Summary: Mr X complained his mother’s care home billed him for unpaid care charges two and a half years after his mother passed away. Mr X says this situation has caused distress and upset to him and his family. The Ombudsman found fault with the Council for failing to pay Mrs Z’s top-up charges despite placing her in a residential care home. The Council proposed to clear the debt owed to the care home. The Ombudsman considers this proposal suitable to reflect the fault in this case.

The complaint

1. Mr X complained his mother’s care home billed him for unpaid care charges two and a half years after his mother passed away.
2. Mr X says the care home told him this was for underpayments during Mrs Z’s time in the care home which Mr X disputes.
3. Mr X says the care home has not previously raised concerns about payments and this situation has caused distress and upset to him and his family.

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The Ombudsman’s role and powers

4. 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)
5. 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

6. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
7. Mr X and the Council had opportunity to comment on my draft decision.

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What I found

Relevant law and guidance

8. Where a council assesses a person’s needs and agrees to provide care, it should set a personal budget in a care and support plan. A personal budget is a statement which specifies the cost to the local authority of meeting eligible needs, the amount a person must contribute and the amount the council must contribute. (Care Act 2014, section 26)
9. Councils can charge people towards the cost of a care home placement. They complete a financial assessment, applying charging rules in regulations and guidance to determine how much a person pays. People who have over £23,250 (including property) pay the full cost. However, once their capital has reduced to under £23,250, they pay an assessed contribution towards their fees. (The Care and Support (Charging and Assessment of Resources) Regulations 2014; Care and Support Statutory Guidance 2014 (CSSG))
10. When carrying out a financial assessment, a council must ignore the value of a care home resident’s property for the first 12 weeks after their stay becomes permanent. This means the council will assist with funding of the placement for the first 12 weeks. Funding in this period is called a “12-week property disregard”. (CSSG paragraph 45(a), Appendix B)
11. A council must arrange or provide a person with a placement in their preferred care home if the care and support plan specifies the adult’s needs are met by accommodation of a specific type, the preferred care home is the same type as specified in the care and support plan and is both suitable and available. If the preferred care home costs more than the adult’s personal budget, then there must be another person will and able to pay the cost; this is called a “tup-up” cost. Guidance emphasises the requirement for real choice and that the council must ensure at least one care home is affordable within the personal budget. (Care Act 2014, section 30 and Care and Support and After-Care (Choice of Accommodation) Regulations 2014, regulations 2 and 3(2), CSSG Annex A paragraph 12)
12. Where a local authority is meeting needs by arranging a care home, it is responsible for contracting with the provider. It is also responsible for paying the full amount, including where a ‘top-up’ fee is being paid. Guidance does not directly address responsibility for making payments of the client contribution. But, in the context of third-party top-ups, Guidance says ‘the local authority is responsible for the total cost of the placement’. (CSSG, Annex A paragraph 28)
13. Any money owed to a council (whether a top-up or client contribution) is recoverable as a debt due to it. (Care Act 2014, section 69)

What happened

14. The Council placed Mr X’s mother, Mrs Z, into a care home on 22 June 2017 following her discharge from hospital. Mrs Z originally chose a different care home but because of no availability the Council placed Mrs Z in the resultant care home.
15. When the Council placed Mrs Z into the care home it funded her care under an extended 12-week disregard. The Council did not pay for Mrs Z’s client contribution or top-up cost. Mrs Z, and Mr X on her behalf, paid the care home.
16. On 22 January 2018, Mrs Z became a self-funder and agreed to a contract with the care home. Mrs Z, and Mr X on her behalf, paid the care home for the full cost of care.
17. By 22 January 2018, Mrs Z owed £1,103.61 to the care home from unpaid care charges.
18. Mrs Z, and Mr X on her behalf, paid for the full care costs to the care home from 22 January 2018 to 20 November 2018. Mrs Z overpaid on her care costs during this time by £614.29. This reduced Mrs Z’s underpayments to £489.32 up to 20 November 2018.
19. Mrs Z was granted end-of-life support from 17 November 2018 covering the cost of her care before she passed away on 27 November 2018. The care home did not charge for care from 21 November 2018 to 27 November 2018 but did charge for care, totalling £278.57, from 17 November 2018 to 20 November 2018.
20. On 15 April 2019, the care home refunded Mr X £928.57 for the end-of-life support care costs from 17 November 2018 to 27 November 2018.
21. The care home sent Mr X a bill for £1,417.89 on 30 April 2021. The care home said this cost was for unpaid care home charges for Mrs Z. The care home outlined the charges and payments received when justifying this balance of £1,417.89.
22. Mr X contacted the care home on 4 May 2021 to query the bill. The care home told Mr X he needed to pay the balance owed. Mr X asked for the invoices to justify this balance.
23. The care home sent Mr X the invoices on 21 May 2021. The care home told Mr X he now owed £1,518.40.
24. Mr X complained to the care home before bringing his complaint to the Local Government and Social Care Ombudsman (the Ombudsman).
25. The Ombudsman reviewed Mr X’s complaint and contacted the Council about the issues Mr X and Mrs Z experienced from 22 June 2017 to 22 January 2018.

Analysis

26. When the Council placed Mrs Z in the care home it was responsible for ensuring all parts of Mrs Z’s care were paid.
27. The Council assessed Mrs Z’s cost of care as £416.56 each week broken down into a client contribution of £145.67 each week and Council contribution of £270.89 each week. The Council has shown it paid this £270.89 contribution each week to the care home up to 22 January 2018.
28. The Council has also confirmed Mrs Z’s care records show a verbal agreement for a £25 a week top-up cost. The Council did not pay for this top-up cost.
29. Mrs Z chose a different care home, and the Council instead placed Mrs Z at this care home, Mrs Z had limited choice in her care arrangements. As such, the care home should not have charged the third-party top-ups to Mrs Z or the family. The Council should have covered the full cost of the Mrs Z’s care excluding her client contributions.
30. Mrs Z’s top-ups from 22 June 2017 to 22 January 2018 amounted to £764.28. The Council should have covered these costs. This was fault by the Council.
31. Mr X has shown payments from Mrs Z, or himself, from 22 June 2017 to 22 January 2018. The care home has registered all payments by Mrs Z, or Mr X. Despite these payments and the payments by the Council, Mrs Z’s account was underpaid by £1,103.61 up to 22 January 2018.
32. Had the Council paid the client contributions, the unpaid care costs would only have been £339.33 up to 22 January 2018.
33. On 22 January 2018, Mrs Z became a self-funder and the Council’s involvement in contributing towards her care costs ended. Since this point, Mrs Z overpaid for her care costs. But, the care home mistakenly refunded £650 in April 2021, as part of a total refund of £928.57, because of an administration error with the care home.
34. The further issues experienced resulted in Mr X owing £1,518.40 to the care home. Of this balance, £764.28 is from the top-up charges the Council was responsible for. While £380.08 are invalid or duplicated charges by the care home; I have addressed these charges in Mr X’s case about the care home. This means Mr X would still owe £374.04 in valid care charges.
35. The Council has offered to clear the whole debt owed by Mr X and resolve this matter directly with the care home. The Ombudsman considers the Council’s offer is suitable to reflect the Council’s fault in not paying the top-up charges. The Council’s offer also removes the final valid debt of £374.04 which reflects the inconvenience, frustration and distress Mr X has experienced in handling this matter.

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Agreed action

36. Within one month of the Ombudsman’s final decision the Council will:
• Clear the debt owed on Mrs X’s account with the care home and confirm this in writing to Mr X.

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Final decision

37. There was fault leading to injustice. As I consider the Council’s proposal a suitable remedy, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman