Summary: Mr H complains the Council gave him incorrect information about how it was dealing with payments to his uncle’s care provider. We uphold the complaint. Our view is the Council did give confusing advice and did not respond to Mr H’s contacts seeking to resolve the issue. The Council has agreed to our suggested remedy.

The complaint

1. The complainant, whom I shall refer to as Mr H, complains the Council:
• advised him and his relative (Mr K) that Mr H should pay care home fees to it, following a change in his uncle’s (Mr J) financial circumstances;
• did not tell them that advice had changed;
• did not respond to communications trying to clarify the matter.
2. Mr H is the executor of Mr J estate and has been trying to resolve the issue for several months. This has delayed him finalising his uncle’s estate.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. As part of the investigation, I have:
• considered an earlier complaint Mr H made against the care provider;
• considered Mr H’s new complaint against the Council;
• made enquiries to the Council about the other complaint;
• spoken to Mr H;
• sent my draft decision to Mr H and the Council and invited their comments.

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What I found

Legal and administrative background

6. The charging rules for residential care are set out in the ‘Care and Support (Charging and Assessment of Resources) Regulations 2014’, and the ‘Care and Support Statutory Guidance 2014’. When a council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
7. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
8. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.

What happened

9. Mr J moved into a care home in January 2019. To start with he had too much capital to qualify for help with funding from the Council. So he was funding his care costs out of his savings.
10. By 13 March, Mr J’s capital had reduced to below the upper capital limit. This meant he was entitled to partial help from the Council with his residential care costs. The Council at first added that date as the start of the funding period.
11. Mr H says Mr K was dealing with Mr J’s finances. He continued to pay the care home direct, which they later believed had led to an overpayment.
12. At the beginning of April, Mr J received a rent rebate. This took his capital back over the upper capital limit. It meant that Mr J should have been paying fully his residential care costs between 13 March and 6 April (when his capital dropped back below the upper capital limit).
13. Mr H says the Council told them that it was easier if they continued to pay it, and it would pay the care provider. It advised it would sort this out with the care provider.
14. On 21 May, the Council wrote to Mr K advising that it would be invoicing Mr J for care costs it had paid between 13 March and 6 April.
15. Mr J died on 24 May. Mr J named Mr H as the executor of his will. Mr H says he spent months after Mr J died trying to clarify with the care provider what the final balance was on Mr J’s account.
16. On 19 June, the Council sent Mr K (to his home address) an invoice for care costs. This showed charges due for the period between 13 March and 23 May 2019.
17. On 11 September, the Council sent Mr K an amended invoice. This showed an ‘adjustment’; which was the removal of the charges for the 13 March to 5 April 2019 period. The Council sent this invoice, addressed to Mr K, to the solicitors acting on Mr H’s behalf, as executors of Mr J’s estate.
18. Mr H says, before my investigation, he was not aware of the 11 September invoice. He says the solicitors likely did not link this invoice to Mr J’s estate, as they had not been dealing with Mr K.
19. In December 2019 the care provider advised Mr H that Mr J’s estate was due a refund.
20. Mr H tried to clarify some issues with the care provider about the refund. At the end of January 2020 he asked to complain, as the matter was unresolved. In February, a member of staff apologised for the delay in responding.
21. At the beginning of March Mr H contacted the Ombudsman, asking to complain about the Council. We normally expect a complainant to first complain to a council. So we asked the Council to first consider it. It responded to advise it was not a complaint it could deal with, as Mr J’s care costs were a private arrangement.
22. We asked the care provider if it had responded to Mr H’s complaint. Its response advised it was ready to refund the balance. But it needed information from the Council to confirm its records were correct.
23. At the end of April the Council advised the care provider it had paid all it owed it in June 2019. This was for Mr J’s care costs from 5 April.
24. The Ombudsman’s investigation was delayed by the COVID-19 pandemic and a pause in our casework. When we did make enquiries, the care provider’s response included a statement to show Mr J’s account, with credits and debits.
25. I asked Mr H about the care provider’s account statement. He advised the payments agreed with their records. But he noted the care provider’s account did not tally with the fact the Council had told them that it would be billing Mr J for money it paid the care provider.
26. I asked the Council about this. Its response advised:
• it did not make any payment to the care provider for the 13 March to 5 April 2019 period, as it had received confirmation of Mr J’s changed circumstances before the payment was due;
• on 5 June 2019 it paid the care provider for the care fees it was responsible for – the period from 5 April;
• it had added the charges to Mr J’s account, for 13 March to 5 April, in error;
• it had had corrected its error in September 2019;
• there was no outstanding debt for the 13 March to 5 April period; and
• Mr J’s estate owed the Council for charges accrued from 6 April to the time of his death. It had not received any payment for these charges, despite reminders.
27. The Council sent the Ombudsman statements confirming this information.

Analysis

28. There is evidence of fault by the Council:
• incorrect advice to Mr H and Mr K about what to do about the period when the liability for costs changed;
• not advising Mr K or Mr H that its advice had changed;
• wrongly billing Mr K for a period when it had not, in fact, made any payment to the care provider;
• sending an amended bill to somebody who was not an executor (Mr K) to the wrong address. I accept, on the balance of probabilities, Mr H’s assertion he was not aware of this bill that had the correct amount owed;
• poor communications with Mr H about the issue; and
• incomplete advice to the Ombudsman when we asked it to consider a complaint – there were issues the Council could have investigated.
29. These faults will have caused Mr H unnecessary time and trouble and frustration.

Agreed action

30. I recommended that, within a month of my final decision, the Council:
• apologise to Mr H for the faults I have identified;
• pay Mr H £100 as a token acknowledgment of the time and trouble and frustration the faults will have caused him.
31. The Council has agreed to my recommendations.

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Final decision

32. I uphold the complaint. The Council has agreed to my recommendation, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman