Summary: Ms X lives in a Care Home and was paying her own fees until she reached the financial threshold. For three months after she reached threshold, the Care Home was overpaid as it received fees from Ms X and the Council. The Care Home refused to refund Ms X. The Care Home has refunded Ms X but her son, Mr Y does not consider the amount is correct. The Ombudsman found the Care Home refunded the correct amount but failed to explain how it calculated the amount, causing Ms X and Mr Y stress.

The complaint

1. Ms X lives in a care home and was paying for her care until she reached the financial threshold. The Council started paying for Ms X’s care from this date. Ms X did not know the Council were paying for her care. The Care Home continued to charge Ms X for her care for three months which she paid. The Care Home was paid twice and refused to repay Ms X. This has caused her financial injustice and has also caused stress for both Ms X and her son.

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What I have and have not investigated

2. Since bringing the complaint, the Care Home refunded Ms X some fees she overpaid. Mr Y told me he is happy they had received this money but did not know how it had been calculated or why his mother had not received the full amount. This is Mr Y’s main concern and the only thing I have investigated.
3. I have not investigated how threshold was calculated, why the Care Home took the fees twice or why it delayed refunding Ms X. Neither have I considered the relationship between the Council and the Care Home.

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The Ombudsman’s role and powers

4. 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)
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)

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How I considered this complaint

6. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Care Act 2014, The Care and Support (Charging and Assessment of Resources) Regulations 2014, and The Care and Support Statutory Guidance 2014 (Care Act 2014).
7. Mr Y, the Council and the Care Home had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation

8. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
9. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
10. 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 residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

The Council’s Adult Social Care Complaint Policy

11. The Council provided me a copy of its Adult Social Care Complaint Policy. It says the customer care team acknowledges receipt of the complaint and registers it on the database within three days and sends the complaint to the relevant service manager.
12. Where necessary, the investigation manager will discuss the complaint with the complainant to listen to their account, ask questions for clarification and offer empathy. This takes places within ten days.
13. The investigation manager considers the complaint within five and 15 days and compiles a full report and initial response letter which they send to the customer care manager. They develop an action plan for required follow up actions.
14. A response is sent to the complainant within 25 working days of receipt.
15. In more complicated cases, it might not be possible to complete the investigation within 25 days and an extension may need to be agreed.
16. The complainant can ask for a senior management review. The customer care manager will agree with the complainant the issues which have not been addressed and discuss the next steps with the head of service and confirm this with the complainant, this may include the offer of a meeting or a visit.
17. The senior manager will write to the complainant explaining the reasons for any decisions and whether the complaint has been upheld. It will explain the next stage is for the complainant to contact the Ombudsman. The senior manager should complete the review within three months.

What happened

18. I have summarised below the key events; this is not intended to be a detailed account.
19. Ms X lives in a Care Home managed by Bupa. Her son, Mr Y helps Ms X organise her finances and has brought this complaint on her behalf.
20. Ms X self-funded when she first moved into the Care Home. Her savings decreased and she was approaching the threshold towards the end of 2021.
21. The Council posted financial assessment forms to Mr Y at the beginning of January 2022. He completed and returned these to the Council within a few days.
22. In late January the Council told Mr Y it had reached a suggested resolution on the financial assessment but did not provide any details. Mr Y asked for clarification but received a stock reply. He asked again in March and the Council said the case was a priority but did not provide any further information.
23. During this time, the Council’s brokerage team contacted the Care Home to negotiate fees from the date Ms X passed threshold. The Council said it would pay the fees after Ms X passed threshold. The Council was calculating the date of threshold. In the middle of May the Council told Mr Y that Ms X passed threshold on 17 January 2022.
24. The Care Home continued to charge Ms X for her care. She paid in January, February, and March. Ms X did not make any further payments.
25. The Council also paid the Care Home fees for the period starting after Ms X passed threshold. This resulted in the Care Home receiving two sets of payments.
26. Mr Y asked the Care Home to refund Ms X for the period it had received double payments. It refused.
27. Mr Y emailed the Council and the Care Home in November 2022 expressing his dissatisfaction. He received a response from the Care Home on 2 November 2022. A Manager at the Council spoke to Mr X on the telephone in December 2022, they apologised for the distress caused and discussed the fees and a refund. This was followed up in a letter dated 26 January 2023. The Council said it received a request from Mr Y for a senior management review the same day.
28. Mr X complained to the Ombudsman in February 2023.
29. In February 2023, Bupa refunded Ms X just over £14,000. In conversation with me in May, Mr Y said he is happy his mother received this money back but does not think it is enough. He expected Ms X to receive around £17,000 refunded, he considers his mother is still owed roughly £3,000. This is what he says is the total amount his mother paid in Care Home fees for the three-month period from January to March. Mr Y said he received an email from Bupa saying it had made the payment but did not explain what the money was for or how the figure was made up.
30. The Council completed a senior management investigation on 21 April 2023 and sent this to Mr Y by email. It confirmed Mrs X’s account was credited with the refund on 14 February and apologised for the delay. It confirmed there was no top-up fee applicable to Ms X’s package of care. It referred Mr Y to the Ombudsman if he was not satisfied with the response.
31. In June, the Council responded to my enquiries, the Council explained Ms Y paid a total of around £14,000 to cover the period from 17 January (when she passed threshold) to the end of March. This is the figure that Bupa have now refunded.

Analysis

The Care Home fees calculated by the Council

32. In response to my enquires, the Council said Ms X paid £1351 per week in Care Home fees before she passed threshold. I have calculated this as £193 per day.
33. Ms X passed the threshold on 17 January 2022. From this point on, she should not have been paying the full amount of care fees.
34. Bupa continued to charge Ms X after she passed the threshold on 17 January. Ms X continued to pay the fees until 31 March 2022. This is a period of 74 days (from 17 January to 31 March 2022).
35. 74 days of care at £193 per day is a total of £14,282. This is the amount that Bupa refunded Ms X.

The Care Home fees as understood by Mr Y

36. In conversation with me, Mr Y said he believed his mother should be refunded £17,370 as this is the amount she paid in three instalments across January, February and March 2022.
37. This is for 90 days. Charged at £193 a day is £17,370. This is the figure Mr Y considers should be repaid to Ms X.

Understanding the calculations

38. The figure that Bupa repaid to Ms X is for the precise period from when Ms X passed the threshold on 17 January to when she stopped paying the fees. Bupa calculated the amount exactly per day.
39. I can understand why Mr Y believes the figure to be around £17,000 as this is what Ms X has paid out over three months. However, the amount to be refunded is only from when Ms X passed the threshold on the 17 January. For the period 1 January to 16 January, Ms X was liable to pay her own fees. This amounts to £3,088. This is the difference in amount between what Bupa refunded and what Mr Y believes should have been refunded.
40. The money that Bupa has refunded Ms X is correct. This is the exact amount, worked out at a daily rate that Ms X overpaid. Bupa have not under refunded Ms X. It is not at fault.
41. At the time Bupa provided the refund it did not explain how the amount was calculated. This would have helped Ms X and Mr Y understand the difference in the amount refunded and the amount they expected to be refunded and caused less stress. It would have saved Mr Y time and trouble in bringing a complaint to the Ombudsman. This is fault.

Delay in responding to the issue

42. This matter was unresolved for almost a year before Mr Y brought the complaint. Both Bupa and the Council had plenty of time to address the issue and sort the repayments. This is delay, this is fault.
43. Mr X asked for a senior manager review of his complaint. As set out above, this can take three months to resolve. The Council completed the senior manager review within the timescales set. The Council is not at fault.
44. In conversation with Mr X in May, he told me he had not received the Council’s final complaint response and he considered this was still outstanding. The Council has provided me with a copy of its response from April and evidence it was sent. The Council is not at fault.
45. The Council said it had not completed its complaint process before Mr X brought his complaint to the Ombudsman. This is correct. Mr X should have waited for the senior manager response. I can understand why he did not considering the length of time the matter had been continuing, the lack of communication from the Council and the amount of money he believed his mother was still owed.
46. The Council did not inform the Ombudsman the complaint was under senior management review until it responded to the draft decision in July. The Council knew the Ombudsman was investigating and could have raised this earlier. Had it have done so; the Ombudsman may have considered it was a premature complaint. Upon assessing the case, the Ombudsman noted both Bupa and the Council responded to the complaint. This satisfied the Ombudsman’s assessment code. Even if this was not the case, the Ombudsman has discretion to override the normal requirement for completion of the Council’s complaint procedure if it considers it is justified.

Agreed action

47. 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 home, I have made recommendations to the Council.
48. Within four weeks of my final decision, the Council should apologise to Ms X and Mr Y for Bupa not explaining how it calculated the refund when it made the payment.
49. The Council should provide us with evidence it has complied with the above actions.

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Final decision

50. I have completed my investigation. The Care Home properly refunded Ms X the fees but is at fault for not explaining how these were calculated.

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Investigator's decision on behalf of the Ombudsman