The Ombudsman's final decision:
Summary: Miss X complains the care home is pursuing her late grandmother, Mrs Y’s, estate for care home fees when she is not clear that the amount owed is correct and also about suspicious activity on Mrs Y’s bank account. She wants the care provider to waive the fees. I have ended my investigation as the matters relate to events that happened too long ago for me to investigate now, allegations of fraud or theft are police matters, there is insufficient evidence of injustice to Mrs Y and any injustice to Mrs Y can no longer be remedied.
- Miss X complains the care home is pursuing her late grandmother, Mrs Y’s, estate for care home fees when she is not clear that the amount owed is correct. She says there was suspicious activity on her grandmother’s bank account including cheques paid for different amounts and to different accounts at the care home.
- The matter has caused Miss X uncertainty over whether her grandmother paid the correct fees. She wants the care provider to waive the outstanding care fees.
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 care provider has done. (Local Government Act 1974, sections 26B and 34D, 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. (Local Government Act 1974, sections 34B and 34C)
- We investigate complaints about adult social care providers. We provide a free service but must 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 further investigation will lead to a different outcome, or
- we cannot achieve the outcome someone wants.
(Local Government Act 1974, sections 34B(8) and (9))
How I considered this complaint
- I have considered the information provided by Miss X and have discussed the complaint with her on the phone.
- I have considered the care provider’s response to our enquiries.
- I gave Miss X and the care provider the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.
What I found
- 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.
- Mrs Y moved into the care home in late July 2014. Mrs Y had a mental health condition and other physical conditions. At the time the care provider said she was very mentally unwell. Mrs Y had capital including a property and so was liable for the full amount of her care fees. Mrs Y’s care plan noted she was independently mobile, could communicate her needs and wishes and could go out on her own or with a friend. It noted she chose not to have contact with her family and was able to make her own decisions.
- The care provider’s contract set out that fees were payable ‘weekly/four weekly/monthly by bankers standing order or otherwise as agreed, payable in advance on the first working day of the agreed term to which the payment relates’. In May 2015 Mrs Y signed the contract.
- Mrs Y died in July 2018. In December 2018, the care provider issued the estate with an invoice for over £17,000 for care fees owed between November 2017 and July 2018. Miss X was granted probate in May 2019 and following this her solicitor corresponded with the care provider about the debt.
- In August 2019 the solicitor asked the care provider for confirmation of funds already paid by Mrs Y, why a standing order was not set up and for confirmation of additional items paid for by Mrs Y during her residency.
- In its response, the care provider said the fees were paid up to the date of the invoice. It said a standing order was not set up as Mrs Y preferred to pay as her bills became due. It said the only additional items she paid for was the insurance for the property she owned. It said she went out frequently and would make her own purchases using her own debit card. It said she told it she was in the process of appointing a solicitor to deal with her finances. Her payments got behind as she had less money available in her account and needed to look to sell her property to continue financing her care. It said it therefore did not put pressure on her about the outstanding fees as it knew as some point the property would be sold and her care fees brought up to date.
- They solicitor wrote again and asked for confirmation of what Mrs Y had paid, what happened to her bank card and cheque book and queried Mrs Y’s bank statements which showed regular large transactions to supermarkets. Miss X also raised her concerns regarding the activity on Mrs Y’s bank account with the police and the Care Quality Commission (CQC), which is the regulator of care services.
- The care provider wrote to Miss X’s solicitor in September 2019. It said the rates it charged were the same as the rates set by the Council. It said Mrs Y had her own bank card and cheque book but became very unwell physically and mentally before her death. If they were not found with her belongings, it presumed she had disposed of them. It said all fees were paid as they became due up to the date of the invoice.
- Miss X complained to us in October 2020 and we asked the care provider to consider the complaint. It asked Miss X to provide it with copies of the bank statements she was concerned about. Miss X provided a breakdown which showed frequent supermarket transactions of over £50 a time between October 2014 and January 2018. For example, there were 34 transactions between April and June 2016 which amounted to a total spend of £2,300.
- The care provider responded to Miss X’s complaint in June 2021. It said Mrs Y was only ever invoiced for her care fees as they became due. She would often not pay for two to three months then would pay two months together. She did not write cheques herself but signed them with two staff members in attendance. Some of the cheques were paid to the care provider’s account and some went into the care home manager’s account.
- The care provider said Mrs Y’s health started to deteriorate in February 2018 at which point she suggested getting a solicitor to manage her affairs as her capital had reduced and she needed to maintain her payments but she did not get round to it.
- It said Mrs Y enjoyed going out and buying food and snacks at the local supermarket. She would spend time with another resident and they would buy each other drinks, snacks and sweets. She had capacity to make her own decisions and her bank card remained in her possession at all times. It did not know where she kept her personal belongings such as her purse and cheque book and what she did with them. It said it found nothing to substantiate Miss X’s complaint and awaited payment of the care fees.
- Miss X remained unhappy and complained to us. She said she could not be sure what Mrs Y owed and raised concerns including:
- whether Mrs Y had capacity to pay her care home fees.
- cheques being written to the care home manager and to the care provider on the same date in July, September and November 2015.
- five cheques being written by Mrs Y on one date in November 2014.
- a payment made in December 2017 when care fees were owed from November 2017.
- Mrs Y was deemed to have capacity.
- due to cash flow difficulties the owner agreed some cheques should be paid direct to the manager to reimburse them for shopping they had purchased for the care home from their own money.
- the five cheques to the care provider in November 2014 covered Mrs Y’s fees from her admission to the end of October 2014 at a rate of £60.73 per day. Following this the care provider said Mrs Y asked to pay her fees monthly to avoid writing so many cheques.
- the cheque paid in December 2017 covered the care fees owed for September and October 2017.
- Miss X has raised concerns about Mrs Y’s bank account expenditure between 2014 and 2018. Mrs Y was deemed to have capacity to manage her own finances and died in 2018. These events happened too long ago for me to be able to establish exactly what happened at the time. In addition, Miss X raised her concerns about the activity on Mrs Y’s bank account with the police. Matters of potential fraud or theft are for the police to investigate, not the Ombudsman.
- The care provider appears to have had a relaxed approach to Mrs Y paying her care home fees, allowing her to not pay for a month then to pay two months at once. This has led to Miss X having difficulties reconciling what was paid with what was owed. However, I have seen no evidence that Mrs Y was overcharged or caused an injustice by this.
- Miss X was understandably confused by Mrs Y writing five cheques on one date in November 2014. However, these payments plus an additional payment Mrs Y made in October 2014 equate to the care fees due between her care home admission in July 2014 to the end of October 2014 and there is no obvious overcharge to Mrs Y.
- Mrs Y’s fees were based on the rate set by the Council. She paid her fees monthly so the amount owed varied according to how many days there were in each month. On three occasions Mrs Y wrote two cheques on one date, writing one to the care provider and one to the care home manager. The care provider says it was aware and in agreement with this. Each cheque covered one month’s care fees and these payments were two months apart. It therefore seems these cheques covered the care fees due. Whilst it appears unconventional that cheques were paid to the manager and care provider, how the care provider arranges its finances is its own private arrangement and not for the Ombudsman.
- The care provider says Mrs Y’s account was up to date as of the end of October 2017. The last payment made by Mrs Y to the care home was December 2017 which the care provider says covered her fees for September and October 2017. I have seen no evidence of any further payment being made by Mrs Y to the care home after that date.
- Mrs Y stopped paying her care fees in November 2017. The care home says Mrs Y was seeking solicitor’s advice and was looking to sell her property to fund her care home fees. In such circumstances I would normally expect a care provider to involve the Council to assist with payment arrangements. However, the care provider chose to take no action after Mrs Y stopped paying the care home fees. That was its decision to take. The care provider continued to support Mrs Y and to provide care, even though it was owed significant care fees, so I cannot say this caused Mrs Y an injustice.
- Mrs Y wants the care provider to waive the outstanding fees but Miss X has not provided any evidence to show Mrs Y paid more care fees than were due. Given the passage of time and Mrs Y’s death I cannot see that I can achieve anything more by further investigating the complaint.
- I have ended my investigation as the events happened too long ago, there is no evidence of any significant injustice to Mrs Y and in any case, any injustice to Mrs Y can no longer be remedied.
- Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman