Summary: Mrs B complained that a Care Provider commissioned by the Council terminated her mother’s place at the home unreasonably because a family member did not wish to provide their contact details. We found fault because the Council took no action to mediate between the parties to try and resolve the situation. The Council has agreed to pay £200 to Mrs B and improve its approach in future cases.

The complaint

1. Mrs B complained that the Care Provider commissioned by Lancashire County Council (the Council) acted unreasonably in asking for her brother’s contact details, in respect of her mother’s (Mrs C) residence at the care home, because the Council was responsible for the top-up payment. It further acted unreasonably in evicting Mrs C from the Care Home when she did not supply her brother’s details. This caused significant distress and inconvenience to Mrs B and Mrs C.

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

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How I considered this complaint

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mrs B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Third party top-ups

5. People have a right to a choice of care home, so if a person chooses a more expensive placement than the council will pay, someone must be willing and able to pay the difference between the amount the council will pay (which includes the resident’s financial contribution) and the full cost of the placement for as long as necessary. This is called a ‘top-up’. Normally a third party such as a relative will pay the top up. They can pay the ‘top up’ directly to the care provider, but this is not recommended. If the Council is funding the rest of the placement with an assessed contribution from the resident, the relative can pay the Council who will then pay the care provider the whole amount.

Care Provider contract

6. This document between the Council and the Care Provider states that a resident shall be admitted to the home for an initial period of four to six weeks for the purposes of confirming the suitability of the placement. After this the social worker shall carry out an initial review in consultation with all parties. At this point if either party considers the placement is inappropriate then either party can end the agreement with a minimum of seven days’ written notice.

What happened

7. Mrs C was placed in a home run by the Care Provider on a temporary basis (for four weeks) in March 2019. Initially this was on a self-funding basis. Mrs B agreed to pay the top-up fee until the Council funding started and signed a contract with the Care Provider to that effect. In April 2019 the Council agreed to fund the placement with Mrs B paying a top-up fee directly to the Council. So, from 24 April 2019 the Council was responsible for paying the whole amount to the Care Provider.
8. The Council then carried out a financial assessment of Mrs C.
9. In early May 2019, before the assessment was completed and before the Council had started paying, Mrs B met with the Care Provider to discuss how Mrs C had settled in and to hand over documents including the signed third-party agreement. At this meeting the Care Provider said Mrs C had settled in very well and requested contact details of Mrs B’s brother who was contributing to the top-up fee. The Care Provider also said that they considered Mrs C was a temporary resident until they received the Council’s payment.
10. Mrs B advised the Care Provider the next day that her brother did not want to share his contact details and it was unnecessary as she would be responsible for the top-up payment as agreed with the Council.
11. The Care Provider responded to Mrs B, saying they found it strange that her brother would not provide his details and that they could not think of a good reason not to do so. The Care Provider also said they had reduced the fees and would have expected the family to be more supportive in the circumstances. The Care Provider said it was important for them to establish contact with all members of a family providing funding and support to a resident.
12. Mrs B replied saying she had signed the third-party agreement and had power of attorney for her mother, so she had responsibility for ensuring the top-up fee was paid. She had checked with the Council and it would be including the first payment in the payment run at the end of May/beginning of June. She said any arrangement she had with her brother was private and asked the Care Provider to refrain from ‘this harassment’.
13. The Care Provider then informed Mrs B that he was giving the Council four weeks’ notice to terminate Mrs C’s contract (to end on 12 June 2019), given the serious allegation Mrs B had raised against the Care Provider. The Care Provider said to the Council that they considered the placement had irretrievably broken down. The Care Provider also said they were considering referring themselves to the police to investigate the allegation of harassment and invited the Council to refer the matter to the safeguarding team.
14. Mrs B was very distressed that Mrs C had been given notice and she contacted the Council for assistance.
15. The Council sought advice on the situation. The Council concluded Mrs B was correct in her reply that the Council was responsible for paying the fees to the Care Provider and any arrangement between her and her brother was private. It suggested her use of harassment in the circumstances was a little strong but equally the response from the Care Provider was disproportionate. The Council also noted that the contract did not explicitly allow for termination in these circumstances but if the relationship had broken down it could give 28 days’ notice to terminate. It considered the best course of action was to mediate between the family and the Care Provider.
16. There is no record of any further communication between the Council and the Care Provider. The Council completed Mrs C’s financial assessment in May 2019 concluding she would have to make a contribution towards the cost of her care.
17. Mrs B complained to the Ombudsman in December 2019. The Ombudsman asked the Council as the commissioning authority to consider Mrs B’s complaint.
18. The Council responded in March 2020. It said it understood Mrs B wanted a full explanation why Mrs C had been given notice and explained the Care Provider believed he had done this in an email sent in August 2019: the relationship had broken down when Mrs C asked him to stop harassing her for her brother’s contact details. The Council explained that because Mrs C’s placement was temporary, normal contractual arrangements did not apply. The Council concluded the Care Provider had acted in accordance with the agreement. However, it said it was unable to conclude whether it had acted within the spirit of the agreement.
19. Mrs B was unhappy with the Council’s response and complained again to the Ombudsman. In its response to my enquiries the Council said it considered the Care Provider’s request for family details was not unreasonable.

Analysis

20. I agree that the Care Provider’s request for Mrs B’s brother’s details was not unreasonable in the context of holding information about family members of residents who may wish to visit Mrs C or make contact with her at the Home. However, it was not necessary to have the information as part of the fee arrangements.
21. I agree that both Mrs B’s accusation of harassment and the Care Provider’s response to that allegation were disproportionate and caused the situation to escalate in the heat of the moment.
22. I also agree that the justification for sending the notice to terminate was not explicitly contained in the contract arrangements: although the Care Provider said Mrs C was a temporary resident until it received payment from the Council, by the time the Care Provider issued the notice to terminate, Mrs C had been resident in the Home for more than six weeks and both parties agreed she had settled in well.
23. I consider the Council’s suggestion of mediation between Mrs B and the Care Provider was a reasonable way forward, but the Council did not make any further contact with the Care Provider to explore whether the situation could be reversed. This was fault, which has created uncertainty as to whether intervention by the Council could have reversed the decision to terminate. This would have saved the upheaval for Mrs B and Mrs C of finding a new care home.

Agreed action

24. In recognition of the distress caused to Mrs B and Mrs C, I recommended the Council (within one month of the date of my final decision) pays Mrs B £200 and considers for similar situations in the future, whether mediation would be a suitable way forward.
25. The Council has agreed to my recommendations.

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Final decision

26. I consider this is a proportionate way of putting right the injustice caused to Mrs B and Mrs C and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman