The Ombudsman's final decision:
Summary: The Care Provider, acting for the Council was at fault as there was a top up fee for the late Mrs Y’s care with no third party top up agreement being in place. The Council will repay the top up fee. The Care Provider’s complaint handling was not in line with our expected standards. It will apologise and take action set out in this statement to prevent recurrence.
- Mrs X complained about her late mother Mrs Y’s care in Birdscroft Nursing Home (the Care Home). Surrey County Council (the Council) commissioned Mrs Y’s placement between March and October 2020. From October 2020 to April 2022, Mrs Y was a self-funder. Mrs X complained St Dominic’s Ltd, the Care Provider, acting on behalf of the Council:
- charged Mrs Y £9150 when the full cost of her care should have been covered by government emergency Covid-19 funding
- Administered a blood thinning medicine when a hospital doctor had stopped it before Mrs Y was admitted to the Care Home
- Did not provide adequate nail care or cleaning of Mrs Y’s bathroom.
- Mrs X also complained the Care Provider:
- Did not provide an adequate complaint response, instead issued a letter threatening legal action and failed to signpost the LGSCO
- failed to provide copies of records
- Failed to share a copy of the RESPECT (Recommended Summary Plan for Emergency Care and Treatment) form
- Arranged a wheelchair assessment without first arranging an OT assessment.
- Mrs X said this caused her avoidable distress and the estate a financial loss.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- 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)
- Between March and October 2020, Mrs Y’s care was funded by the Council under powers and duties in national discharge guidance and the Care Act 2014. We can investigate the Care Provider’s actions as they were on behalf of the Council.
- 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)
- 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
- After October 2020, Mrs Y funded her care privately. We can investigate the Care Provider’s actions under the law set out in paragraph eight.
- We provide a free service, but we use public money carefully. We may decide not to start or continue with an investigation if we believe:
- the action has not caused injustice to the person who complained, or
- the injustice is not significant enough to justify our involvement, or
- it is unlikely we could add to any previous investigation by the care provider, or
- there is another body better placed to consider this complaint.
(Local Government Act 1974, sections 34B(8) and (9))
- We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
- 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)
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
What I have and have not investigated
- I have investigated complaints 1 (a), (c) and complaint 2 (a). I have not investigated complaints 1(b) or complaints 2(b), (c) and (d) because:
- There is not enough evidence of injustice to justify further investigation of complaint 1(b). The Care Provider’s records indicate Mrs X discussed Mrs Y’s medicines in a three-way call with the GP and the Care Home’s registered nurse in November 2020. Mrs X said during the call that a doctor at the hospital had stopped a blood thinning medicine. The GP said Mrs Y needed to remain on the medicine to prevent blood clots which may lead to a further stroke. It would appear therefore that there was no fault or injustice in the Care Home administering the medicine from the date of Mrs Y’s admission because the hospital hadn’t stopped it whatever was said to Mrs X. Any complaint about the decision to continue with the medicine would be for the NHS and not the Council or Care Provider because they were not responsible for prescribing medicine.
- The information commissioner deals with complaints about data. Mrs X can raise complaint 2(b) with the information commissioner which is the expert independent body for complaints about access to information and is a better body to consider this issue.
- Mrs Y’s GP or an NHS clinician would have completed the RESPECT form. The LGSCO has no power to investigate complaints about the actions of GPs or health clinicians. Mrs X needs to use the NHS complaint procedure for complaint 2(c).
- There is not enough injustice to justify investigation of complaint 2 (d). Mrs Y is likely to have suffered temporary discomfort during the wheelchair assessment, but she has since passed away. There is no significant injustice to Mrs X.
- Complaint 1(a) is not late because Mrs X was not aware Mrs Y had been charged a top-up between March and October 2020 until she saw invoices when dealing with Mrs Y’s estate. In April 2022. Her complaint to us was within 12 months of becoming aware of the matter.
How I considered this complaint
- I considered the complaint to us, the Care Provider’s response to the complaint, photos of Mrs Y’s hand, a chair and toilet and documents described in this statement. I discussed the complaint with Mrs X.
- Mrs X, the Council and the Care Provider had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
Relevant law and guidance
- NHS guidance in force from 19 March until August 2020 “COVID-19 Hospital Discharge Service Requirements” applied to all NHS and social care providers in England. It aimed to free up acute hospital beds to treat the most seriously unwell patients during the first wave of the pandemic. It was in force until August 2020. The guidance explained (paragraph 1.6) that the NHS would fully fund the cost of new out of hospital health and social care packages for people who would otherwise be admitted or have to remain in hospital.
- Councils arrange care home placements under powers and duties in the Care Act 2014. People who have assets over £23,250 are required to fund their own care and where there is someone able to make the arrangements for the placement, councils do not usually get involved. The person is known as a self-funder.
- Guidance says councils must place an adult in their preferred care home where the home costs more than the Council’s usual rate if there is another person willing and able to pay the extra cost. This extra cost is known as a ‘third party top up’ payment. Guidance says a council must enter into a written agreement with the payer. The agreement must include:
- The additional amount payable
- The amount the council is paying
- Frequency of payments
- To whom the payments are to be made
- Provision for reviewing the agreement
- A statement of the consequences of ceasing payment
- A statement on the effect of any increase in charges
- A statement on the effect of any changes in the financial circumstances of the top-up payer. (Care and Support Statutory Guidance, Annex A, paragraph 23)
- Regulation 16 of the Health and Social Care (Regulated Activities) Regulations 2014 says care providers must investigate any complaints and must take necessary and proportionate action in response to any failure identified.
- In March 2020, Mrs Y was in hospital following a stroke. She was discharged from hospital to the Care Home at the end of March 2020. Mrs Y’s placement was made through emergency discharge arrangements with the Council in place during the first national lockdown.
- A social worker and Mrs Y’s son spoke in the middle of March about funding. The son said Mrs Y had savings of £150,000. The son said the family were in a position to pay a third party top up.
- A social worker noted she had spoken with the Care Home’s manager. The latter reported she had spoken to Mrs Y’s son who had agreed to pay a third-party top up. The son had asked for a ‘private room’. The social worker emailed the Care Home’s manager after to say the Council would pay £890.56 (including an NHS nursing payment) and the family would pay a top up of £309.44. The social worker confirmed the funding in an email to the son. The son emailed the social worker saying “we will pay the top-up fee to Birdscroft Nursing Home (£309.44)”
- The Council had a spot contract with the Care Provider for Mrs Y’s placement. The papers indicate the contract started in March 2020. It was signed and dated retrospectively in November 2020 by a council officer and the Care Home’s manager. The contract says:
- Standard weekly charge: £890.56 COVID-19 funding
- Additional sum to reflect individual needs: nil
- Total cost: £890.56
- The contact goes on to say:
- Individual contribution: nil
- Third party contribution: nil.
- Emails between Mrs Y’s son and the Care Provider showed he agreed to pay an extra weekly charge of £309.
- A social worker from the Council wrote to Mrs Y in June 2020. The letter explained her care in the Care Home was free of charge, paid for under COVID-19 emergency funding arrangements. It went on to say the funding was coming to an end and so a social worker would need to carry out an assessment and provide advice and support. The letter also said if Mrs Y had savings over £23,250, she would have to make her own care arrangements.
- The Court appointed Mrs X and her brother to be deputies for finance in July 2020. The deputyship order gave them power to manage Mrs Y’s finances on her behalf.
- Emails from Mrs X to the Care Home include an informal complaint about Mrs Y’s nails being dirty and too long. The manager responded with an apology and said Mrs Y had had a manicure and they had arranged a pedicure.
- The Care Provider entered into a private contract with Mrs Y’s son. This is dated March 2021. The Care Provider told me it sent him a copy in October, but he never returned it. The contract said care started on 19 October 2020 (when council funding stopped).
- Mrs Y died in hospital in April 2022.
- In April, Mrs X emailed the Care Provider saying Mrs Y had been charged £9150 for March to October 2020. She said the Care Provider should not have done this because funding should have been covered by the NHS. She asked the Care Provider to credit the account and said she would then pay the final invoice.
- Also in April, a council officer and Mrs Y’s son spoke and he said the top up fee was paid from Mrs Y’s own funds. The son went on to say Mrs X had refused to pay the top up at the time as she said she could not afford it.
- At the end of August, Mrs X emailed the Care Home to say she did not have a copy of the contract. The Care Home said signing it was the family’s responsibility and her brother received a copy; care was provided and he paid the previous bills.
- Mrs X complained to the Care Provider in November 2022. She said she had raised matters with the Care Home in August and was unhappy with its explanation.
- The Care Provider responded to Mrs X’s complaint at the end of January 2023, apologising for the delay. It said:
- There was an outstanding bill of £21,000 (for fees due January to April 2022)
- Probate was issued in October 2022, so could she let the Care Provider know about when the bill would be paid
- COVID-19 funding was in place at the funding body’s rate. It had its own rates for providing care and there was a top up due for the difference. This was agreed with Mrs X’s brother.
- It was unfair to raise these issues two years after the event.
The Care Provider did not signpost Mrs X to the LGSCO.
- Mrs X replied saying her brother did not have deputyship at the relevant time, they had applied for this, but it did not come through until later. She also said Guidance said the NHS would fully fund Mrs Y’s care during the period it was in force and she raised matters as soon as she had sight of invoices.
- At the start of March 2023, the Care Provider wrote to Mrs X about the outstanding bill, saying it had an agreement about payments with her brother and he continued to pay without objection. It asked her to pay the bill, or it would pass the matter to its lawyers.
- Mrs X told me she paid the bill in full. She also emailed the Care Provider to say the reason she had not settled the invoices sooner was because the Care Provider had not addressed all her complaints.
- The Council told me:
- As far as it was aware, the top up was paid by a third party as Mrs Y’s son had confirmed the family were in a position to pay it
- Mrs Y’s son was happy to pay the difference of £309.44 for a room with nice views.
Mrs Y was charged £9150 when her care should have been fully funded by COVID-19 funding.
- The Council was at fault. Annex A of Care and Support Statutory Guidance is clear that there should have been a written top up agreement between Mrs Y’s family (so either Mrs X or her brother) for the top up payment. The council placement agreement/contract itself is signed retrospectively and after council funding ended. This was also fault. The council placement agreement/contract also says there was not a top up. There is therefore no basis for charging the top-up.
- The records indicate Mrs Y’s family did not pay the top up and it was paid for from Mrs Y’s own assets (see paragraph 34). It was therefore not a third party top up, but a ‘first party top up.’ There is no legal basis for these aside from in limited circumstances which did not apply in Mrs Y’s case.
Inadequate nailcare and bathroom cleaning
- The records indicate Mrs X raised nail care at the time and the manager addressed it by arranging a manicure and podiatrist’s appointment. This was an appropriate response and remedied any injustice to Mrs Y.
- Mrs Y’s care plans indicate she received care in bed and did not use the toilet or chair. The photos Mrs X has provided show a dirty toilet and stained chair, but the fault and injustice to the late Mrs was not significant as she did not use these items.
The Care Provider did not provide an adequate complaint response, instead issued a letter threatening legal action and failed to signpost the LGSCO
- We expect care providers to signpost our service at the end of the internal complaint process. The failure to do so was fault causing avoidable confusion.
- The Care Provider failed to identify its action in charging the top up fee was not in line with national guidance (Annex A of Care and Support Statutory Guidance). This was a failure in complaint handling and was not in line with Regulation 16 of the 2014 Regulations. It caused avoidable frustration and time and trouble pursuing the complaint with the LGSCO.
- Between March and October 2020, the Council commissioned Mrs Y’s placement. 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 provider, I have made recommendations to the Council. Within one month of my final decision, the Council will refund Mrs Y’s estate the top-up fee of £9150 which should not have been paid.
- After the Council stopped commissioning the placement in October 2020, Mrs Y became a self-funder. So my recommendations for the injustice during this period are for the Care Provider to complete. Within one month of my final decision, the Care Provider will:
- Apologise in writing to Mrs X for the avoidable distress and time and trouble complaining
- Ensure future complaint responses signpost the LGSCO and issue a written reminder to all staff responsible for drafting complaint responses.
- The Care Provider and Council should provide us with evidence it has complied with the above actions.
- The Care Provider, acting for the Council was at fault as it charged an additional fee for the late Mrs Y’s care with no top up agreement being in place. The Council will repay the top-up fee. The Care Provider’s complaint handling was not in line with expected standards. It will apologise and take action set out in this statement to prevent recurrence.
- I completed the investigation.
Investigator's decision on behalf of the Ombudsman