Summary: Mr & Mrs X complain the Council failed to deal properly with their son’s placement at Care Home B, resulting in the placement breaking down and significant inconvenience to them. The Council failed to ask the Care Provider to sign a new contract and failed to take action which may have prevented the dispute over fees from escalating. The Council needs to apologise and pay financial redress.

The complaint

1. The complainants, whom I shall refer to as Mr & Mrs X, complain the Council failed to deal properly with their son’s placement at Care Home B, resulting in the placement breaking down and significant inconvenience to them.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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

5. I have:
• considered the complaint and the documents provided by Mr & Mrs X;
• considered the comments and documents the Council has provided in response to my enquiries; and
• shared a draft of this statement with Mr & Mrs X and the Council, and invited comments for me to consider before making my final decision.

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What I found

6. Mr & Mrs X live abroad. Their son, Mr Y, is autistic with a severe learning disability and a diagnosis of bipolar disorder. He lived in Care Home A for many years. This cost £1,926.21 a week. On 7 March 2017, the Care Provider gave the Council 28 days’ notice (i.e. until 17 April) for the placement following safeguarding incidents. It said Mr Y could move to Care Home B, a new service it had set up. The Care Quality Commission has registered Care Home B to provide places for six people.
7. On 20 March Mrs X asked the Council to consider placing her son at Care Home B.
8. On 22 March the Council referred Mr Y to one of its care homes, which provides short-term placements for people in crisis or whose care has broken down.
9. On 29 March the Care Provider explained how it could meet Mr Y’s needs at Care Home B.
10. On 7 April the Council asked the Care Provider to extend the notice period, so it could arrange a best interests meeting before moving Mr Y. The Care Provider agreed to this.
11. The Council held a best interests meeting at Care Home A on 11 May, which included Mr & Mrs X. Everyone agreed it was in Mr Y’s best interests to move to Care Home B.
12. On 18 May the Council asked the Care Provider to complete a cost model, which it uses for placements costing more than £1,000 a week. The Care Provider estimated the cost to be £2,234.52 a week, leaving a shortfall of £307.91 against the figure from the Council’s cost model of £1,926.21. The latter is based on Care Home B providing accommodation for up to 12 people. Although Care Home B is registered to take six people, the Council says it used 12 in its cost model as staff are shared between Care Home B and another care home on the same site.
13. On 1 June, the Council exchanged e-mails with the Care Provider about its cost model. It asked it to “confirm the model” it had sent so it could approve the costs. The Care Provider said: “I have looked at our ‘core costs’ and reviewed how these have been transferred into your ‘hotel and management’ costs. The allocation appears to be correct”.
14. In a letter to the Care Provider on 12 June, the Council said it understood the Care Provider had agreed a fee of £1,926.21 a week, based on core costs of £1,236.99 plus extra hours at £689.22. The Council says it did not enter a new contract with the Care Provider as Care Home B is on the same site as Care Home A.
15. Mr Y moved to Care Home B on 20 June. Mr & Mrs X say the transition went smoothly.
16. On 28 September the Care Provider told the Council there was a misunderstanding over the “agreed fee”. The Council asked it to clarify the misunderstanding, as it had confirmed the agreed fee by letter. The Care Provider said it did not receive the letter at the time but had now seen it.
17. In October 2017 the Care Provider asked the Council to “authorise a payment on account of fees”, as it was some weeks without full payment which was affecting cashflow. The Council said it would pay the Care Provider if it invoiced for the amount it had approved. It said they could then discuss “any difference / rate change”. The Care Provider told the Council it was struggling to get its costings into the Council’s cost model. It asked the Council if it could put the numbers in, provided they gave a figure of £2,234.12 a week. The Council said it would look at the figures and exchanged e-mails with the Care Provider about its cost model.
18. In November the Council told the Care Provider that, after using the figures provided and removing double counting of profit, the cost model gave £1,867.18 a week, which was less than the £1,926.21 it had agreed to pay. The Care Provider said the Council had removed profit altogether but even if it added this back in it would not provide a figure it could accept so was likely to give notice. The Council said it could only agree a fee based on its cost model. It exchanged further e‑mails with the Care Provider about the cost model. On 9 November the Council told the Care Provider it would have to start the process from scratch, using new figures it had provided, but could not do this until late January 2019.
19. On 14 November the Care Provider gave notice for Mr Y’s placement, as it had received no payment since he moved to Care Home B and they had been unable to agree the costs. It said it did not want Mr Y to leave and invited the Council to get in contact as soon as possible if there was anything it could do about the fee. The Council said it was looking for another placement and offered to pay the “agreed” rate.
20. On 1 December the Care Provider told the Council it wanted the notice period (14 December) honouring even if they resolved the funding issue. The Council said it would not have an alternative placement by then.
21. The Council wrote to Mr & Mrs X on 11 December. It said the Care Provider was invoicing at its increased rate rather than the agreed rate. It said it had a contract for the placement at Care Home B. It said the Care Provider had twice served notice within the past 12 months, which was not helpful for their son.
22. The Council identified Care Home C as a potential placement for Mr Y. His parents twice visited Care Home C before agreeing he should move there. However, their preference was for the Council to resolve the dispute with the Care Provider so their son could remain at Care Home B.
23. On 9 January 2018 the Council offered to pay the Care Provider the full amount it had asked for, provided it withdrew notice. The Council made the offer on the basis there would be further negotiations to agree a long-term fee. The Care Provider did not accept this offer.
24. Mr Y moved to Care Home C on 4 April. This costs £2,252.11 a week. Mr & Mrs X have confirmed that this transition also went smoothly.
25. Mr & Mrs X complained to the Ombudsman in July 2018. As the Council had not yet had an opportunity to respond to the complaint, we asked it to do so.
26. When the Council replied to the complaint in October it said:
• the way it dealt with the placement was in line with the need to ensure best value from the services it commissions;
• it agreed the cost with the Care Provider and sent a letter confirming this;
• it failed to ensure the Care Provider signed a contract for the placement.
27. The Council identified these service improvements:
• ensure care providers sign contracts;
• ensure clarity when confirming final placement arrangements;
• consider whether decision making was appropriate and whether escalation to senior managers was appropriate.

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

28. In providing care for Mr Y the Care Provider was providing a service on behalf of the Council (see paragraph 5 above). However, in its negotiations with the Council about the fee for Mr Y’s placement at Care Home B, the Care Provider was acting on its own behalf and was not providing a service to the Council. I cannot therefore hold the Council accountable for the Care Provider’s actions over those negotiations.
29. I cannot find fault with the Council for wanting to agree a fee based on its cost model.
30. The Council told Mr & Mrs X it had a contract for the placement at Care Home B but that was not the case. The Council accepts it should have asked the Care Provider to sign a new contract when responding to their complaint. However, it told me there was no need for a new contract as Care Home B is on the same site as Care Home A, although that is not correct. Nor would it have been relevant even if it had been. The Council was at fault for not asking the Care Provider to sign a new contract. This would have ensured any dispute over costs was addressed before Mr Y moved to Care Home B. However, I cannot say it would have been resolved, as that was not solely the responsibility of the Council.
31. Despite agreeing to pay £1,926.21 when its cost model said the cost should be £1,867.18 a week, the Council’s response to the Care Provider in November 2017 was unhelpful. Although the Care Provider had said it may have to give notice, the Council refused to redo the cost model until late January 2018. When the Care Provider gave notice on 14 November it left open the possibility of revoking this. Rather than look for a solution, the Council simply repeated its offer to pay what it had agreed. That was fault by the Council. It was not until after the Care Provider said it was no longer open to revoking the notice that the Council offered to pay the full amount requested.
32. The Council’s faults mean it missed opportunities to resolve the dispute over the fees before Mr Y moved to Care Home B and before the situation escalated and he had to leave.
33. There is not enough evidence for me to say that if there had been no fault by the Council Mr Y would still have moved to Care Home B but been able to stay there. I cannot rule out the possibility that he would have had to move to a temporary placement until a longer-term placement could be found. Within that context, I cannot recommend a remedy based on refunding all the costs Mr & Mrs X incurred because of the need for their son to move from Care Home B. However, there are grounds to propose a more modest financial remedy to reflect the time and trouble they have been put to in pursuing their complaint.

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Agreed action

34. I recommended the Council, within four weeks, writes to Mr & Mrs X apologising for its failings and pays them £300. The Council has agreed to do this.

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Final decision

35. I have completed my investigation, as the Council has agreed to remedy the injustice it has caused.

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Investigator's decision on behalf of the Ombudsman