Summary: Mr H complains on behalf of Mrs H, his mother, who lives in a care home. He complains the care home has been paid twice, by Mrs H and the Council. The care provider has refused to refund Mrs H’s payment and the Council has not taken enough action to assist them to resolving the issue. We do not uphold the complaint.

The complaint

1. The complainant (Mr H) complains on behalf of his mother (Mrs H). Mrs H lives in a care home, originally as a self-funder, but now through a deferred payment agreement with the Council. He complains that:
• the care provider has been paid twice for a seven month period – first by Mrs H and then by the Council; but
• the care provider has refused to reply to Mrs H’s family’s request for a refund; and
• the family has alerted the Council about this, over several months, but it has not assisted to resolve the issue.
2. Mr H says Mrs H used up most of her savings to pay for the care, and the care provider owes her tens of thousands of pounds. They want the Council to assist them to get an accurate amount to be calculated and a refund to Mrs H of the money the care provider owes her.

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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 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)
4. 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

5. I considered evidence provided by Mr H and the Council as well as relevant law, policy and guidance.
6. Mr H and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legal and administrative background

Funding for care home fees

7. Funding for residential social care is means tested. A council might pay towards the cost of social care if a resident has savings below an upper capital limit. People with savings or income above the upper thresholds must fund their own care.
8. When a self-funder is in a care home and their money falls below the threshold they can apply to the council for funding.
9. We regard the starting point for when a council’s responsibility starts as when the service user contacts the council indicating a change of circumstances and therefore triggering the need for an assessment.
10. If the council completes its assessment within a reasonable timeframe, depending on the urgency of the case, the provider should refund in full any monies paid (councils will usually backdate any monies owing to the date the referral was made).
11. Where the council commissions services it becomes liable for paying the care fees to the private provider (and remains so whether the service user agrees to pay their contribution directly). 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.

12 week property disregard

12. In some circumstances a council can ignore the value of a residents’ home for the first twelve weeks of their time in a care home.

Deferred payment agreement

13. Under some circumstances a resident can choose to delay selling their home and can enter into a deferred payment agreement (DPA) with a council.

Top-up

14. If a resident’s preferred option costs more than a council would pay, the council can ask for a top-up from a third party as a condition of arranging the placement.

What happened

15. In the spring 2023 Mrs H moved to a care home. From then, Mrs H’s family paid her fees to the care home via a bank transfer.
16. Mrs H’s family first approached the Council in July asking about a DPA. The Council completed an initial financial assessment in August. The result was it decided Mrs H was eligible to a 12 week disregard period.
17. After the end of the disregard period (and after completing a best value search), in early November 2023 the Council advised the family they would need to make a top-up, with a DPA, for the Council to fund the care home Mrs H was living in.
18. The Council says Mrs H’s family then considered their options and in February 2024 signed a DPA.
19. In early March, the care home invoiced the Council for fees back to the end of Mrs H’s 12 week disregard period. The Council made the payment. It says it would have expected the care provider to refund Mrs H the fees she had already paid for the period.
20. Mr H says the care provider did not refund the payments Mrs H had made. In May he wrote to it asking for a refund. He copied the Council into his email, asking it to delay making further payments until the situation was resolved.
21. The Council’s finance team sought advice. It tried to raise a safeguarding issue. The Council’s safeguarding team’s view was the matter was a contractual dispute, not a safeguarding issue. The Council did however contact the care provider about Mrs H’s family’s concerns.
22. In August Mr H complained to the care provider. He copied the Council in. On receiving no response, he complained to the Ombudsman.
23. In response to our enquiries, the Council advised that:
• its view was it only entered into a contract with the care home in February 2024, when Mrs H’s family instructed it of their wishes;
• after the Ombudsman’s contact, it had been seeking to contact the care provider, hoping to receive from it a payment date. But it was informed the care provider had gone into administration.

Analysis

24. Our usual starting point for when a council is responsible for fees is from when a resident contacts it asking for an assessment. In this complaint, after Mrs H’s family contacted it, the Council carried out an assessment in a reasonable timeframe. There was then a gap of a few months before it set up its contract with the care provider. But the reason for that delay was mainly the result of Mrs H’s family considering their options about the best way forward for Mrs H. In those circumstances, I cannot say the Council could have taken earlier action about paying the care home fees.
25. Later, the Council did take reasonable steps to contact the care provider about the money owing to Mrs H, without success; perhaps linked to the reason the care provider has subsequently entered into administration.
26. I find no fault in the Council’s actions, so cannot uphold this complaint.

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Final decision

27. I find fault no fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman