Summary: Mrs X complained a council care home failed to provide a refund for the final invoice issued following her father-in-law passing away. Mrs X complained the care home has now revised the final bill to show a debit balance. We found fault with the Council failing to ensure accuracy of the billing for Mrs X’s father-in-law’s care. The Council agreed to apologise to Mrs X for the delays and apply a credit to the final balance of £500 as a gesture of goodwill to reflect the distress, inconvenience and frustration caused.

The complaint

1. Mrs X complained a council care home failed to provide a refund for the final invoice issued following her father-in-law passing away.
2. Mrs X complained the care home has now revised the final invoice to show a debit balance a year after issuing the previous final invoice.
3. Mrs X also complained the care home and council has failed to communicate effectively about this matter.

Back to top

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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)

Back to top

How I considered this complaint

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

Back to top

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. The Care Act 2014 enables a person who can afford to pay for their own care and support in full to ask the local authority to arrange their care on their behalf. In supporting self-funders to arrange care, the local authority may choose to enter into a contract with the preferred provider, or may broker the contract for the person.
11. If the Council does not agree or broker a contract, it should still assure itself that robust contractual arrangements are in place. This should clearly set out where responsibilities for costs lie and ensure the person understands those arrangements. Self-funders will have to pay for the costs of their care including, where they choose a setting more expensive than the amount in their personal budget, the top-up element of the costs of that setting.
12. Once a Council has assessed a person as having eligible care needs, under Section 13 of the Care Act 2014, the Council must meet the adult’s needs for care and support in certain circumstances. This is if the adult is ordinarily a resident of the authority’s area, the accrued costs do not exceed the cap on care costs and one of three conditions are met:
• The adult’s financial resources are at or below the financial limit following a financial assessment; or
• Despite an adult’s finances being above the limit, the adult has asked the authority to meet their needs; or
• The adult lacks capacity to arrange their own provision of care and support and no other person is authorised under the Mental Capacity Act 2005, or otherwise, to act on their behalf. (Care Act 2014, Section 18)
13. 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)

What happened

14. Mrs X’s father-in-law, who I will call Mr Z, was placed in respite care by the Council following time in hospital. Following expiry of Mr Z’s respite care, his family decided he should remain in the care home. Mr Z and his family asked the Council to complete an assessment of his finances. The Council assessed Mr Z to have finances above the capital limit.
15. The Council did not agree or broker a contract on Mr Z’s behalf with Mr Z paying the care home directly for his care.
16. During Mr Z’s time in the care home his capital dropped below the upper limit. Mr Z contacted the Council who completed a financial assessment and decided to partially fund Mr Z’s care home.
17. Mr Z passed away while residing at the care home. In November 2022, the care home sent a credit invoice to Mr Z’s estate of £1,769.26 confirming these funds were owed to Mr Z.
18. Mrs X provided the bank details for Mr Z’s estate on 16 November 2022.
19. Mrs X chased the care home for a refund of the credit balance in December 2022, January 2023, February 2023, March 2023 and April 2023.
20. In June 2023, Mrs X complained to the Local Government and Social Care Ombudsman (the Ombudsman) about the failure of the care home to refund the credit balance.
21. The care home contacted the Council for a statement about financial information in June 2023. The Council provided the information on the same date.
22. The Ombudsman liaised with the care home who confirmed in July 2023 it would provide a refund to Mrs X. The care home failed to provide this refund.
23. On 27 September 2023, the Council contacted Mrs X about the issues with the refund and promised to liaise with the care home.
24. On 27 October 2023, the care home contacted Mrs X about the balance on Mr Z’s account. The care home said:
• The Council was responsible for letting service users and their families know about their weekly contributions for care and about funding.
• The Council changed its fees constantly without any update to the care home. The Council has disputed this statement by the care home.
• It has now produced a breakdown of the full cost of Mr Z’s care against the payments received from the Council and Mr Z.
• It could confirm the credit invoice sent in November 2022 was incorrect.
• Following a breakdown of the full costs and payments, it found that Mr Z owed £866.69 due to underpayments for his care costs.

Analysis

25. When Mr Z was first in contact with the Council, it helped place Mr Z at his chosen care home despite his finances being above the capital limit. The Council says it did not enter into, or broker, a contract with the care home on Mr Z’s behalf. The Council says Mr Z did not ask it to meet his needs and he agreed his own contract with the chosen care provider. This meant Mr Z paid for his full care costs and top-up charges directly to the care home. As such, the Council was not responsible for Mr Z’s invoices or charges at this time.
26. When Mr Z’s finances dropped below the capital limit, the Council completed a financial assessment and partially funded his care. When Mr Z’s care become partially funded, the Council’s Section 18 duty became invoked. This was because the Council had assessed Mr Z as having eligible needs and his financial resources were below the financial limit. While Mr Z remained at his chosen care home on his pre-existing contract paying the Care Home directly, with the relevant top-up charges, the Council started to pay towards Mr Z’s cost of care. This meant it had now effectively commissioned the service for Mr Z.
27. When a council commissions services it is the authority which becomes liable for paying the care fees to the care provider. This responsibility remains the same even when the service user agrees to pay their contribution directly to the care home. The contract for the fees is therefore between the council and the provider, even if a separate contract outlining more general terms and conditions also exists.
28. In November 2022, the care home issued a final credit invoice for £1,769.26. Despite promises to do so, it has failed to provide this refund to Mrs X.
29. After a year of chasing by Mrs X, and the Ombudsman on her behalf, the care home produced a full breakdown of the account. This breakdown of Mr Z’s account showed the account to be in a debit balance of £866.69. Having reviewed this breakdown of account it is accurate. While the balance is correct based on current evidence, Mrs X has expressed concerns that she needs to check the payments detailed by the Council against her father-in-law’s bank statements.
30. Since the Council commissioned the service with the care home, it was ultimately the Council’s responsibility to ensure the billing and payments made were accurate. The Council failed to fulfil this responsibility. This was fault.
31. This fault is not localised to the final credit invoice produced on November 2022, but the entirety of the billing since the Council became involved in Mr Z’s care in September 2021. At this point, Mr Z only owed a nominal amount to the care home following a carry over of debt of £93.58 from the previous year. Since this point, Mr Z began to accrue a debt through top-up charges unknown to him because of poor management of his billing by the care home.
32. From the billing produced on Mr Z’s account, neither he nor his family would have been aware of the correct state of his account from September 2021 until 27 October 2023 when the care home produced the full breakdown of the account.
33. While it is not practical for the Council, holding ultimate responsibility, to check the bills on an on-going basis, it would be expected for some checks to take place. The Council has advised it is moving towards a model where it raises charges for client contributions directly with service users to reduce the risks of billing errors outside its direct control with care homes. This is an appropriate step to take to resolve the underling issue in this matter.
34. The mismanagement of the billing on Mr Z’s account was fault. This fault caused uncertainty from September 2021 until November 2022. Following issuing the final credit note in November 2022, it caused frustration and inconvenience for Mrs X chasing a fictitious credit balance for a year. And, the revision of the final bill has caused Mrs X distress and further frustration at now being told she owes the care home money for underpaid fees.
35. Since the care fees are valid, I cannot require removal of the fees. However, the Council should apply a credit to the fees of £500 to reflect the prolonged frustration, inconvenience and distress this matter has caused her.

Back to top

Agreed action

36. Within one month of the Ombudsman’s final decision the Council has agreed to:
• Provide an apology to Mrs X for the failure to ensure billing for Mr Z’s care fees was accurate, for production of the invalid credit note and delays in production of the correct final balance.
• Apply a reduction of £500 to the final debit balance for Mr Z’s care fees for the distress, inconvenience and frustration this matter caused.
• Confirm in writing that should Mrs X demonstrate, through provision of bank statements, missing payments on the breakdown of the account that it will apply these missing payments to Mr Z’s account.
37. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

38. There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman