statutory Guidance which states that where a local authority is meeting needs by arranging a care home, it is responsible for contracting with the provider and for paying the full amount.

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Final decision

26. 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