Summary: Mrs X complained about her mother, Mrs Y’s, home care arranged by the Council. There was fault both by a care provider acting on behalf of the Council when it failed to tell the Council Mrs Y had gone into hospital and by the Council in how it investigated Mrs X’s complaint. This caused avoidable distress to Mrs Y and avoidable distress, inconvenience, time and trouble to Mrs X for which the Council agreed to pay financial remedies. It also agreed to clarify with its care providers its expectations when a service user is admitted to hospital.

The complaint

1. Mrs X complains about home care the Council arranged for her mother, Mrs Y, in December 2021. She says that:
• the Care Provider arranged by the Council failed to restart care visits after Mrs Y returned home from hospital;
• the Council wrongly charged Mrs Y for cancelled care after carers arrived late, including passing the debt to a collection agency; and
• the Council communicated with her poorly, including when she complained.
2. As a result, Mrs X says Mrs Y went without care she needed, which caused distress to both Mrs Y and Mrs X. She also says the Council’s failures caused her avoidable frustration and distress. She wants the Council to cancel the invoice for the cancelled care and to apologise for the distress it and its care provider caused.

Back to top

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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (Local Government Act 1974, section 26A or 34C)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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)

Back to top

How I considered this complaint

8. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the Council’s comments on the complaint and the supporting information it provided; and
• relevant Council contracts and policy.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
10. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

Back to top

What I found

Charging for non-residential care

11. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
12. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their care fees.

Council’s policy for non-residential care and hospital admission

13. In its standard contract with home care providers, the Council includes what it refers to as the ‘Hospital’ or ‘5-day’ process.
14. This says that where someone who is receiving home care arranged through the Council goes into hospital, the Council will maintain the package of care for a maximum of 5 days while someone is in hospital. This is so that care can be restarted as soon as someone is well enough to return home.
15. This section of the contract says that care providers must tell the Council as soon as they know the person has gone into hospital.

What happened

16. Mrs Y had home care arranged by the Council and provided by Provider A on the Council’s behalf. This consisted of four visits a day on Saturdays and Sundays. During the week, Mrs X provided care for Mrs Y. Because of her savings, Mrs Y paid the Council for the full cost of her care.
17. In early December 2021, Mrs Y went into hospital just before the weekend. Mrs X said she contacted the care provider late on Friday to cancel the care visits for the Saturday and on Saturday to cancel the care visits for the Sunday. Provider A said it had records from its out-of-hours service on Saturday afternoon that Mrs X had contacted them. However, there is no evidence that Provider A sent carers to Mrs Y’s home on either day that weekend.
18. Unknown to Mrs X and Mr Y, Provider A cancelled Mrs Y’s ongoing care the following week because it assumed she was still in hospital. However, Provider A did not notify the Council that Mrs Y had gone into hospital or that it had cancelled all future care visits.
19. The following weekend, no carer’s arrived to help Mrs Y out of bed, help her use the toilet and wash, or prepare her breakfast. After several hours, Mrs Y called Mrs X and was very distressed. Mrs X visited Mrs Y and saw to her morning needs. She also contacted the Council which tried to arrange replacement care but, because of the short notice, could not arrange replacement carers. Mrs X agreed to provide Mrs Y’s care over the weekend and asked the Council to arrange replacement care from the following weekend.
20. The Council arranged for a different provider, Provider B, to deliver Mrs Y’s ongoing care from the following weekend. Mrs X contacted Provider B and said she arranged to meet with carers to introduce them to Mrs Y at 8:30am the following Saturday.
21. Mrs X said the carers did not arrive at the agreed time or let her know that they would be late. Mrs X said she waited for around 15 minutes but could not wait any longer because she had an appointment elsewhere at 9am. Mrs X was disappointed that Provider B had missed the agreed appointment so she contacted them and cancelled any future visits. Mrs X also told the Council she would arrange Mrs Y’s care herself in future.
22. When the Council sent Mrs Y a final invoice for outstanding care fees, Mrs X called the Council to query why it had charged for visits which did not take place the weekend after Mrs X left hospital, and for the Saturday visits she cancelled with Provider B. Mrs X said the Council assured her the charges would be removed, but that she received further in invoices for the same amount in following months.
23. After, according to Mrs X, several months of repeated assurances, Mrs X complained to the Council about the invoices in March 2022. The Council agreed to investigate and to stop sending further invoices until it had done so. However, the Council did not suspend further invoices until Mrs X received another invoice and told the Council about this.
24. In its first response to Mrs X’s complaint, sent in early April 2022, the Council told Mrs X:
• the care from Provider A should have been cancelled with effect from the date Mrs Y went into hospital, rather than the following day;
• Provider B had not charged the Council for the care visits on the day Mrs X cancelled the care; and
• that Mrs Y did not owe the Council anything for her care visits.
25. Despite the Council’s response, it sent Mrs Y a further invoice in May 2022. This invoice removed the charges for the first visits in December 2021, but not for the care Mrs X cancelled with Provider B when the carers did not arrive at the agreed time.
26. Mrs X queried this with the Council which responded again in mid-May 2022. It said its first response had been incorrect and fees for Provider B’s first day were payable because Mrs X had given less than 24 hours’ notice to cancel.
27. Following further email exchanges between the Council and Mrs X, the Council sent its final response in late August 2022. In that response the Council:
• apologised that its first response was incorrect;
• that Mrs Y had agreed to give 24 hours’ notice to cancel when she first asked it to arrange her care; and
• since Mrs X had given less than this notice to cancel the care from Provider B, Mrs Y still owed money for the care Mrs X cancelled.
28. Mrs X was not satisfied with the Council’s response, so she complained to the Ombudsman.

My findings

29. Because of her health conditions, Mrs Y cannot authorise Mrs X to complain on her behalf. However, I am satisfied that Mrs X is a suitable person to bring a complaint for Mrs Y.

Care after Mrs Y returned home from hospital

30. On the balance of probabilities, I think it is likely Mrs X did tell Provider A that Mrs Y had gone into hospital on sooner than it said she did. There is no evidence that carers attended on the Saturday morning. However, I do not believe it matters when Mrs X told Provider A, since the Council ultimately refunded any care charges for that day.
31. Provider A said that, because it did not hear anything from the Council about restarting Mrs Y’s care, it cancelled its services five days after she went into hospital. However, it failed to tell the Council that Mrs Y had been admitted to hospital as it should have done. It also did not:
• tell Mrs X that she should let it or the Council know when Mrs Y was ready to come home;
• check with Mrs X or the Council when it had heard nothing; or
• tell the Council it had cancelled its future visits to Mrs Y.
32. These failures and missed opportunities to ensure the continuity of Mrs Y’s care were fault which meant that Mrs Y did not receive her first care visit on the Saturday after she came out of hospital. I am satisfied that, because of this, Mrs Y was left in soiled, wet clothing and without food since the previous evening. Given Mrs Y’s needs and that she had recently come out of hospital, I am satisfied she was particularly vulnerable and this caused her significant avoidable distress.
33. I am also satisfied the lack of care and effect of this on Mrs Y caused Mrs X avoidable distress and inconvenience. Mrs X received a phone call from Mrs Y, who was very distressed, and also had to care for Mrs Y over the weekend when she would normally have had a break from caring.

Replacement care by Provider B

34. I am satisfied that, on the balance of probabilities, Provider B agreed to meet with Mrs X on the first day it was due to start caring for Mrs Y and that the carers arrived after the agreed time without letting Mrs X know they would be late. However, I am satisfied the carers were unavoidably delayed and did arrive within the timescales the Council commissioned. I appreciate Mrs X was upset when the carers did not arrive as agreed, particularly in light of the events of the previous weekend. However, there is no evidence Provider B would not have been able to care for Mrs X.
35. The agreement between Mrs Y and the Council required 24 hours’ notice to cancel care visits and I am satisfied the Council made Mrs Y aware of this when she first asked the Council to arrange her care. Therefore, I do not consider it fault when the Council decided that Mrs Y was responsible for the charge for the first day of Provider B’s care since Mrs X gave less than 24 hours’ notice to cancel. I am satisfied the Council charged for this care according to its agreement with Mrs Y.

Council’s response to Mrs X’s complaint

36. In its first response to Mrs X’s complaint, it clearly told her that all of the disputed charges would be removed and Mrs Y owed nothing to the Council for her care. Despite this the Council removed only part of the charges and did not tell Mrs X it had made a mistake until she queried the next invoice.
37. The Council did not receive any new information about Mrs Y’s charges between its first response in April and its corrected response in May 2022. I am satisfied that the Council had the same information available to it both times it replied to Mrs X’s complaint. Therefore, I am satisfied that the Council’s first investigation into Mrs X’s complaint was flawed and its first response, stating Mrs Y owed nothing, was wrong. This failure was fault which wrongly raised Mrs X’s expectations and caused her avoidable frustration and distress when the Council corrected its response.
38. I am also satisfied, on the balance of probabilities, that the Council assured Mrs X several times that the invoices would be corrected, but that nothing happened until Mrs X complained to the Council.

Back to top

Agreed action

39. The Council has already apologised to Mrs X and Mrs Y for the failures I have identified above. However, I am not satisfied that an apology is an adequate remedy for the distress caused to Mrs Y and Mrs X.
40. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the care provider, I have made recommendations to the Council.
41. Within one month of my final decision the Council will:
• pay Mrs Y £150 to recognise the distress caused because she did not receive care visits on the morning of the Saturday after she returned home from hospital; and
• pay Mrs X £200 to recognise the distress, frustration, time and trouble caused by having to care for Mrs Y the weekend after she returned from hospital and the errors in the Council’s first response to her complaint.
42. Within three months of my final decision the Council will write to all the home care providers it contracts with to clarify:
• that care providers should notify the Council as soon as they become aware that someone they care for has been admitted to hospital; and
• what the Council expects care providers to do before cancelling care packages after a hospital admission.
43. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

44. I have completed my investigation. There was fault both by a care provider acting on behalf of the Council when it failed to tell the Council Mrs Y had gone into hospital and the Council in how it investigated Mrs X’s complaint. This caused avoidable distress to Mrs Y and avoidable distress, inconvenience, time and trouble to Mrs X for which the Council agreed to pay financial remedies. It also agreed to clarify with its care providers its expectations when a service user is admitted to hospital.

Back to top

Investigator's decision on behalf of the Ombudsman