Sandwell Metropolitan Borough Council (19 005 086)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 21 Nov 2019

The Ombudsman's final decision:

Summary: Miss X complained on behalf of her late father, Mr F about the Council commissioned care home, Delves Court, where Mr F lived between August and December 2018. Miss X said the care home unfairly charged for a notice period at the private rate after Mr F left. The Council was at fault. The care home entered into a private agreement with Mr F which was against the contractual agreement it had with the Council. It also wrongly insisted Mr F serve a 30-day notice period which resulted in large final invoice. The Council has already acknowledged those faults and has proposed to pay Miss X’s outstanding fees with the care home. In addition, it agreed to pay Miss X £150 to acknowledge the distress and time and trouble this has caused her and agreed to address the matter with the care home to prevent any recurrence of the faults.

The complaint

  1. Miss X complained on behalf of her late father, Mr F, about the Council commissioned care home, Delves Court, where Mr F lived between August and December 2018. Miss X said the care home unfairly charged her for a notice period after Mr F left the care home. Miss X said the Council’s social worker told her it would not arrange a home care package for Mr F unless she agreed to pay for the notice period. Miss X said the matter has caused her distress and will cause avoidable financial loss should she have to pay the invoice.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  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, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I spoke to Miss X about her complaint.
  2. I considered the Council’s response to my enquiry letter.
  3. Miss X and the Council had an opportunity to comment on my draft decision. I considered the comments before I made a final decision.

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What I found

Background

The complaint

  1. 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.
  2. If someone has a contract for their care that is between them (or their representative) and the care provider, then the Ombudsman can investigate and make findings against that care provider. If the contract is between the person (or representative) and a council then the Ombudsman can make findings against that council.

What happened

  1. Miss X was the main carer for her parents, Mr F and Mrs T. In August 2018, Mr F moved into the care home with his wife, Mrs T, on a respite placement. The Council commissioned and funded the placement.
  2. Mrs T left the care home during August 2018 and Mr F stayed there on a permanent basis. The Council continued to fund Mr F’s stay at the care home. During November 2018, Mr F started to become unsettled at the care home and expressed a wish to return home for Miss X to care for him. Miss X says she spoke to the Council who told her to she needed to give notice to the care home and negotiate fees for the notice period. The care home told Miss X, that Mr F would need to give 30 days notice in line with the contract.
  3. Mr F left the care home in December 2018 with 12 days still remaining on the notice period enforced by the care home.
  4. The care home sent Miss X a final invoice in March 2019 for Mr F’s care fees. Miss X said the final invoice’s fees were at the private rate (which was higher than the Council commissioned rate) and included the rest of the notice period after Mr F left the care home.
  5. Miss X complained to the care home about the final invoice. She said Mr F’s contact made no reference to a 30-day notice period. Miss X further complained about Mr F’s social worker. Miss X said the social worker told her prior to Mr F leaving the care home that she must agree to pay for the whole notice period, otherwise the Council would not arrange a home care package for him.
  6. The care home responded to Miss X’s complaint in June 2019. It said the final invoice remained payable. It referenced an email from Miss X where she agreed to meet the fees for the whole notice period. The care home said the Council agreed to fund Mr F’s care fees until the end of November 2018, after which he became a private resident. The care home said, therefore, the final invoice was at the private fee rate.
  7. Miss X remained unhappy and complained to the Ombudsman.

My findings

  1. In response to my enquiry letter the Council said it had not previously formally investigated Miss X’s complaint, because she complained directly to the care home. The Council examined the records and said the care home entered into a private funding agreement with Mr F which was against the contractual conditions in place between it and the care home. That was fault and meant the care home charged Mr F at private rates for the latter stages of his stay. As this arrangement was fault, the original agreement between the care home and the Council remained in place.
  2. The Council said the contract between the care home and the Council only allows for a one-week notice period. The care home insisted that Mr F give 30 days’ notice. This was fault and meant Miss X was left with an avoidable final invoice for Mr F’s care fees which caused her distress and time and trouble.
  3. The Council said it would address these faults with the care home. The Council has also proposed to pay all of Miss X’s outstanding fees owed to the care home which is a suitable remedy to the injustice caused to Miss X.
  4. As the Council commissioned the care, the findings of fault are findings against the Council as the care home was acting on the Council’s behalf.
  5. Miss X also complained about the actions of the social worker. The Council says it will investigate this and consider what action is necessary. I do not intend to investigate this issue further as there is nothing else I could achieve.

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Agreed action

  1. Within one month of the final decision, the Council agreed to:
    • apologise to Miss X and pay her £150 to acknowledge the distress and time and trouble the faults caused her.
    • provide the Ombudsman with evidence it has paid Miss X’s outstanding fees owed to the care home.
    • provide the Ombudsman with evidence of how it addressed the faults with the care home, to prevent reoccurrence of the faults.

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Final decision

  1. I have completed my investigation. The Council was at fault and agreed to my recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman

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