Summary: Mr H complains on behalf of his mother that a care provider has not refunded fees they paid it for a period a council subsequently also paid it for. We uphold the complaint, as the care provider has not responded to Mr H’s contacts. But the care provider is in administration so cannot provide the remedy we recommended.

The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused a significant injustice or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(3 and 4) as amended)
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), 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)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

7. I considered evidence provided by Mr H and a council as well as relevant law, policy and guidance.
8. Mr H and the care provider 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

Legal and administrative background

Funding for care home fees

9. Funding for residential social care is means tested. A council might pay towards the cost of social care if a resident has savings below an upper capital limit. People with savings or income above the upper thresholds must fund their own care.
10. When a self-funder is in a care home and their money falls below the threshold they can apply to the council for funding.
11. If the council completes its assessment within a reasonable timeframe, the provider should refund in full any monies paid (councils will usually backdate any monies owing to the date the referral was made).

What happened

12. In the spring 2023 Mrs H moved to a care home run by the care provider. From then, Mrs H’s family paid her fees to the care home via a bank transfer.
13. Mrs H’s family first approached the local council later in 2023 to ask about Mrs H’s funding options. Mrs H’s family then considered their options and in February 2024 signed an agreement with the council.
14. In early March, the care home invoiced the council for fees back to when the council became liable. The council has confirmed it made the payment (of over seven months’ fees). It says it would have expected the care provider, on receipt of its payment, to refund Mrs H the fees she had already paid for the same period.
15. Mr H says the care provider did not refund the payments the family had made for Mrs H. In May he wrote to the care provider asking for a refund. He copied the council into the email, asking it to delay making further payments until the situation was resolved.
16. The council’s finance team sought advice. It contacted the care provider about Mrs H’s family’s concerns.
17. In August Mr H complained to the care provider. He copied the council in. On receiving no response, at the end of the month, he complained to the care provider. He also complained to the Ombudsman.
18. We initially contacted the council about its role in the issues under complaint. It advised that, on receiving our enquiries, it emailed Chanctonbury Care seeking its position on this and hoping for a confirmation of a payment date. It says it chased this enquiry several times each week. But it was told in early March the care provider had gone into administration. Mr H has also confirmed this.
19. In response to my draft decision, the administrators contacted us. They advised it noted Mrs H had an unsecured claim as part of the administration process. But as the company was insolvent, and in administration, it was unable to refund the monies to Mrs H.

Analysis

20. Mrs H had a contract with the care provider. So she had a legal remedy through the courts to resolve the dispute. That is an alternative remedy (see paragraph 4). But, given the time they have been seeking payment and that the care provider has now gone into administration, I exercised our discretion to investigate the complaint.
21. The Ombudsman cannot make findings of law on contract terms – only a court can do this. But we can investigate whether there has been fault by a care provider, based on an ordinary reading of the law and contract terms.
22. The council has confirmed it has paid fees for a period. Mr H says Mrs H had already paid fees for the same period. I would have expected the care provider to have either refunded those fees or provided a detailed explanation of why it did not agree that some or all of the claimed refund was due.
23. The care provider did neither. So my decision is there was fault in the care provider not responding to contacts from Mr H and other members of the family, about their request for a repayment of fees.

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Recommended action

24. I recommend that, within a month of my final decision, the care provider contact Mr H. It should either:
• refund the fees; or
• provide a detailed explanation of why it does not agree that some, or all, of the claimed fee refund is due.
25. These recommendations will not be fulfilled, as the care provider is insolvent and in administration. But we have published this decision to put the findings of our investigation, and our decision about what went wrong, in the public domain.

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Final decision

26. My decision is there was fault by the care provider that caused Mrs H an injustice. We uphold the complaint and find fault which has caused Mrs H an injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman