Summary: Mr X complained that the Council’s commissioned care provider misled him about the fees for his mother’s care. The Council’s care provider has subsequently restored the original fee level. The Council has also agreed to offer Mr X a symbolic payment in recognition of the frustration he was caused, and the time and trouble caused by its actions.

The complaint

1. Mr X (the complainant) says the Council’s care provider, Optalis, initially agreed a rate for Mrs X’s care but then attempted to impose higher charges. Mr X says he felt bullied and harassed by the correspondence from Optalis. The Council and Optalis subsequently agreed to honour the original fee quoted.

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The Ombudsman’s role and powers

2. 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 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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)

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How I considered this complaint

5. I considered evidence provided by Mr X and the Council and Optalis as well as relevant law, policy and guidance.
6. All parties had an opportunity to comment on my draft decision and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

7. 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.
8. 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.
9. 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.
10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
11. Regulation 19 says, “Where a service user will be responsible for paying the costs of their care or treatment (either in full or partially), the registered person must provide a statement to the service user, or to a person acting on the service user’s behalf—(a) specifying the terms and conditions in respect of the services to be provided to the service user, including as to the amount and method of payment of fees; and(b) including, where applicable, the form of contract for the provision of services by the service provider.

The statement referred to in paragraph (1) must be—

(a) in writing; and

(b) as far as reasonably practicable, provided prior to the commencement of the services to which the statement relates”

12. The Competition and Markets Authority (CMA) produces guidance for care homes. It says, “Upfront information should, in principle, be provided to all prospective residents and their representatives, regardless of the resident’s funding arrangements. Ultimately, certain information (for example, information about the indicative weekly fees you charge and any upfront payments) may only be relevant for self-funders.” It goes on “You should also be aware that short stay/respite residents may transition into permanent placements. You must ensure that these residents and their representatives are provided with timely upfront information about permanent placements (eg your weekly fees, requirements for upfront payments and other key information relating to permanent residency)”.

What happened

13. Mrs X first went into the care home on a respite placement in December 2023. Optalis had only recently taken over the care home which had previously had a poor rating with the CQC. The home was not quite ready to accept more residents but agreed in view of her circumstances to take Mrs X, who required an emergency admission. Self-funder rates had not been published at this time as the care provider was still finalising its arrangements.
14. Mrs X subsequently sold her house and from July 2024 became a self-funding permanent resident.
15. Mr X, who has power of attorney for his mother’s affairs, had an exchange of emails with the then regional manager in February 2024 in which the regional manager told him what the self-funding fee would be for Mrs X.
16. In April 2024 the director of Optalis emailed Mr X and said there had been an error in what he had been told, and the rate agreed had not been the correct rate for a self-funding resident. She said the weekly rate going forward from the point at which Mrs X’s 12-week property disregard ended would be higher.
17. Mr X did not accept the new rate and complained to the care provider. He said the care provider was in breach of the CMA guidance. He said he considered his mother was ‘trapped’ in the home, as she had settled well after being there 6 months: he also said the emails he had received from the company saying she had settled and it was hoped they could continue to support her, were threatening. He met the Council’s head of provider services in May.
18. The head of provider services wrote to Mr X at the end of May. He apologised for the error which had taken place and upheld Mr X’s complaint that they had been in breach of the CMA guidance. He also upheld a complaint about the communications from some of Optalis’ staff.
19. Mr X remained unhappy about the imposition of a fee and contract which he said had not been agreed, in place of the contract which had been made by the previous regional director in February. The Council’s Chief Executive responded and agreed to investigate further.
20. In June Mr X complained to the Ombudsman.
21. In July the Council wrote again to Mr X. It agreed to honour the original quoted weekly rate on an ex-gratia basis. It said, “This fee rate will apply from 2 July 2024 (being the end of the 12-week property disregard period) until April 2025 or until such time as your mother’s assessed care needs are reassessed and found to have increased, if earlier.” It acknowledged the matter had taken a long time to resolve, but he denied there had been any note of harassment or bullying by staff in their correspondence. It also noted the points made by Mr X in respect of the CMA guidance and said steps were being taken to address those points.

Analysis

22. The care provider was wrong to try and alter the fee rate without the proper advance information as required by the regulations and by the CMA guidance, although there were unusual circumstances here.
23. The Council has now agreed to honour the original fee rate but the error on the part of the commissioned care provider and its failure to set out clearly the basis of the fee payments caused some months of frustration, worry and inconvenience to Mr X.

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Action

24. The Council says Optalis is already taking steps to ensure its actions are in line with the CMA guidance;
25. Within one month of my final decision the Council will offer a symbolic payment of £300 to Mr X in recognition of the time, trouble and frustration caused by the initial error and the delay in rectifying the matter.
26. The Council should provide us with evidence it has complied with the above actions.

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Decision

27. I have completed this investigation. I find fault causing injustice which will be remedied by completion of the recommendations at paragraph 25 above.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman