Summary: Mrs X complained about poor communication and invoicing during the period her late father, Mr Y lived at Sunnyside Care Home (the Care Home). The Care Home raised invoices appropriately and there was no fault in how it issued Mr Y’s contract or how it chased outstanding arrears. The Care Home delayed attributing an NHS payment to Mr Y’s account which covered the first three weeks, but this did not cause a significant injustice.

The complaint

1. Mrs X complained about poor communication and invoicing during the period her late father, Mr Y stayed at Sunnyside Care home (the Care Home). Mrs X said the Care Home:
• failed to deal with her in a fair and transparent manner around care fees for the inital 8 weeks of Mr Y’s stay which she believed was to be funded by the NHS;
• did not involve her with Mr Y’s contract despite him having limited mental capacity;
• dealt with their concerns poorly and without empathy.
2. Mrs X says the matter has caused her and the family distress and the Care Home’s unempathetic approach made the matter difficult to resolve.

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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. 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 spoke to Mrs X about her complaint and considered information she provided.
6. I considered information from the Care Home and its response to my enquiry letter.
7. I considered an investigation undertaken by our Joint Working Team which looked into the dispute with the NHS about the initial 8 weeks fees and who was responsible for those fees.
8. Mrs X and the Care Home had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Mental capacity

9. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
10. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:
• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success

What happened

Background

11. Mrs X’s father, Mr Y went into hospital towards the end of 2021 after a fall at home. He was discharged home but returned a few days later. The hospital and family agreed Mr Y could no longer manage at home and referred him to social care. The Council allocated a social worker to Mr Y who met with the family about moving Mr Y into a care home when he left hospital.
12. Mrs X and the family chose the Care Home for Mr Y and he moved there in March 2022. The Care Home understood Mr Y was to self fund his care. Mrs X believed the Council social worker said the NHS would fully fund Mr Y’s first eight weeks at the Care Home. The Council said it advised that Mr Y would need to fully fund his care from the outset.
13. A separate Ombudsman investigation has already investigated the issue around the initial funding of Mr Y’s placement. The investigation found the NHS agreed to pay for the first 18 days of Mr Y’s stay while it assessed Mr Y’s eligibility for Continuing Health Care (CHC) funding which is NHS funded care. Mr Y was not eligible for CHC funding and so was liable to pay for his care from late March 2022 onwards. In November 2022, the NHS paid the care home for the first 18 days of Mr Y’s stay. The investigation found issues around the Council’s communication of this arrangement to Mrs X and the family. I have will referred to this below for context as it is relevant to Mrs X’s complaint about the Care Home.

Mrs X’s complaints

14. Upon moving into the Care Home the pre-admission notes from the NHS show Mr Y was able to understand and take part in conversations, could understand and follow instructions and was able to express his views. The Care Home completed a assessment which found he had capacity with good recall.
15. The Care Home provided Mr Y with a contract which he verbally agreed. A member of staff at the Care Home witnessed the contract signing as Mr Y was physically unable to. A second contract had to be issued as Mr Y noticed his name was spelt incorrectly. The contract outlined the weekly fees Mr Y was liable to pay. It also explained how the Care Home could charge interest for non-payment of fees and outlined the further action it may take for continued non-payment. This included legal action and eviction as a last resort. The Care Home noted Mr Y said he would speak to Mrs X about the contract as she managed his money.
16. Records show the Care Home started raising invoices and applied charges from the start of March when Mr Y first moved into the home. The first invoice covered fees for March and April 2022 which the Care Home said it sent to Mrs X’s email address. Mrs X said she did not receive this invoice.
17. Records show Mrs X made payments to the Care Home during May. She contacted the Care Home in August to say she had not received invoices for July or August. The Care Home resent the invoices and records show Mrs X made a further payment. The Care Home offset these payments against the total amount outstanding at the time.
18. In September 2022 Mrs X contacted the Care Home and said she had applied for social care funding. The Care Home said it put Mr Y’s account on hold until the outcome of the funding assessment, although it continued to raise invoices.
19. In November 2022 the Care Home received a payment from the NHS to cover the first 18 days of Mr Y’s stay at the Care Home. The Care Home said this payment was unexpected and so, it did not immediately act on it or apply it to Mr Y’s account.
20. At the end of March 2023, the Council decided Mr Y and was not eligible for funding and therefore he was still liable to continue paying for his own care.
21. At the time of the funding decision Mrs X emailed the Care Home and said she had not received any invoices for some time. She asked the Care Home to resend the invoices and clarify what fees were outstanding.
22. The Care Home resent all of Mr Y’s invoices to Mrs X and confirmed that nearly £45k of fees were outstanding. Mrs X disputed the invoices and the amount owed believing that Mr Y was not liable for the initial eight weeks of his stay. The Care Home explained it received no notification that the NHS was funding his care for eight weeks. Mrs X also said she had not received any invoice for fees for March and April, hence her ongoing belief that the initial period was covered by the NHS.
23. The Care Home responded to Mrs X. It said it sent her an invoice for March and April’s fees in April 2022. It had no contact from Mrs X at the time about a belief that those fees should have been covered by third party funding. The Care Home said it resent some invoices in July 2022 but had no record of any other issues with invoices until now. Mrs X reiterated her belief.
24. The Care Home reconfirmed its position that Mr Y was a self-funder upon admission and advised Mrs X to raise her concern with the Council or the NHS. The Care Home said it had found an unassigned payment from the NHS which covered Mr Y’s first 18 days at the Care Home and had applied that to the account. The Care Home said it reserved the right to charge interest on the outstanding fees in line with its contract should it remain unpaid.
25. Mrs X made payments to the Care Home to cover all of the arrears apart from the disputed March-April 2022 period. This, at the time, left arrears of just over £4,800.
26. The Care Home and Mrs X continued to correspond about the matter and a meeting took place between the parties during June 2023. The Care Home outlined the consequences of failing to clear the debt including interest charges, legal action and terminating Mr Y’s placement.
27. Mrs X made a complaint towards the end of June 2023 which was addressed to the Care Home, NHS and the Council. Mrs X raised concerns mainly about the dispute around the charging of the initial period but also about the invoicing and the NHS payment which was allocated late to Mr Y’s account, by the Care Home. She also complained the Care Home failed to involve her in Mr Y’s contract despite him not having full mental capacity. Mrs X said the Care Home was now unfairly threatening legal action.
28. A joint complaint response was issued to Mrs X in August 2023 which included input from the NHS, the Council and the Care Home. Relevant points from the Care Home included:
• There were no gaps in invoicing Mrs X from March 2022 onwards and the system showed all invoices were sent monthly throughout Mr Y’s stay.
• The Care Home had not taken any action on the amount outstanding and had explained the issue around the initial period was outside its control.
• The NHS payment for the 18 days was unexpected and therefore reconciled late for which it apologised.
• The Care Home manager witnessed Mr Y sign the contract who was assumed to have mental capacity.
• The Care Home said it had requested payment for the outstanding amount a number of times before outlining next steps. The Care Home said Mrs X’s correspondence made it clear she would not pay for that initial period.
• The Care Home disagreed that staff dealing with the issue were impolite or lacked empathy.
29. Unhappy with the response from the Care Home, Mrs X asked it to deal with the matter at stage 2 of its complaints process.
30. The Care Home wrote to Mrs X in October 2023. It said it would respond to the complaint in due course but said the substantive concern about the initial period was beyond its influence and control. It said therefore it would start adding interest on the outstanding amount in line with the contract.
31. Records show Mrs X paid the arrears in December 2023. Mrs X did not pay the added interest charges which by this time stood at £96.
32. The Care Home provided a final complaint response which reiterated most of what it had previously said. Mrs X remained unhappy and complained to us.

My findings

33. As explained above, another investigation found Mr Y was liable to pay for his own care upon arrival at the Care Home, other than the first 18 days which the NHS paid for. I cannot re-investigate matters we have already considered.
34. Records including hospital notes, pre-admission records and Care Home notes show at the time of moving into the home Mr Y was able to understand and take part in conversations and express his own views. There are no records which indicate Mr Y did not have mental capacity. As such, Care Home staff dealt with Mr Y in line with relevant law with regards to his mental capacity to understand and agree the contract. The Care Home was not at fault.
35. Relevant evidence shows the Care Home understood Mr Y was self funding his stay and it started raising invoices as soon as Mr Y became a resident. Mrs X said she did not receive the early invoice which showed Mr Y was liable to pay for fees from the outset. The Care Home said it sent the invoice to Mrs X’s email address. It is unlikely further investigation by me will resolve this issue.
36. Following Mr Y’s application for social care funding the Care Home put the account on hold pending the outcome, however fees accrued during this time. The outcome was not provided until March 2023 which meant Mr Y’s account was on hold for 6 months. There was no fault in the Care Home putting the account on hold and there is no evidence Mrs X raised concerns about a lack of invoices until the funding decision outcome in March 2023.
37. The Care Home said it raised and sent invoices during this 6 month period, however, Mrs X said she did not receive them. Again, further investigation would unlikely resolve this issue. When Mrs X asked the Care Home to resend the outstanding invoices it then became clear to Mrs X that Mr Y was liable for fees from the outset. Mrs X had made payments to the Care Home in May and August 2022 which the Care Home offset against the outstanding balance at the time so it was not aware she disputed the initial charging period. The Care Home understood Mr Y was self funding his care. It was not at fault. The Care Home resent the invoices and ultimately Mrs X paid for the care Mr Y had received.
38. The Care Home accepted it delayed attributing the payment from the NHS for Mr Y’s first 18 days to his account. There is no obvious reason why this was delayed as the payment record had Mr Y’s name on it. This delay was fault but this did not cause any significant injustice as the payment was then used towards the arrears. The Care Home has already updated its procedures and invoicing system to ensure any payments from the NHS are attributed to accounts without delay. Therefore, I have not made any further recommendations in respect of this.
39. The Care Home charged Mrs X interest when she failed to pay the charges for Mr Y’s first eight weeks at the care home. Mr Y was liable for the fees and in line with the terms and conditions in the contract, the Care Home reminded Mrs X about interest charges and further potential action at a meeting and in correspondence between May and September 2023. As the fees remained unpaid it charged interest. Mrs X is unhappy with how the Care Home communicated this and believed it acted with a lack of empathy. Although I acknowledge events have caused Mrs X distress and upset, there was no fault in how the Care Home acted or decided to add interest as it was in line with the contract Mr Y had agreed.

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Final decision

40. I completed this investigation. There was evidence of fault but this did not cause significant injustice. The Care Home has already taken action to prevent recurrence of the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman