Summary: the complainant, Ms X complained the Council failed to honour its commitment to fund her mother’s care in a care home the Council arranged for the family. This led to the family incurring a large debt. The Council said it provided the family with full details of the charges, outlined them in its financial assessment and so it believes they knew they must pay the care charges. We found the Council acted with fault in not making this clear. However, the service user’s financial assessment would always show she must pay a contribution to her care costs limiting the injustice. The Council agreed to apologise and pay £200 in recognition of the confusion and distress caused.

The complaint

1. The complainant Ms X complains the Council failed to honour a commitment to fund her mother, Mrs Y’s care in a care home arranged by the Council. This, she says, resulted in the family facing a debt for unpaid contributions to care costs.
2. Ms X wants the Council to accept Mrs Y is not liable for the contributions and to stop any action to recover the debt.

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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 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. In considering the complaint I have:
• Contacted Ms X and read the information presented with her complaint;
• Put enquiries to the Council and studied its response;
• Researched the relevant law, guidance, and policy.
6. I shared my draft decision with Ms X and the Council and reflected on any comments received before I made this final decision.

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What I found

7. Councils can charge for care and support services they provide or arrange. Charges may only cover the cost the council incurs. (Care Act 2014, section 14)
8. Councils must undertake an assessment of financial resources. (Care Act 2014, section 17)
9. The “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014” set out the charging rules for residential care. When the Council arranges a care home placement, it must follow these rules when undertaking a financial assessment to decide how much a person must pay towards the costs of their residential care.
10. The NHS arranges and funds full time nursing care. NHS Community Matrons assess and decide if someone needs fulltime nursing care. Councils must accept those decisions. People who the NHS does not assess as needing nursing care may receive support from the Council through residential care. Residents may receive services from the District Nurse Service but that does not signal they need full time nursing care. The NHS Community Matrons decide that.

What happened

11. In 2017 Mrs Y lived in a residential care home I shall call Care Home Q. By late 2017 Ms X says she and her family’s concerns about the quality of care offered at Care Home Q led them to discuss with the Council moving Mrs Y.
12. In December 2017 the Council’s records show Mrs Y’s social worker spoke with Ms X. The note says the Council’s social worker explained what the family thought of as a ‘top up’ payment for Mrs Y’s current care was in fact her assessed contribution towards the costs of the care the Council funded.
13. The Council sent an email in December 2017 to Ms X saying that Mrs Y needed a residential care home which offered rooms at the Council’s agreed care contract rate. The email set out where the family could find advice on how to choose a new residential home. The Council shared with them the community matron’s assessment that Mrs Y did not meet the threshold for NHS funded nursing care.
14. In January 2018 the Council wrote to Ms X confirming it could not arrange a placement in a nursing home because Mrs Y did not meet the threshold for nursing care. The letter explains the NHS arranges nursing care. However, the Council would help the family find a new residential placement. The Council suggested it arrange for residential homes in the family’s chosen area to formally assess Mrs Y and say if they could meet her needs.
15. The Council wrote to Ms X on 15 January 2018 to explain Ms X must take up any disagreement with the NHS community matron’s assessment with the NHS. The Council did not take part in the assessment but is bound by it. The email says the Council is responsible for Mrs Y’s residential care fees subject to her assessed contribution. The Council confirmed it would agree to a move by Mrs Y to another residential care home at a similar rate.
16. In February 2018 Ms X recorded a discussion with the Council’s social worker. Ms Y has supplied a transcript of the recording attached to a Statutory Declaration.
17. The transcript shows Ms X told the Council the family had found a new care home which said it may meet Mrs Y’s needs. However, the home wanted assurances on funding for the placement. Ms X asked the Council to confirm it would ‘sign’ the contract on Mrs Y’s behalf and agreed the cost of care. In response the Council’s officer said they had a rough price, which it had not yet agreed, but officers will get the cost agreed ‘at this end’. Ms X took this to mean the Council would agree to the fund the full costs of the placement.
18. Ms X sent an email the same day saying: “I do need to have in writing…that [the Council] are going to fund [the placement] that the deposit will be taken care of, as stated previously by Social Services…”. Ms X says this contemporaneous note shows she understood the Council would be funding the whole cost of Mrs Y’s care. The Council did not reply.
19. Mrs Y moved to Care Home Z on 22 February 2018. On 26 February 2018 the Council recorded a best interests’ decision to move Mrs Y to the family’s chosen care home, Care Home Z.
20. In March 2018 the Council wrote to Ms X apologising for her dissatisfaction in the service she received at Care Home Q. The Council said its safeguarding team continued to work with Care Home Q. In recognition of the dissatisfaction with Care Home Q, the Council offered to disregard the £814 care fees contribution it says Mrs Y still owed for her time in Care Home Q.
21. In responding to my enquiries, the Council says it seeks to place people in homes that provide for their assessed needs and that offer value for money. The Council says therefore it chooses the best home that can meet the client’s needs in their chosen location. The Council says its Service Placement Team explores the available homes in the chosen location and will share with the client’s representatives the choices available.
22. The Council says that its letter in March 2018 clearly referred to it removing the debt owed for Care Home Q. The Council says it has consistently told Ms X of Mrs Y’s liability to pay a contribution towards her care costs. The financial assessments carried out by the Council set out the contribution Mrs Y must pay. The Council says it only charges what the law says service uses can afford and it properly conducted the financial assessment. The Council reviewed the financial assessment each year from December 2016. In each year, it found Mrs Y liable to pay a contribution. The Council carried out two financial assessments following Mrs Y’s move to Care Home Z. Each decided she should contribute towards her care costs.

Analysis

23. I must consider whether the Council properly carried out financial assessments and made clear that Mrs Y would pay a contribution towards her care costs. It is not my role to decide whether Mrs Y is liable for the debt that is a matter for the courts.
24. The fraught circumstances of Mrs Y’s move in February 2018 caused by the issues her family reported about Care Home Q may have led to some misunderstanding. Therefore, the Council’s message needed clarity.
25. I have not heard Ms X’s recording of the telephone conversation between Ms X and the Council’s social worker. The transcript records an exchange which is open to interpretation. On the balance of probabilities, it is unlikely an experienced social worker intended to suggest the Council would pay the full costs of Mrs Y’s care without conducting a financial assessment. Previous financial assessments found Mrs Y must pay a contribution. Seen in that context her remarks may be interpreted as the Council will pay the fees subject to that contribution. The social worker did not use those words according to the transcript. Ms X believes she clearly asked for confirmation the Council would fund the total cost of care. The social worker confirmed it would but did not respond to the later email. That said, funding would be subject to a further financial assessment because the Council must by law carry out that assessment. Therefore, the social worker could not commit the Council to paying the full cost without a contribution.
26. The Council waived the outstanding debt for Mrs Y’s contribution to her care costs at Care Home Q. This coupled with Ms X’s understanding of the message in the telephone call, may have led the family to believe the Council agreed she did not have to pay any contribution. Therefore, any message about funding for Care Home Z must be clear and unequivocal. A letter or email following this conversation and in response to Ms X’s email, confirming the Council agreed to fund the care subject to the usual assessment may have avoided this misunderstanding. This was a significant telephone conversation about funding. I find the Council at fault for not following it up with a letter or detailed email confirming funding was subject to an assessment.
27. The law imposes a duty on the Council to carry out a financial assessment and claim from the person assessed any contribution towards care costs the assessment decides they must pay. So, while the Council has contributed to a misunderstanding, but for this fault Mrs Y would always have been assessed as needing to contribute to her care costs. That is no different to the previous assessment for the costs of Care Home Q. There is no evidence of a change in her financial circumstances. Therefore, I find that limits the injustice arising from the fault.
28. The Council caused Ms X and her family avoidable confusion and distress as a result. I have recommended a symbolic payment to address that applying our “Guidance on Remedies” which sets a scale of between £100 and £300.

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Agreed action

29. To address the injustice arising from the fault identified the Council agrees that within four weeks of this my final decision it will:
• Apologise to Ms X for the lack of a confirmatory email or letter after the telephone conversation leading to Mrs Y’s placement at Care Home Z;
• Pay Ms X £200 in recognition of the avoidable distress and confusion caused;
• Share this final decision with staff to highlight the need to confirm significant conversations to avoid messages being confused or misunderstood.

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Final decision

30. In completing my investigation, I find the Council acted with fault causing injustice.

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Investigator's decision on behalf of the Ombudsman