Summary: The Council was at fault when the care provider acting on its behalf wrongly billed a deceased resident’s family for outstanding care fees. The Council also failed to identify during its complaints process that it was the organisation responsible for the total cost of the placement and instead passed the responsibility for some of the outstanding fees onto the resident’s family. These faults caused the family avoidable distress and inconvenience. The action the Council intends to take is sufficient to remedy this injustice. The Council has also agreed to carry out our recommended service improvements to prevent recurrence of the same faults in future.

The complaint

1. Ms X complains that her family was wrongly billed for outstanding care fees relating to her mother-in-law, who passed away in April 2020.
2. Ms X says this caused her and her family distress as the bills arrived each year close to the anniversary of her mother-in-law’s death, despite the family providing evidence challenging any amount being outstanding.

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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. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
5. If we are satisfied with an organisation’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)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission.

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How I considered this complaint

7. I considered the information provided by Ms X and the Council.
8. I considered the relevant law and guidance as set out below.
9. I considered our Guidance on Remedies
10. I considered comments made by Ms X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

Top-up fees in adult social care

11. If a person chooses to go into a home that costs more than the 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 in circumstances, including if the person can find someone else (a ‘third party’) to pay the top-up.
12. When a council commissions the care, it is responsible for the total cost of the placement. This means that if there is a break down in the arrangement of a ‘top-up’, for instance if the person making the ‘top-up’ ceases to make the agreed payments, then the local authority would be liable for the fees. (Care and Support Statutory Guidance 2022, Annex A, paragraphs 28 & 29)

CQC standards, ‘Fees’

13. The Care Quality Commission (CQC) is the statutory regulator of care services. The CQC sets out 13 Fundamental Standards which care should never fall below. It has its own guidance on how to meet these fundamental standards.
14. Regulation 19 covers fees and says, ‘people should be given reasonable notice of when payments are due so they have the opportunity to arrange payment without incurring penalties or late payment fees’. (Care Quality Commission (Registration) Regulations 2009: Regulation 19, 19 (1) and 19 (1a))

What happened

15. Ms X’s mother-in-law had been receiving care in a care home and paying for some of it through a ‘top-up fee’ before she died in April 2020.
16. One year after Ms X died, Ms X’s family received a bill from the care home of £2,669 for what it said were unpaid fees on Ms X’s account.
17. The family’s understanding was that they had paid all the fees owed, so they contacted the care provider to request a breakdown of the debt. The care provider sent this to them.
18. Ms X emailed the care provider several times over the course of one month and said there were discrepancies in the provider’s breakdown of monies owed, including charges for periods when Ms X was not a resident at the care home.
19. The care provider continued to request the amount owed despite Ms X pointing to what appeared to be errors and providing evidence of payments the family had made.
20. On 21 May 2021, the care provider said if the family did not make the requested payment it would pass their account to a debt collection agency.
21. The family heard nothing more from the care provider regarding the debt, until April 2022 – around the two year anniversary of Ms X’s mother-in-law’s death. This time the family received a further bill for an outstanding amount of £168.43.
22. Ms X raised a complaint about this to the Council. The Council conducted its own investigation into the alleged debts over the past two years and the care provider admitted it had made a mistake.
23. It said a payment made in 2018 had not been added to the system until April 2021. However it said, after accounting for this, £168.43 worth of top-up fees was still owing on the account and requested that the family make the payment.
24. The Council informed Ms X of this in its complaint response. It said it had asked the care provider to waive the remaining fee due to the inconvenience caused to the family by the earlier error in its billing, but the care provider refused.
25. The Council said the matter of the outstanding amount was now between Ms X and the care provider and it could not assist any further. Ms X complained to the Ombudsman.
26. As part of our investigation, we requested that the Council ask the care provider to produce a written, itemised breakdown of the £168.43 debt which the care provider said was still owed by the family, showing which weeks and months the debt related to. The care provider ignored the Council’s numerous requests for this evidence.
27. The Council said to remedy the injustice caused to Ms X and her family, it would apologise to Ms X, pay the care provider the remaining amount it said was owed and ask the care provider to also apologise to Ms X for the distress and inconvenience it had caused her.

My findings

28. We treat the care provider’s actions in this case as if they were the Council’s, as set out in paragraph 4 of this decision statement.

April 2021 outstanding bill

29. One year after Ms X’s mother-in-law passed away, the care home acting on the Council’s behalf issued the family with a bill for a significant amount of money that they did not owe and threatened to pass the account to a debt collection agency.
30. Failing to give reasonable notice of a payment due was not in line with CQC Regulation 19. The provider also failed to manage its accounts properly as the amount owed was incorrect. The Council was at fault. This fault caused avoidable distress to the family at an already difficult time.
31. The Council took appropriate action to remedy this fault by investigating the care provider and determining that the majority of the fees requested were due to an error by the care provider.

April 2022 outstanding bill

32. However, the Council said that the outstanding amount from the April 2022 bill was still due and the matter was now between Ms X and the care provider.
33. The Care and Support Statutory Guidance makes it clear that councils remain responsible for the total cost of the care placement where the person making top-up fees ceases to make the agreed payments.
34. The Council should not have passed this responsibility onto Ms X, who had already been inconvenienced by challenging the earlier year’s mistaken bill. The Council was at fault.
35. During our investigation, the Council offered to apologise to Ms X and ask the care provider to do the same. I also welcome its offer to pay the remaining fee that the care provider alleges is still outstanding. These actions are appropriate and sufficient to remedy the remaining injustice. The Council has also agreed to my recommended service improvement actions to prevent reoccurrence of these faults causing injustice to others.
36. I have asked the Council to provide evidence of these actions.

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Agreed action

37. Within one month of the date of this final decision, the Council has agreed to apologise to Ms X for:
• the inconvenience and distress she was caused by the care provider incorrectly billing the family; and
• the Council’s failure during the complaints process to recognise that it remained responsible for the cost of the care placement and the avoidable time and trouble this put her to in coming to the Ombudsman.
38. Within one month of the date of this final decision, the Council has agreed to demonstrate that it has:
• requested that the care provider apologise to Ms X for incorrectly billing the family and for failing to respond meaningfully to their evidence challenging the outstanding bills; and
• paid the care provider the sum the provider alleges is outstanding of £168.43.
39. Within three months of the date of the final decision, the Council has agreed to demonstrate through evidence that:
• the care provider has carried out an investigation into why the family were incorrectly billed in this case despite receiving evidence from the family to disprove its calculations;
• improvements have been made to this care provider’s systems for billing residents to prevent this fault occurring in future;
• the Council has taken steps to improve this care provider’s approach to transparency and communication with the Council at all times, but particularly when being investigated; and
• the Council has reminded its complaints team and adult social care team that disputes over top-up fees are not only matters for the complainant and the care provider if the Council has commissioned the care.
40. The Council has agreed to provide us with evidence it has complied with the above actions.

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Final decision

41. I have completed my investigation. I have found fault leading to injustice and consider this has been appropriately remedied by the Council. I have also recommended an apology and several service improvements to prevent occurrences of the fault in future.

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Investigator's decision on behalf of the Ombudsman