Summary: There was fault by the Care Home which acted for the Council. It served notice to end Mrs Y’s placement due to non-payment of client contributions, when it should have liaised with the Council for repayment. There was also no right of appeal against a ban on Mrs Y’s daughter visiting. The Council will apologise, make a symbolic payment for avoidable distress and ensure the Care Provider makes amendments to the service user agreement and visiting policy.

The complaint

1. Ms X complained for her mother Mrs Y, whose care was arranged and funded by the Council at Gotton Manor Care Home (the Care Home). She complained the Care Home unfairly served an eviction notice on the basis of arrears which were disputed and after she had raised concerns about Mrs Y’s care. Ms X also complained the Care Home banned her from visiting her mother during the notice period.
2. Ms X said this caused both her and Mrs Y avoidable distress.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended.) the Care Home provided Mrs Y’s care under the Council’s powers and duties in the Care Act 2014. We can investigate the Care Provider. Any fault we find by the Care Provider, is fault by the Council.
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)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

7. I have considered evidence provided by Ms X and the Council, as well as relevant law, policy and guidance.
8. Ms X 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

Relevant law and guidance

9. Care home residents are entitled to have in-person visits. The law and guidance from the Care Quality Commission emphasises any restrictions placed on visitors should be exceptional, only imposed where a visit poses a significant risk to the health and safety or welfare of a person using the service or who is on the premises. Any restriction should be reviewed regularly to see if circumstances have changed and if in-person visiting can be allowed again.
10. The Human Rights Act 1998 brought the European Convention on Human Rights (ECHR) into UK law. Public authorities - and other bodies carrying out public functions must respect and protect individuals’ rights.
11. Article 8 of the ECHR says everyone has the right to respect for their private and family life and correspondence. This is a qualified right which means interference may be justified to protect the rights of others. Interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.
12. It is not for us to say a public body has breached the Human Rights Act – this can only be done by the courts. But we can decide whether or not a body has had due regard to an individual’s human rights.
13. In practical terms, councils will often be able to show they have complied with the Human Rights Act if they can:
• show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.
14. The Care Home’s visitor policy says conflict between staff and a family member or friend may be harmful to the adult’s wellbeing. If issues cannot be resolved, the home manager may place conditions restricting the visitor’s ability to enter the premises if the visitor poses a risk to staff, other residents or to the running of the service. Conditions will be proportionate and be kept under review.
15. Councils charge adults for care and support they arrange in a care home. Often, a council collects the charge from the resident by invoicing them directly. This Council has an arrangement with the Care Provider to collect the charge. While While Care and Support Statutory Guidance does not say the assessed charge can be paid direct to the care provider, we accept councils may use care providers as their agents for collecting the charge.
16. National guidance emphasises councils are responsible for paying the full amount of fees. (Care and Support Statutory Guidance, Paragraph 8.33)
17. The Council’s contract with Harbour Healthcare (the Care Provider which owns the Care Home) says:
• If a person refuses to pay or its staff identify a potential problem over collecting the contribution, it should tell the Council immediately.
• If a service user does not pay their contribution at the end of a payment period:
1. It will tell the Council the amount owed, and any action taken;
2. If the payment is not received by the end of the next four-week payment period, the Council must be notified in writing, stating the reason for non-collection and identifying the action taken to recover the debt;
3. It will continue to make efforts to collect the debt during the next payment period and be able to show that such steps have been taken;
4. If payment remains due, the outstanding amount and dates of non-payment, must be invoiced to the Council by the third payment period after the first point of notifying the Council.

What happened

18. Mrs Y lived in the Care Home for several years. The Council considered she had mental capacity to manage her finances. Ms X had a power of attorney to manage Mrs Y’s finances. The Council dealt with Ms X as Mrs Y’s representative.
19. The Care Provider’s service user accommodation and care agreement for Mrs Y’s placement identified the Council as the local authority acting for Mrs Y. It said:
• Mrs Y’s contribution towards her placement would be paid either to the Council or to the Care Home, depending on the agreement with the Council.
• The Care Provider could give four weeks’ notice to terminate the agreement, for instance if the fees were not paid in accordance with the terms set out in the agreement.
20. The Care Provider wrote to Ms X in August 2024. It said her mother’s assessed charge had increased from April, but she had not increased her payments resulting in a debt of just over £1000.
21. The Council’s records indicate Mrs Y was on the Council’s waiting list for allocation of a social worker. There was communication between the Care Home and Council about the outstanding monies in August.
22. The Care Provider gave Ms X and Mrs Y 28 days’ written notice to end the placement at the start of October. It said Mrs Y’s fees had not been paid in full, despite several reminders. It said it had told the Council, as the main funder of Mrs Y’s care.
23. The Council told us it could not say how much money was owed on the date the Care Provider gave notice. It also confirmed the Care Provider had informed Mrs Y’s social worker who accepted the notice, but they did not identify any other means of resolving the matter.
24. The Care Home’s records include a contemporaneous note of a phone call between the deputy manager and Ms X shortly after she (Ms X) received the notice letter. Ms X allegedly said “if the home manager has gone into Mrs Y and told her to leave, then she (the manager) had signed her own death warrant and to look out for her. Ms X said she will attend the home and sort it out.”
25. The Care Home’s manager reported Ms X to the police. A text from a police officer to the manager indicates the officer spoke to Ms X and gave her “words of advice”. There are no further records suggesting any further police involvement.
26. The Care Home’s manager, Ms X, Mrs Y and Mrs Y’s social worker met at the end of October. The manager’s note of the meeting said Ms X was talking over them. Mrs Y was told it was not her fault that she needed to move. Mrs Y said she was not happy with the idea of having to move.
27. The Care Home wrote to Ms X at the start of November. It said:
• The 28 days’ notice period had expired on 31 October;
• It had zero tolerance of abuse against its staff;
• Ms X had turned down offers of meetings, which meant the relationship had become untenable;
• It understood Ms X was refusing to move her mother to another care home, despite the notice period having lapsed;
• It would not evict Mrs Y, but it would not accept any abuse from Ms X, verbal, written, or in-person, so she was no longer welcome to visit the Care Home or enter the surrounding grounds;
• It encouraged her to facilitate a move for her mother.
28. There were email exchanges between the CQQ and the Care Home in October and November. The CQC asked some questions about Mrs Y’s care as a result of information it had received from Ms X and the Care Home responded.
29. When the Council replied to Ms X’s complaint it said:
• It would continue to accept the notice and would work with Mrs Y and key representatives to find an alternative care home;
• It would also work with Ms X, while recognising Mrs Y had the capacity to make her own decisions about her residence and finances; and
• It accepted moving care home was incredibly upsetting, so would seek to find an alternative home as efficiently as possible.
30. Mrs Y moved to another care home on 30 December.
31. The Council told us it had written off Mrs Y’s debt. The Care Provider told us the main reason it had served notice was because of a breakdown in relationship with Ms X.

Findings

Giving Mrs Y notice because of a debt and because of concerns raised about poor care

32. The Care Provider should not have issued a notice for Mrs Y to leave if she was not paying her charge. The Care Provider should have acted in line with the terms of its contract with the Council by referring the matter to the Council, so it could pay the debt. The Council could then have considered recovering the debt in the courts. The Care Provider’s failure to follow the correct procedure was fault for which the Council is accountable. It was also not in line with Care and Support Statutory Guidance which emphasises councils are responsible for the full fee. This caused avoidable distress to Mrs Y by having to move when she wanted to stay where she was.
33. The Care Provider’s service user agreement says it can evict residents for non-payment of charges. This may be the case for privately-arranged care, but Mrs Y’s care was council-funded. The service user agreement conflicts with the terms of the Council’s contract which reflects the legal position in statutory guidance: the Council retains liability for full payment of the fee if there are any unpaid arrears.
34. There is no evidence the Care Home served notice because of concerns Ms X raised about poor care. By the time Ms X raised those concerns with the CQC, the Care Home had already served notice.

Visiting ban

35. The Care Provider’s visiting policy allows it to place restrictions on visiting the premises where there is a risk to staff or resident safety or to the running of the service. This is in line with Article 8, which is a qualified right. It is also in line with guidance from the Care Quality Commission.
36. The parties dispute what was said. I have relied on the contemporaneous note taken by the home’s manager and have accepted their account. So in line with the visiting policy, it was acceptable to place restrictions on visiting because the manager considered Ms X’s behaviour placed staff at risk. There is no fault in the decision to ban Ms X from visiting.
37. However, the Care Provider’s policy and the actions taken did not give due regard to Ms X and Mrs Y’s right to respect for their private and family life because:
1. The visiting policy does not have a means of challenge or appeal mechanism. This was not in line with our expectations. This meant Ms X and Mrs Y lost out on a chance of an independent review of the decision.
2. The manager who made the decision to ban was heavily involved with the dispute. This gave an impression of unfairness.

38. Mrs Y moved to a different location and visits were only prevented for a short period and the Care Home supported a visit to Ms X in her home over Christmas. So the injustice is limited.

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Agreed Action

39. When a council commissions or arranges for another organisation to provide services, we treat actions taken by or on behalf of that organisation as actions taken on behalf of the council and in the exercise of the council’s functions. Where we find fault with the actions of the service provider, we make recommendations to the council alone.
40. We found fault with the Care Provider and make the following recommendations to the Council. Within one month of the final decision, the Council will issue:
• A written apology to Mrs Y for the distress caused to her by having to leave the Care Home and for the loss of opportunity to challenge the decision to ban visits from Ms X.
• A symbolic payment of £500 to Mrs Y reflect her avoidable distress of being asked to leave her home of several years against her will.
• An apology to Ms X for the loss of opportunity to challenge the visiting ban.

We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apologies I have recommended in my findings.

41. Within two months of my final decision, the Council will:
1. Ensure the Care Provider amends its service user agreement so that it does not say that council-funded residents’ placements can be terminated for non-payment of their assessed charge
2. Ensure the Care Provider’s visiting policy is amended so there is a right of review or appeal against any restrictions placed on a resident’s visitors.
3. Remind adult social care staff that they should not accept notice from care providers on council-funded placements if the reason is non-payment of the client contribution. Staff should escalate concerns to their managers if necessary,
42. The Council should provide us with evidence it has complied with the above actions.

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Decision

43. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman