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Lancashire County Council (20 005 720)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 25 May 2021

The Ombudsman's final decision:

Summary: Mr X complains the Council has failed to deal properly with the charges for his mother’s (Mrs Y’s) care home, resulting in her paying so much she cannot afford to repay a debt to her family. The Council did not have to take account of the debt to Mrs Y’s family when assessing her ability to pay for her care. However, the Council was wrong to charge Mrs Y for a permanent placement between 17 June and 7 July 2019, as her placement did not become permanent until 8 July. The Council needs to waive the additional charges for this time.

The complaint

  1. The complainant, whom I shall refer to as Mr X, complains the Council has failed to deal properly with the charges for his mother’s care home.

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The Ombudsman’s role and powers

  1. 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)
  2. 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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have:
    • considered the complaint and the documents provided by Mr X;
    • discussed the complaint with Mr X;
    • considered the comments and documents the Council has provided in response to my enquiries; and
    • shared a draft of this statement with Mr X and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

  1. Mr X’s mother, Mrs Y, went into hospital on 30 March 2019. On 9 April Mrs Y was turned down for residential rehabilitation on the basis that she was high dependency and was not suitable for rehabilitation. The Council also considered the possibility of providing reablement care in her own home but decided against this because of the risk to Mrs Y between carer visits.
  2. The Council assessed Mrs Y on 12 April. According to its records she agreed to a short-term placement in residential care. The Council gave Mr X a leaflet about the financial implications of moving into a residential care. This explains that third-party top-up should not be paid from the resident’s money. Mr X said he would be willing to pay a top-up. The Council e-mailed him a list of care homes with vacancies complied on 11 April (10 had vacancies which involved a third-party top-up and eight had vacancies which did not). The e-mail explained that “due to the nature of the market, the current availability may fluctuate over the coming days”. Mr X says the list was not accurate, as some care homes did not have vacancies when he contacted them.
  3. On 14 April Mr X identified two care homes to assess his mother, Care Home A which did not involve a top-up and Care Home B which did.
  4. On 19 April Mrs Y went to stay at Care Home A. Mr X says the room given to his mother was inferior to the one they had been shown when they visited the Home.
  5. On 23 April Mr X told the Council his mother was not happy at Care Home A. She did not like her room and wanted to be closer to friends and family so it would be easier for them to visit. Mr X asked if she could move to Care Home C, which he said involved a top-up of £50 or £60 a week.
  6. On 26 April Mr X told the Council Care Home D had a vacancy which involved a top-up of £50 a week.
  7. On 29 April the Council asked Mr X to sign a top-up agreement for Care Home A. The Council accepts this was a mistake.
  8. On 30 April Care Home D told the Council it no longer had a vacancy.
  9. On 2 May the Council sent Mr X another list of care homes with vacancies (13 had vacancies which involved a third-party top-up and nine had vacancies which did not).
  10. According to the Council’s records, Mr X arranged for his mother to move to Care Home E on 3 May, which involved a third-party top-up of £75 a week. Mr X signed a document agreeing to pay the top-up to the Council.
  11. On 5 May Mr X told the Council his mother wanted to return home when she could.
  12. On 6 May Mr X complained about the Council charging Mrs Y for her care as he had been told she would receive free respite care for six to eight weeks.
  13. On 29 May the Council did a financial assessment for Mrs Y’s short-term placement at Care Home E. It wrote to Mr X to tell him how much his mother would have to contribute from her weekly income.
  14. On 4 June the Council visited Care Home E. It agreed to review Mrs Y’s needs on 17 June, to see if she could return home. However, her family raised concerns about this. The Council discussed the financial implications and agreed to send Mr X another leaflet about the financial implications of moving to residential care.
  15. On 18 June the Council produced a care and support plan for Mrs Y which says:
    • she wanted to stay long-term at Care Home E;
    • they discussed the pros and cons of going home or staying in Care Home E;
    • the Council would revisit on 8 July to discuss support options and assess Mrs Y’s mental capacity.
  16. On 20 June the Council arranged to visit Mrs Y on 8 July “to make the short-term placement [at Care Home E] to a long-term placement”.
  17. On 8 July Mrs Y agreed her placement should become permanent.
  18. The Council completed another financial assessment on 31 July and told Mr X about the new charge (£205.36 a week from 17 June).

The charges for Mrs Y’s care

  1. The Council has:
    • waived the charges for Care Home A (i.e. from 19 April to 2 May 2019)
    • charged Mrs Y £88.56 a week from 3 May to 16 June 2019
    • charged Mrs Y £205.35 a week from 17 June 2019 to 5 April 2020
    • charged Mrs Y £212.27 a week from 6 April 2020
  2. Since 17 June 2019, the Council’s charges have left Mrs Y with £30.65 from her weekly income.
  3. In February 2002 Mr & Mrs X entered a loan agreement with his mother. He says they did this because she could not enter into a commercial equity release agreement on her home because she only owned 50% of it. Mr & Mrs X’s agreement involved them paying Mrs Y £204.59 a month, on the basis that the loan would be repaid (including interest) from the sale of her home. Mr X says when they stopped making payments in 2012, Mrs Y owed them £87,247.63. Her share of the proceeds from the sale of her home came to £41,027.62, leaving a shortfall of £46,535.13. Mr X wanted his mother to repay this at £100 a week and expected the Council to take this into account when assessing her finances.

Mr X’s complaint

  1. Mr X complained to the Council on 17 October 2019.
  2. On 13 December the Council told Mr X it needed more time to investigate his complaint.
  3. On 31 March 2020 the Council told Mr X it had placed his complaint on hold until the COVID-19 emergency was over.
  4. When the Council replied to Mrs X’s complaint on 14 July 2020 it said it:
    • apologised for the delay and said this was due to initially losing his complaint and then due to suspending work on complaints because of COVID-19;
    • was not the Council’s policy to provide free care for eight weeks;
    • had explained the financial implication about moving to residential care and provided copies of its leaflet about this;
    • had provided lists of care home vacancies (with and without top-ups);
    • apologised the placement at Care Home A was not adequate and agreed to waive the charges;
    • the loan to Mrs Y was a private arrangement and the Council was not responsible for contributing towards repaying it.
  5. The Council points out the loan agreement provided for the loan to be repaid from the sale of the property. It did not provide for any shortfall to be repaid on a regular basis. The Council also points out that if there had been a shortfall following a commercial equity release arrangement, the company would have had to carry the loss.

Is there evidence of fault by the Council which caused injustice?

  1. Before Mrs Y left hospital in April 2019, the possibility of reablement care at home or intermediate care in a care home was considered, either of which would have been free of charge for up to six weeks. However, Mrs Y did not meet the criteria for either. I cannot therefore find fault with the Council for expecting Mrs Y to contribute towards the cost of her care when she left hospital.
  2. The Council increased Mrs Y’s charge from 17 June 2019 on the basis that is when her placement became permanent. Although the Council produced a care and support plan based on Mrs Y remaining in Care Home E from 17 June, both the plan and its other records show she did not agree for the placement to become permanent until 8 July 2019. The Council therefore needs to withdraw the additional charges from 17 June to 7 July 2019.
  3. I cannot find fault with the Council for not taking account of the outstanding debt arising from the loan agreement with Mrs Y. The Council is not responsible for the fact her family lent her money which exceeded the capital invested in her home. I cannot therefore find fault with the Council for failing to take account of the outstanding debt when assessing Mrs Y’s ability to contribute towards the cost of her care.
  4. The Care and Support Statutory Guidance says:
    • “The local authority must ensure that the person has a genuine choice of accommodation. It must ensure that at least one accommodation option is available and affordable within the person’s personal budget and it should ensure that there is more than one of those options”. 
  5. The Council gave Mr X a list of care homes with vacancies on two occasions, some of which required a third-party top-up and some of which did not. As the warning which accompanied the first list indicates (see paragraph 6 above), such lists do not necessarily evidence the availability of an affordable placement (i.e. one which does not require a third-party top-up). The Council needs to make it clear to people that if they cannot find a care home which does not require a top‑up, they can ask the Council to find one.
  6. While the failure to do this was fault, I cannot say this caused injustice to Mr X. All the evidence indicates avoiding a third-party top-up was not a priority for him. He confirmed he was prepared to pay a top-up and mostly identified care homes which required one. The Council gave him information which confirmed he would have to pay the top-up and he signed an agreement to do so. Nevertheless, the Council needs to make it clear to people that they can ask it to offer an affordable placement, if they have been unbale to find one themselves.

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Agreed action

  1. I recommended the Council within four weeks:
    • withdraws the additional charges from 17 June to 7 July 2019;
    • ensures it advises people they can ask the Council to offer an affordable placement if they have been unable to find one themselves.

The Council has agreed to do this.

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Final decision

  1. I have completed my investigation as the Council has agreed to take the action I recommended to remedy the injustice caused by its faults.

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Investigator's decision on behalf of the Ombudsman

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