Summary: Miss X complains about the quality of care her late father received at Kiwi House Care Home, where the Council placed him. She also complains about the Council’s handling of the charges for her father’s care. The only fault has been to charge for the father’s care after 20 November 2020, when it was clear he would not be returning to Kiwi House. The Council needs to waive any charges after that date.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains about the quality of care her late father received at Kiwi House Care Home (Kiwi House), where the Council placed him. She also complains:
• the Council wrongly valued her father’s home at £100,000 when that has never been the case;
• the Council charged interest on her father’s deferred payments 56 days after he died, despite COVID-19 making it difficult for them to sell the property;
• the Council failed to explain the Land Registry charge properly before they signed the deferred payment agreement; and
• a hospital nurse wrongly told them her father would not be eligible for NHS Continuing Healthcare if he moved to Kiwi House.

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What I have investigated

2. I have investigated the actions of the Council and its care provider. I explain at the end of this statement why I have not investigated the actions of the NHS nurse.

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The Ombudsman’s role and powers

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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether councils and care providers followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. 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)

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How I considered this complaint

7. I have:
• considered the complaint and the documents provided by Miss X;
• discussed the complaint with Miss X;
• considered the comments and documents the Council has provided in response to our enquiries;
• considered the Ombudsman’s guidance on remedies; and
• shared a draft of this statement with Miss X and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

8. Miss X’s father, Mr Y, entered residential care on a permanent basis on 3 November 2017. He had dementia and other age-related medical conditions.

The deferred payment agreement (DPA)

9. One of Mr Y’s daughters (with power of attorney for property and affairs) signed a DPA on his behalf on 26 April 2019, agreeing:
• the DPA came into effect from 26 January 2018;
• to pay the full amount of the deferred contribution a day after the “exempt period” (56 days after Mr Y’s death);
• interest may be charged on the accrued debt from the day after the exempt period ended;
• she had been advised to seek independent advice;
• she had received a guide to charges for residential accommodation for people with property;
• to provide any documentation needed for the legal charge.

Mr Y’s care at Kiwi House in November 2020

10. Kiwi House kept records of the care provided for Mr Y. I summarise the key contents from November 2020 below:
• 1 November – Mr Y needed a lot of help with personal care. His temperature was 36.5 C in the evening.
• 2 November – Mr Y needed a lot of help with personal care. His temperature was 35.8 C in the morning.
• 3 November – Mr Y needed help with most tasks. His temperature was 36.5 C in the afternoon and 36.3 C in the evening.
• 4 November – Mr Y needed help most of the time with personal care. His temperature was 36.8 C in the afternoon.
• 5 November – A Nurse Practitioner prescribed antibiotics to treat a suspected urinary tract infection, which would also treat a chest infection “just in case”.
• 6 November – Mr Y was sleepy and needed help with eating and drinking. His temperature was 36.6 C in the morning. He started taking the antibiotics.
• 7 November – Mr Y was very lethargic and needed lots of support. His temperature was 36.6 C in the morning and 36.4 C in the afternoon. Kiwi House spoke to Mr Y’s family.
• 8 November – Mr Y needed a lot of help with personal care and mobility. His temperature was 36.4 C in the afternoon. Kiwi House spoke to Mr Y’s family.
• 9 November – Mr Y remained in bed due to poor mobility and not feeling “too good”. His temperature was 36.6 C in the evening.
• 10 November – Mr Y’s temperature was 36.6 C in the morning and 36.4 C in the evening. He needed a lot of encouragement to eat and drink.
• 11 November – Mr Y’s temperature was 36.4 C overnight, 36.5 C in the morning and 35.8 C in the afternoon. He was lethargic and had a cough. His oxygen level was 92%. He was tested for COVID-19.
• 12 November – Mr Y was coughing and fatigued. His temperature was 36.4 C in the morning. Kiwi House told Mr Y’s family it was waiting for the COVID-19 test result and would consult a GP again if the result was negative. It noted the need to encourage Mr Y to take fluids, as he had been declining food and drink.
• 13 November – Mr Y’s appetite remained poor. His temperature was 36.3 C in the morning and 36.6 C in the afternoon. Kiwi House spoke to Mr Y’s family
• 14 November – Mr Y was very sweaty and warm. His temperature was 36.6 C in the morning and 36.4 C in the evening. He received a positive test result for COVID-19. Kiwi House spoke to Mr Y’s family.
• 15 November – Mr Y ate and drank little. His temperature was 36.5 C in the morning and 36.6 C in the evening. Kiwi House spoke to Mr Y’s family.
• 16 November – Mr Y appeared chesty. His temperature was 36.7 C in the morning and 36.6 C at lunchtime. Over the telephone, a Doctor advised calling an ambulance if Mr Y’s breathing changed. Later in the afternoon, an Advanced Nurse Practitioner from the out of hours service visited. Mr Y’s temperature was 39.3 C. The Advanced Nurse Practitioner said Mr Y had moved to a critical point, having sepsis with COVID-19, and was now on end-of-life care but could be admitted to hospital if the family wanted this. The Advanced Nurse Practitioner spoke to Miss X. Two hours later paramedics took Mr Y to hospital. He had a temperature of 39.4 C.
• 17 November – The hospital told Kiwi House Mr Y was not responding to treatment.
• 18 November – Mr Y’s family told Kiwi House he had pneumonia, not sepsis. Kiwi House said Mr Y could return there if he was on end-of-life care and the family would be able to visit him.
• 20 November – As Mr Y had not responded to treatment, the hospital stopped his medication and made him comfortable. He was to remain in hospital, rather than return to Kiwi House.
• 24 November - Mr Y died in hospital.

Miss X’s complaint

11. When the Council responded to Miss X’s complaint on 24 March 2021, it said:
• Although some areas of its recording could have been improved, there was nothing to suggest Kiwi House had not looked after Mr Y properly or failed to seek medical advice when necessary.
• When it wrote on 27 November 2017 about the charges for Mr Y’s care, it asked for an independent valuation for his property, but never received one. It therefore based the valuation on an average for similar properties in the area. It amended Mr Y’s records when Miss X told the Council about the lower valuation in May 2019;
• It had not been told Mr Y would not be returning to Kiwi House from hospital. It continued to charge Mr Y as the Council had to pay for his place at Kiwi House until he died.
• Under the deferred payment agreement, it provided an interest free loan during a person’s lifetime. The agreement provided for interest to be paid after 56 days following the person’s death.
• In its letter of 27 November 2017, it had advised taking independent advice about the deferred payment agreement. Its guide to charges for residential accommodation for people with property suggested taking independent advice.

Is there evidence of fault by the Council which caused injustice?

Mr Y’s care in November 2020

12. The evidence does not support the claim that Kiwi House failed to look after Mr Y properly in November 2020. It is clear that he was already frail when he caught COVID-19. Mr Y’s appetite decreased and he was reluctant to eat or drink. Kiwi House encouraged him but could not make him eat or drink. His condition remained fairly stable until 16 November, when it declined rapidly. This is not unusual and does not, in itself, mean Kiwi House was not looking after Mr Y properly.

Valuation of Mr Y’s home

13. The Council has explained how it first valued Mr Y’s home. There is no fault in using an average based on the value of similar properties in the same area. Besides, the Council amended the valuation when his family provided evidence this was too high.

Charging for Mr Y’s care after he went to hospital

14. I cannot find fault with the Council for charging for Mr Y’s care after he went into hospital, as he could have returned to Kiwi House if that is what his family had wanted. However, by 20 November it had been agreed Mr Y would not return to Kiwi House and he would die in hospital, so his placement should have ended then. It appears Kiwi House did not pass this information on to the Council. That was fault for which the Council is accountable (see paragraph 6 above).

Failure to explain the Land Registry charge

15. The Council advised Mr Y’s daughter to seek independent advice, by letter and in a leaflet. She confirmed receipt of the leaflet and that she had been advised to seek independent advice when she signed the deferred payment agreement. There is therefore no evidence of fault by the Council.

Charging interest on the deferred payments after 56 days

16. Under the Care and Support Statutory Guidance, councils can charge interest on deferred payments from the start of a deferred payment agreement. The Council has exercised its discretion not to charge interest until 56 days after someone has died. There are no grounds for me to ask the Council to do more than that.

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Agreed action

17. 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 Kiwi House, I have made recommendations to the Council.
18. I recommended the Council within four weeks waives any charges after 20 November 2020. The Council has agreed to do this.

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Final decision

19. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

Parts of the complaint I did not investigate

20. I have not investigated the complaint about the hospital nurse, as complaints about the NHS and its staff are within the remit of the Parliamentary and Health Service Ombudsman.

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Investigator's decision on behalf of the Ombudsman