Summary: The complainant, whom I shall call Ms C, complained on behalf of her (late) father, whom I shall call Mr F. Ms C complained about the way her father was charged for his residential care between 11 December 2019 and 31 January 2020. We found fault with the way the Council dealt with Mr F’s financial assessment and the way the care provider dealt with the signing of the contract. Both parties have agreed to apologise for this. Furthermore, the Council will provide a refund of some of the care home fees Mr F had to pay between 11 December 2019 and 31 January 2020.

The complaint

1. The complainant, whom I shall call Ms C, complained on behalf of her (late) father, whom I shall call Mr F. Ms C complained about the way her father was charged for his care between 11 December 2019 and 31 January 2020. She says:
• Her father changed from being a self-funding resident to a Council funded resident on 11 December 2019. However, the care home continued to charge the self-funding rate (£1,250 a week) until 31 January 2020.
• The care home said it could do this on the basis of a clause included in the contract that her mother had to sign. However, the care home had not explained this clause / arrangement to her mother in advance and the clause itself was not clearly written.
• During this period, the Council only paid the home the rate it usually pays for its clients at the home (£770).
• This meant her father had to pay: an assessed weekly contribution to the Council during this time (£382 a week), in addition to the difference (‘gap charge) between the care provider’s self-funding rate (£1,250) and the rate the Council was paying (£770). The total amount of the gap charge for the above period was around £3,678.

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The Ombudsman’s role and powers

Complaints about councils

2. We investigate complaints about ‘maladministration’ and ‘service failure’ by councils. 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. We 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)
3. 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)

Complaints about adult social care providers

4. We also investigate complaints about adult social care providers from people who arrange and pay for their care privately (self-funders). We decide whether the care provider’s actions have caused an injustice, or could have caused injustice, to the person making the complaint. (Local Government Act 1974, sections 34B and 34C)
5. If an adult social care provider’s actions have caused an injustice, we may recommend a remedy. (Local Government Act 1974, section 34H (4))
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 considered the information I received from the care provider and the Council. I also interviewed the Council officer who investigated Ms C’s complaint against the Council. I shared a copy of my draft decision statement with Ms C, the Council and the care provider, and considered any comments I received before I made my final decision.

Relevant legislation 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. People with eligible needs and financial assets above the upper capital limit of £23,250, may ask the local authority to meet their residential care needs, rather than organising this themselves. This could be for a variety of reasons such as the person finding the system too difficult to navigate or wishing to take advantage of the local authority’s knowledge of the local market of care and support services. Where the person asks the local authority to meet their eligible needs, and it is anticipated that their needs will be met by a care home placement, then the local authority may choose to meet their needs, but is not required to do so. Care and Support Statutory Guidance 2014 (CSSG))
11. Government guidance for care home providers states consumer law requires the provider to treat residents and their representatives fairly; provide key information upfront so residents can make informed decisions; and ensure that the wording of contracts and terms are: “simple, clear and informative, so that residents and their representatives can genuinely understand their rights and obligations before agreeing to them”. They should be “written in plain and simple language that an ordinary person would understand”.

What I found

12. The Council carried out a financial assessment in June 2019, which established that Mr F had £38,900 in capital. This meant that, because his capital was above the threshold, he would have to pay for the full cost of his care until the date his capital would reduce to below £23,250 (hereafter referred to as the ‘capital drop date’). The Council informed Mr F about the outcome of the assessment in mid- June 2019 and said he should contact the Council “if his capital drops below the £23,250”.
13. Mr F went into the care home in early August 2019, initially for residential respite care (a short break). The temporary care placement was arranged by the Council. During this time, Mr F had to pay for the full cost of his care. As the Council had arranged the placement, Mr F paid the Council a reduced rate for the care home, rather than the higher rate that private self-funding residents have to pay the care home.
14. While in residential care, Mr F’s wife contacted the Council in July 2019 to ask for another financial assessment, as she believed her husband was approaching the capital threshold. Following a conversation, the Council advised Mrs F that ‘once she updates all his finances, she will need to call (…) and arrange a further visit and we will look at the capital drop date”.
15. The Council called Mrs F on 30 July 2019 and a team manager offered her various appointments for a visiting officer to carry out a financial reassessment and collect all relevant information. The Council says Mrs F did not accept this offer and said she would go to the Ombudsman instead.
16. However, Mrs F told the Council on 8 August 2019 that she would like a new Financial Assessment as she felt her husband’s capital was going under the £23,250 threshold. There is no evidence to indicate the Council progressed this request.
17. The Council carried out a needs assessment with Mr F on 19 November 2019, followed by a best interest decision, which was that Mr F’s placement at the home should become permanent. A start date of 11 December was agreed. This meant that the Council should carry out an official financial assessment for permanent residential care. However, it only asked for a financial assessment to be carried out for permanent residential care on 24 December 2019. The assessment itself only started on 22 January 2020.
18. The social worker did have a discussion on 20 November 2019 with the Finance Team about the level of Mr F’s capital in relation to his current contribution to his temporary residential care placement. The team said that (based on information it had collected in the past) it believed that Mr F’s capital was still above the threshold, but it emphasised clearly that this was only an estimate.
19. The Council sent a letter to Mrs F to say her husband’s capital was still above £23,250. The social worker told her that Mrs F would soon receive some invoices. The social worker advised Mrs F that once she had paid these, and it appeared her husband’s capital had dropped below £23,250, that Mrs F should contact the Council. It said he could request a new financial assessment if his capital falls below the threshold.
20. It was difficult for Mrs F to determine when her husband’s capital would drop to £23,250, because there was an unreasonable delay of two months by the Council in sending her invoices for his care. This meant there was a delay in her being able to pay for this. The dates of the invoices were as follows:
• Date of invoice 25 November 2019: £4,628 for the period 7 August to 27 September 2019, which Mrs F paid on 5 December 2019.
• Date of invoice 23 December 2019: £2,357 for the period 28 September to 25 October 2019, which she paid on 2 January 2020.
• Date of invoice 20 January 2020: £2,172 for the period 26 October to 22 November 2019.
21. The Council’s record also states: “[permanent] placement to be arranged via the Council”. Mr F would pay the full cost of the care until his capital would drop below the threshold. As his placement would become permanent, as of 11 December 2019, it meant there would have to be a new contract in place. The above indicated that the Council would put a contract in place between the Council and the care home, for Mr F’s permanent care placement, which would start on 11 December 2019.
22. However, the social worker told the Finance Team on 17 December 2019 that the Council’s Brokerage Team advised that the Council could only put a contract in place after Mr F’s capital had dropped below £23,250. One week later, the social worker made a formal request to the Finance Team to carry out a financial assessment for permanent residential care to determine when Mr F’s capital would drop to £23,250.
23. It took until 22 January 2020 before a finance assessor visited Mrs F to carry out and complete a Financial Assessment for Mr F’s Permanent Residential Care. During this time, there was no contract in place for Mr F’s care. The Council’s contract for Mr F’s temporary care had stopped on 11 December 2019 and no new contract had been put in place. As such, the Council told Mrs F to enter into a private contract with the care provider until her husband’s capital would reduce to £23,250.
24. The care provider says it does not generally show or discuss particular sections of its contract with a client, before they are asked to sign it. However, the provider is always happy to discuss points the client may not have understood, in more details. The care provider says that it gave the contract to Mrs F to sign and told her to read it.
25. Ms C says that, instead of expecting her mother, an elderly lady, to read a 21-page contract on her own and sign it the same day, the care provider should have:
• Highlighted and explained some of the key important issues mentioned in it, especially the gap charge, which is important to know for anyone entering as a private resident, and
• Told her to take it home with her, perhaps consult her family or others, and then sign it, rather than expect her to read, understand and sign 21 pages there and then.
26. Ms C says her mother felt she had no other option anyway, given the situation, to sign it. The contract meant the weekly fee for Mr F’s care was £1,250 a week from 11 December 2019 onwards, instead of the £770 a week it would have cost if the Council had arranged the placement on 11 December 2019.
27. At the end of January 2020, the Council completed its financial assessment and concluded that Mr F’s capital reached the £23,250 threshold on 11 December 2019. It also calculated that, considering Mr F’s income and expenses, Mr F’s contribution towards his care should only be £382 a week. As such, the Council subsequently informed the care home that the Council would pay for Mr F’s care home fees from 11 December 2019 onwards, at the rate the Council usually pays for such placements. This meant that, from 11 December 2019:
• Mr F would pay the Council £382 a week
• The Council would pay the care home £770 a week.
28. As Mrs F had already paid the care home for Mr F’s contribution of £1,250 for the period 11 December 2019 – 31 January 2020, the Council asked the care provider to reimburse those fees. However, the care home only paid back an amount of £770 a week to Mr F, not £1,250. It referred to its contract, which said the client should contact the home manager at least three months before they think their capital may reach the threshold, because it takes time for the Council to complete a financial assessment. It also said:
• 4.1: “Full fees are payable until we have an agreement with your local authority or the NHS to fund your care”
• 4.3: “If any of the local authority funding covers any period for which you (…) have already paid in full then, except to the extent (if any) that we are legally bound to refund more, we will refund you (…) an amount equal to the amount that the local authority pays us for that period”.
29. This meant that, in the end, Mr F has paid the following for his care, between 11 December 2019 and 31 January 2020:
• £382 a week to the Council.
• A ‘gap charge’ of £480 a week to the care provider (£1,250-£770), £3,678 in total.
30. The Council told me that the gap charge forms part of the care provider’s self-funding contract, up until the point in which the Council notifies the care provider that a capital drop has been agreed. The Council says the care provider is within its rights to apply this and to continue the gap charge until the point at which the Council notifies the care home of the outcome of the financial assessment.

Analysis

31. Ms C’s complaint relates to care home costs from 11 December 2019 to 31 January 2020. Ms C believes the Council did not act properly, as a result of which her father was overcharged.
32. In its charge letters, the Council tells clients who have capital above £23,250, that they should contact the Council “if their capital drops below £23,250”. However, as it generally takes time for the Council to complete a financial assessment, it would be better if it would advise a client to contact the Council several weeks before the client thinks their capital will reach this threshold. This will provide the Council with more time to complete a financial assessment and, if needed, inform the care provider when it will take over funding responsibilities for the client. This is especially important where a care provider has a term in its contract in relation to a ‘gap charge’.
33. On 8 August 2019, Mrs F told the Council that she would like a new Financial Assessment as she felt her husband’s capital was going under the £23,250 threshold. There is no evidence to indicate the Council progressed this, which is fault. If the Council had carried out a financial reassessment at the time, it could have provided an estimate as to when Mr F’s capital would likely reach the £23,250 threshold.
34. The Council decided on 19 November 2019 that Mr F’s placement should become permanent, and this should start from 11 December 2019. However, it took until 24 December, until the Council asked its finance team to carry out a financial assessment for permanent residential care. It took another one month before the financial assessment started. This was an unreasonable delay, which is fault.
35. These (August and November) were two missed opportunities to calculate Mr F’s capital drop date, in a timely manner. I have not seen evidence that the delay in calculating Mr F’s capital drop date has been due to fault by Mr F or his family.
36. A factor that made it more difficult to determine the capital drop date was the unreasonable two months delay by the Council in providing invoices to Mrs F, which is fault.
37. Mr F’s initial temporary placement was arranged by the Council, who put a contract in place between the Council and the care provider for Mr F’s temporary residential care. The Council said in December 2019 that it would not put a contract in place for Mr F’s permanent residential care, until his capital had been reduced to £23,250. While the Council does not have to put a contract in place for those who have more than £23,250 in capital, councils are able and allowed to do this. I found the Council should at least have considered whether it should have done this in this particular case, because the Council knew Mr F was very close to reaching the threshold. I did not see evidence in the records that show the Council considered in December 2019 whether it should use its discretion and put a new contract in place from 11 December 2019, when its old contract expired. This is fault.
38. While the Council has no impact on the terms a care provider includes in its contracts, it should consider the possible implications they may have for the Council or its clients. In effect, if a client at this particular care home has to pay a ‘gap charge’ due to fault / delay by the Council in carrying out and/or completing a financial assessment, the Council should remedy any injustice caused to such clients as a result, which means it should pay the gap charge. Even when the client does not make a complaint about this.
39. I found there was fault in the way the Council dealt with Mr F’s case, which resulted in a delay in calculating his capital drop date. As a result, the Council should refund the gap charge Mr F had to pay the care home.
40. Ms C also complained the Care Home enforced unfair contract terms that they were not aware of when they signed the contract, even though the care provider was accepting payments from the Council.
41. I found the ‘gap payment’ was sufficiently explained within the contract. It is up to a resident, or their representative, to ensure that they read the contract, and understand its contents, before they sign it. However, within these circumstances, the care provider should have allowed Mrs F an opportunity, and advised her accordingly, that she could take the contract with her and discuss it with family if needed, before she signs it. The care provider should apologise for this.

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Agreed action

42. I recommended that, within four weeks of my decision, the Council should:
• Apologise to Ms C and her mother for the faults identified above, and the distress these have caused. It should pay each of them £200.
• Refund the amount Mr F had to pay the care provider as ‘gap payment’.
• Review the transition process through which privately funded residential care residents become council funded, to ensure financial assessments start in a timely manner and decisions are made in a timely manner to avoid a reoccurrence.
• Review if any other Council clients have had to pay a similar gap payment at this home, due to fault / delays by the Council.
• Review the process through which it generates and issues invoices to ensure clients receive these in a timely manner.

Recommendations for the Care Provider

43. Within four weeks of my decision, the Care Provider should:
• Provide a written apology to Ms C and Mrs F for the faults identified above.
• Share the lessons learned with relevant staff.
44. The Council and care provider have told me they have accepted my recommendations.

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Final decision

45. For reasons explained above, I decided to uphold the complaints against the Council and the care provider. I am satisfied with the actions the Council and care provider will carry out to remedy this and have therefore decided to complete my investigation and close both cases.

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Investigator's decision on behalf of the Ombudsman