Summary: Mr X complained about an invoice which incorrectly backdated charges for his stepfather’s stay at a care home and delay in the Council’s complaint process. We have found delay and poor communication causing distress but consider the Council’s proposed action of an apology, symbolic payment and liaison with the care home to obtain a refund of fees provides a suitable remedy.

The complaint

1. The complainant, Mr X, complains about an invoice which incorrectly backdated charges for his stepfather’s stay at a care home. Mr X says this caused distress and inconvenience which was made worse due to delay in the Council’s complaint process.

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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 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)
3. 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. (section 26A or 34C, Local Government Act 1974)
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 as well as relevant law, policy and guidance.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Background and legislation

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. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt a permanent admission is required. The person’s stay should be unlikely to exceed 52 weeks, or in exceptional circumstances, unlikely to substantially exceed 52 weeks. A decision to treat a person as a temporary resident must be agreed with the person and/or their representative and written into their care plan.
11. A council can choose whether to charge a person where it is arranging to meet their needs. In the case of a short-term resident in a care home, the council has discretion to assess and charge as if the person were having their needs met other than by providing accommodation in a care home. Once a council has decided to charge a person, and it has been agreed they are a temporary resident, it must complete the financial assessment in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance.

Key events

12. The following is a summary of key events. It does not include everything that happened.
13. Mr X complained to the Council on 15 December 2023 about an invoice it had sent him dated 28 November 2023 for £15,646.43 requiring immediate payment. The invoice was for Mr Z’s care up to 28 November 2023. Mr X explained he had been paying a weekly charge of £675 every four weeks. Mr X noted the weekly charge had been increased to £1,400 without any notice and backdated. Mr X also complained about a payment he had been required to make directly to the care home for the period 30 October 2023 to 30 November 2023. Mr X said he had only recently received the contract from the care home with a start date of 30 October 2023.
14. The Council sent a holding email to Mr X on 7 February 2024. Mr X emailed the Council on 27 February to chase a reply and advised the matter was causing anxiety. The Council sent a further holding reply the following day.
15. The Council provided a response to Mr X at the first stage of its complaint procedure on 8 March. The Council upheld Mr X’s complaint and noted there had been a delay in changing Mr Z’s provision from short term respite placement to a long-term placement. The Council explained the cost of the two provisions was different which had caused the backdated fees. The Council explained the decision to change the placement from short-term respite to a long-term placement was made on 14 March 2023 but due to a communication failure there was a delay in advising the care provider of this change. Although the short-term placement ended on 7 June 2023 it was not updated on the system until October 2023. The increase to the £675 weekly charge had resulted in a backdated increase in care fees. The Council waived £12,946.43 of the fees.
16. Mr X responded to the Council on 19 March to say he remained unhappy as the Council had used the wrong figure for the November 2023 invoice and he wanted confirmation there were no outstanding fees owed to the Council. Mr X said it was unfair he had paid a backdated amount of £6,400 to the care provider directly. Mr X considered the Council should have paid the care home up to 20 November when the financial assessment was completed. Mr X sought the return of about £3,500 to Mr Z.
17. The Council sent an acknowledgement to Mr X on 19 March. The Council confirmed it was reviewing the complaint on 10 April. The Council sent holding responses to Mr X in May, June and July with apologies for the delay.
18. The Council provided a substantive response to Mr X on 31 July and apologised for the delay. The Council confirmed it had adjusted the date the self-funding period started to 21 November 2023 after the date the financial assessment was completed. This increased the amount of fees to be waived to £14,821.43. The Council confirmed it would raise a new invoice at the weekly rate of £675 for the period 30 October 2023 to 19 November 2023 totalling £2,025.
19. Mr X complained to the Ombudsman. Mr X said he wanted confirmation there was no further monies owed to the Council and wanted a refund of the fees he had paid directly to the care home for the period 30 October 2023 to 30 November 2023.
20. The Council provided some preliminary information to the Ombudsman that stated the charges for care provided to Mr Z at the care home had been written off for the period 7 June 2023 to 20 November 2023 and it had paid the care home for this period. However, Mr X has confirmed he also paid an invoice dated 30 October 2023 from the care provider for the period 30 October to 30 November 2023 for £6,400. Mr X raised the issue of having to pay the care provider from 30 October 2023 in his original complaint of 15 December 2023.
21. Mr X does not consider it is reasonable for him to try and recover this money directly from the care provider given the passage of time and as he did not receive a final response to his complaint until 31 July 2024. Mr X says he had no option but to pay the care provider directly at the time to avoid an issue with his stepfather’s placement.
22. The Council confirmed its practice at the time was to advise the payer to contact the provider and request a refund if an overpayment had been made.
23. Sadly, Mr Z died in February 2025.
24. The Council has told the Ombudsman it will complete a review of this complaint to identify the missed opportunities in providing a meaningful update on the Council’s progress with its complaint progress to Mr X and will share the learnings to ensure complainants are reassured on the complaint investigation progress and informed of the reasons for the delay.
25. The Council has also accepted it has a responsibility for the actions of a provider when it arranges or commissions care services and should consider the provider’s actions as if they were its own. The Council has confirmed it will amend its practice to ensure where a refund to a resident is due, it will liaise with the provider to ensure payment is made on a timely basis. The Council will prepare a briefing to all relevant teams to set out the Council’s responsibility when an overpayment of fees has been made due to backdated payments to providers until the new process is confirmed and embedded in practice.
26. In relation to Mr X, the Council has confirmed it will liaise with the provider to ensure a refund of overpaid fees is made as a matter of urgency.

Analysis

27. The Council had already upheld Mr X’s complaint about the invoice raised on 28 November 2023 for £15,646.43. The invoice included £12,946.43 in backdated care fees and a brought forward balance of £2,700 from a previous invoice (totalling £15,646.43). The Council initially agreed to waive the difference between the long-term care rate of £1,300 and the short-term care rate of £675 (a difference of £625) for the period 7 June to 29 October 2023. This provided the figure of £12,946.43. The Council subsequently agreed to extend this approach to the period 30 October 2023 to the date of the financial assessment on 20 November 2023 and waive an additional amount of £1,875. This meant an invoice was raised to Mr X for £2,025 (three weeks at £675).
28. I am satisfied that the invoice Mr X originally received has largely been waived and I do not consider there are grounds to seek any further fee reduction in these circumstances. Our position is that the Council is entitled to charge for care. The issue here is that there was a delay in sending the invoice. This does not mean we would recommend a further waiver of fees a council was entitled to charge.
29. However, I am satisfied that the receipt of such a large and unexpected invoice would have caused Mr X distress. I also note Mr X had to further pursue the matter in order to obtain the waiver of fees.
30. Mr X complained to the Council on 15 December 2023 but did not receive a substantive response until 8 March 2024 despite advising the Council of the anxiety the matter was causing him. Mr X sought to escalate his complaint on 19 March 2024 but did not receive a substantive response despite several reminders and holding responses until 31 July 2024. This is a significant delay and was fault by the Council.
31. In responding to the Ombudsman’s enquiries, the Council acknowledged it did not handle Mr X’s complaints and concerns well and accepted the significant delays and miscommunication would have caused him unnecessary frustration and uncertainty. The Council has said it would like to offer an apology to Mr X and make a symbolic payment to him of £350 to recognise the impact this had on him and his family. The Ombudsman would welcome this action which is broadly in line with our guidance on remedies. However, I do not consider it fully reflects the element of distress outlined above and so I recommend a higher sum below.
32. I am satisfied the actions proposed by the Council as set above are enough to minimise the risk of recurrence in other cases.

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Action

33. Within one month of my final decision the Council will:
1. write to Mr X to apologise for the delays and poor communication around the change to Mr Z’s care fees;
2. pay Mr X £500 to acknowledge the distress caused by the receipt of the large and unexpected invoice and his avoidable frustration due to the Council’s complaint handling;
3. provide an update to Mr X about the expected timescale for a refund of the overpaid fees; and
4. provide a copy of the briefing note about overpaid care fees and the outcome of the complaint review to the Ombudsman.
34. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
35. The Council should provide us with evidence it has complied with the above actions.

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Decision

36. I find fault causing injustice. The Council has agreed actions to remedy injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman