Summary: We upheld Mrs X’s complaint. There was a failure to give her timely information about her late mother Mrs Y being in arrears of care fees and this may have affected the date the local authority calculated Mrs Y’s assets to have fallen to the funding threshold. The Care Provider will write to the local authority explaining what has happened, apologise to Mrs X and make her a symbolic payment of £100 for her avoidable confusion and time and trouble complaining.

The complaint

1. Mrs X complained the Care Provider deducted money from an overpayment of her late mother’s (Mrs Y’s) care fees to pay an old debt which the family did not know about.
2. Mrs X said this caused her avoidable distress, time and trouble and caused the estate a financial loss.

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The Ombudsman’s role and powers

3. 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. (Local Government Act 1974, sections 34B and 34C)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
6. If we are satisfied with an organisation’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

7. I considered the complaint to us, the Care Provider’s response and documents described in this statement. I discussed the complaint with Mrs X
8. Mrs X and the Care Provider 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

What should have happened

9. Regulation 19 of the Care Quality Commission (Registration) Regulations 2009 says care providers need to give timely and accurate information about the cost of care. It says they must give the person or their representative written terms and conditions and as far as is reasonably practicable, before the start of services. Providers must also tell people about any fee increases.
10. We take account of Guidance from the Consumer and Markets Authority (CMA) UK care home providers for older people – advice on consumer law (December 2021). This stresses the importance of up-front information about fees even before a resident moves in. Paragraph 3.29 explains the importance of providing a copy of standard terms and conditions at the latest by the time they agree to have a care needs assessment.

What happened

11. Mrs X managed the late Mrs Y’s finances as her attorney.
12. I asked the Care Provider for a copy of the signed contract for Mrs Y’s care. The Care Provider disclosed three identical copies of a signed contract dated June 2021. It did not provide a signed contract for 2014 when Mrs Y first moved into the care home. The June 2021 contract says fees are payable monthly in advance on the first day of each calendar month.
13. The Care Provider sent a standard letter to Mrs X each year setting out the increase in fee. The letter included a template instruction to send to the bank to amend the standing order with the new fee. The instruction said the fee was payable on the first day of each month.
14. Mrs X emailed the Care Provider in April 2022 asking why it had deducted £3178 from an overpayment on the account at the time of Mrs Y’s death.
15. The Care Provider sent several emails in May in reply to Mrs X’s queries saying:
• The local authority started funding Mrs Y’s care on 4 August 2021
• The account was in arrears from the start – the fee due on 1 June 2014 was £2504.67 and the Care Provider received the standing order on 7 July 2014.
• With slight differences in the yearly fee increase, the arrears reached £2762 in April 2017 and remained there until the local authority started funding.
• The account showed a zero balance at times because payment was received at the end of the month rather than the usual first day and this temporarily brought the account up to date. It was sorry it did not chase the arrears, but it did not do so because the payments were regular, although a bit late. For example, the fee for 1 to 30 April 2018 was due on 1 April. The account was already a month in arrears then. The payment received on 30 April put the account in credit but then the May fee went out the following day which put the account bank in arrears and this continued until the end.
16. The Care Provider sent Mrs X a full statement of account in May. It also explained the local authority funded Mrs Y’s care for an earlier period as well as from 4 August 2021. It went on to say on these occasions, the company charged the private fee and then when the local authority confirmed it was funding, the company refunded the private fee.
17. In the middle of July, Mrs X wrote to the Care Provider saying the local authority refused to accept that Mrs Y’s account should have been £2762 less than it actually was due to the Care Provider ‘springing an underpayment on the estate seven years late.’
18. Mrs X also asked the Care Provider for an invoice for £2762. She said the statement of account did make sense, but the Care Provider had not explained why it had not told her about the arrears sooner.
19. Mrs X told me she understood what had happened and accepted the Care Provider’s figures. She said the Care Provider’s failure to tell her about the arrears at the time meant she lost the opportunity to pay them at the time and this meant the local authority calculated the start date for funding about a month later than should have been the case. She told me the local authority refused to backdate the funding start date and so the estate had a financial loss. Mrs X said if she had been aware of the debt she would have ensured it was paid at the time and so council funding would have started a few weeks earlier than it did. Mrs X told me she also thought the debt was statute barred.
20. The Care Provider told me:
• It received regular payments and these were allocated to the account and the deficit simply moved forward, but was current at the date of death and not statute barred.
• It did not send monthly invoices for permanent residents.
• It had only charged for services provided and so did not consider there was nay injustice. It had already apologised.

Findings

21. There was fault by the Care Provider. It should have ensured Mrs X signed a contract for Mrs Y’s care and gave her a copy when Mrs Y first moved into the care home, or earlier. The Care Provider therefore did not act in line with Regulation 19 as I have set out above, or in line with good practice as set out by the CMA. However, there is a signed contract dated June 2021 and yearly letters advising of fee increases which explained fees were due on the first of each month. So Mrs Y was made aware fees were due on the first day of the month even though she was not aware of the arrears because the Care Provider did not tell her.
22. Mrs X did not know there was a rolling arrear on the account until Mrs Y’s death. The Care Provider’s communication was poor and it should have advised Mrs Y of the debt.
23. The Care Provider’s lack of communication meant Mrs X was denied the opportunity to make sure the account was up to date, and this may have affected the date the local authority decided Mrs Y was entitled to council funding towards the cost of her care. I cannot say there is a financial loss on a balance of probability because it is for the local authority to determine the date from which it will fund a person’s care. But the Care Provider’s failure to tell Mrs X promptly that her mother’s account was in arrears caused uncertainty about this.
24. It is not for the Ombudsman to say whether or not a debt is statute-barred. This is for the courts.

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Agreed action

25. The Care Provider will, within one month of my final decision:
• Write to the local authority explaining the chronology of events as set out here and providing it with a copy of my final decision
• Pay Mrs X £100 for the avoidable confusion and time and trouble complaining and apologise.
26. The Care Provider should provide us with evidence it has complied with the above actions.
27. Mrs X can then ask the local authority to backdate the start date for funding. If she is unhappy with the local authority’s response, she needs to use the local authority’s complaints procedure.

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Final decision

28. We upheld Mrs X’s complaint. There was a failure to give her timely information about her late mother Mrs Y being in arrears of care fees and this may have affected the date the local authority calculated Mrs Y’s assets to have fallen to the funding threshold. The Care Provider will write to the local authority explaining what has happened, apologise to Mrs X and make her a symbolic payment of £100 for her avoidable confusion and time and trouble complaining.
29. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman