Summary: Mrs X complained the Council commissioned Care Provider continued to take care charges out of her late mother-in-law’s, Mrs Y, account after she had died, to clear a debt. We found Mrs Y did have outstanding care fees however, the Council was at fault for not clearly explaining this to Mrs X or the family. The Council has agreed to apologise to Mrs X for the distress it caused and give her a symbolic payment to recognise this. The Council will also remind the Care Provider to ensure it provides information about debts to people in a clear and timely manner to prevent a recurrence of fault.

The complaint

1. Mrs X complained the Council commissioned Care Provider continued to take care charges out of her late mother-in-law’s, Mrs Y, account, after she had died to clear a debt. Mrs X said the Council did not refund the money, despite her requesting it to do so. She said it has caused her and the family distress. She wants the Council to apologise and to refund the money.

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The Ombudsman’s role and powers

2. 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)
3. 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)

4. 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)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

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How I considered this complaint

6. I spoke with Mrs X and considered the information she provided.
7. I considered the information the Council provided which included invoices and statements in relation to Mrs Y’s account.
8. Mrs X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

The Care Act 2014

9. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014, and the Care and Support Statutory Guidance 2014. When councils arrange a care home/nursing home placement, they have to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their care.
10. The rules state that people who have savings over the upper capital limit (currently £23,250) are expected to pay for the full cost of their residential care fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.

Standing orders

11. A standing order is an instruction given to the bank by an account holder to make regular payments to an individual or organisation. Only the account holder can control the frequency and number of payments or cancel the standing order.

What happened

12. Mrs Y had health problems. In late May 2020, Mrs Y moved into a Nursing Home commissioned by the Council. Mrs Y remained at the Nursing Home until she died in September 2022.
13. Initially, the Council fully funded Mrs Y’s placement at the Nursing Home. From late June 2020, the Council began to charge Mrs Y a contribution of £142.35 per week towards her care. The contribution was paid directly to the Nursing Home. The Care Provider’s records show Mrs Y made her first payment in November 2020. The payment Mrs Y made did not cover the amount of outstanding charges accrued since June 2020. Following this, Mrs Y set up a standing order with her bank to continue paying her weekly contribution to the Nursing Home. Mrs Y’s son was a joint owner of her bank account.
14. In January 2021, the Council recalculated Mrs Y’s contribution. It assessed Mrs Y needed to pay £127.73 per week from June 2020 to September 2020 then £229.25 a week from September 2020 onwards. The Care Provider recalculated the charges and this meant Mrs Y owed the Nursing Home an additional sum of nearly £3000. Mrs Y made a payment to the Nursing Home which covered this but it was not sufficient to cover the debt already accrued from June 2020. Mrs Y continued to pay her weekly assessed contribution.
15. When Mrs Y died in September 2022, Mrs X and the family did not cancel Mrs Y’s standing order with her bank. As a result, payments continued out of Mrs Y’s account until 7 November 2022.
16. In mid-November 2022, Mrs X noticed the payments out of Mrs Y’s account had continued and so she complained to the Care Provider. She said the Care Provider should not have continued to take payments out of Mrs Y’s account and asked it to provide a refund.
17. The Care Provider responded to Mrs X and said as her husband was the joint owner of the bank account with Mrs Y, he should have cancelled the standing order. It said it was not able to cancel the standing order however, if Mrs Y had been the sole owner of the bank account, the Care Provider would have frozen the account. The Care Provider acknowledged it should have advised Mrs X and her husband to cancel the standing order. It said it had raised the matter with staff so in the future they would be aware to advise people to cancel standing orders, in similar situations. The Care Provider also told Mrs X that Mrs Y had a debt with it from 2020 and so the overpaid contribution was used to clear the debt.
18. Mrs X remained unhappy and complained to us.
19. In response to my investigation, the Council said:
• the Care Provider sent Mrs Y’s family a letter in February 2021 with a statement which explained Mrs Y had an outstanding debt which she needed to clear; and
• the debt was from the period between June 2020 and November 2020. This was because Mrs Y did not start paying for her care until November 2020 and the payment she made did not fully cover the period from June 2020 until November 2020. In addition, Mrs Y’s contribution increased from September 2020. The Council provided me with invoices and statements to support this.

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Findings

20. I reviewed the letter which the Care Provider sent to Mrs Y’s family in February 2021 which the Council said explained Mrs Y had a debt. The letter did not clearly explain Mrs Y had outstanding care fees. This was fault. The Care Provider should have clearly told Mrs Y she had outstanding care fees and explained how this had happened. Instead, Mrs X and the family only became aware of it after Mrs Y had died when additional payments made in error to the Care Provider were not refunded. This caused additional distress to Mrs X and the family during a difficult time.
21. The Care Provider did not advise Mrs Y’s family to cancel the standing order when she had died. It recognised it should have done this. Since then, it has shared with staff that they should advise people to cancel standing orders when someone has died. This is appropriate and what we would expect the Care Provider to do.
22. Mrs Y received care at the Nursing Home and the Council properly calculated her contribution towards the cost of this care.
23. I reviewed the invoices and statements in relation to Mrs Y’s debt and they do support what the Council said. Mrs Y had a debt between June 2020 and November 2020 because she did not start paying a contribution until November 2020 and the payment she made in November 2020 was not enough to clear this. The Council had also calculated an increase in her contribution towards her care from September 2020. If the Care Provider had not used the additional contributions paid from Mrs Y’s account following her death to clear the debt, it would have sought repayment from Mrs Y’s estate. Therefore, I cannot ask the Council to provide Mrs X and the family with a full refund of the payments made as this was money properly owed to the Care Provider for Mrs Y’s Nursing Home fees.

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Agreed action

24. 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.
25. Within one month of the final decision, the Council agreed it will:
• apologise to Mrs X for the additional distress it caused by not properly explaining to her or the family previously, that Mrs Y had outstanding care fees; and
• pay Mrs X £150 to recognise the distress caused.
26. Within one month of the final decision, the Council will also remind the Care Provider to ensure it clearly informs people, in a timely manner, when they have a debt and how it has occurred.
27. The Council will provide us with evidence it has complied with the above actions.

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Final decision

28. I have now completed my investigation. The Council was at fault. It has agreed to the recommendations to remedy the injustice caused and prevent a recurrence of fault.

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Investigator's decision on behalf of the Ombudsman