Summary: Mrs Y complained about a lack of clarity with the charges for her father’s Mr X’s care at the care home. The care provider was at fault as it delayed issuing a contract which led to a larger than expected care bill and which caused Mrs Y confusion over what was owed. The care provider has offered to reduce the debt by 50% which is satisfactory way to resolve the complaint.

The complaint

1. Mrs Y complains the care provider issued her with a contract for her father Mr X’s care in November 2021 but then billed her at a higher rate and in April 2022 issued a new contract requiring a higher rate of fees backdated to August 2021. This has left her paying higher than expected fees for her father’s care and caused her confusion and frustration.

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The Ombudsman’s role and powers

2. 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. I have used the term fault to describe such actions. If they have caused an injustice we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
3. 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

4. I have considered the information provided by Mrs Y and discussed the complaint with her on the phone. I have considered the information provided by the care provider and third party information provided by Liverpool City Council relevant to the complaint.
5. I gave Mrs Y and the care provider the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

Relevant law and guidance

6. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014, and the Care and Support Statutory Guidance 2014. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
7. The rules state that people who have savings over the upper capital limit (currently £23,250) are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
8. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
9. There are two types of LPA: property and finance, which gives the attorney power to make decisions about the person’s finance and property matters, and health and welfare which gives the attorney power to make decisions about the persons health and personal welfare.

What happened

10. Mr X lived at home with his wife Mrs X. Mr X has a diagnosis of dementia. In June 2021 the Council suggested a period of respite for Mr X as Mrs X was finding it difficult to manage his care and support needs.
11. The Council confirmed with the care home, which Mrs Y had selected, that it had availability but the care home required a £84 a week top up. The Council noted the care provider said Mrs Y thought Mr X would be a self-funder and the family were looking into Mr X’s finances to establish his savings. The care provider advised the Council its self-funder fee was £918.75 a week.
12. Mr X moved into the care home in late June 2021 for a six week respite placement and the Council issued Mrs X with a financial assessment form.
13. In mid-July 2021 Mrs Y emailed the care provider as she thought Mr X may need support on a permanent basis as Mrs X would not be able to meet his needs. She asked the care provider for information on its fees. The care provider responded ‘cost of self-funding EMI placement is £918.75 a week or if funded by the local authority the third party top up fee would be £84 a week. You would need to discuss a permanent placement with your allocated social worker in the first instance if [Mr X] was to be funded by the local authority, if self-funding then we can discuss a permanent placement ourselves’.
14. Mrs Y completed and returned the financial assessment form to the Council in late July.
15. The Council carried out a reassessment and mental capacity assessment in early August 2021 and confirmed it was in Mr X’s best interest to remain in the care home in a permanent placement. In August 2021 Mrs Y got LPA for Mr X’s property and finances.
16. In mid-August 2021 the Council completed a financial assessment which showed Mr X was over the financial threshold. The Council noted it would remove its contract with the care provider. The Council emailed Mrs Y that as Mr X had over £23,250 he was responsible for paying the full cost of his respite placement at £592.82 per week from late June 2021 to early August 2021 when the placement became permanent. It said it would provide a statement of the charges. It did not provide any information on what the cost of the permanent placement would be.
17. In early November 2021 the care provider sent Mrs Y a copy of its service user’s handbook. This stated the date of commencement of the contract as late June 2021 at a rate of ‘£678.82 (£594.22 LCC and £84 top up fee)’. The funding source was detailed as social services.
18. In mid-January 2022 the care provider contacted the Council as its payments for Mr X’s care had ceased. It asked the Council to confirm if there had been a change in funding. The Council confirmed Mr X was a self-funder and should have been since August 2021, when the placement became permanent.
19. In mid-February 2022 the care provider wrote to Mrs Y. It confirmed Mrs X should be privately funded from 20 August 2021. This generated a balance of £24,102.75 owed on the account as the weekly private rate was £918.75 a week. In a letter issued later that month it explained the rate would be increasing to £987.66 per week from 1 April.
20. Mrs Y asked the care provider to explain why the rate was so much higher than that set out in the contract she was provided. The care provider explained how it calculated the different rates for Council funded care and the private rate and in April 2022 the care provider issued a new contract to Mrs X at a weekly rate of £987.66 which Mrs Y agreed to pay from April 2022.
21. Mrs Y was unhappy the care provider issued her a contract for a lower rate in November 2021 and said she expected the care provider to honour that contract. The care provider responded in July 2022. It said Mr X ceased to be funded by the Council in August last year and as a privately funded resident was charged the privately funded rate. It requested Mrs Y settle the arrears on the account and pay the correct rate going forward. It advised that without any agreement it would have no option but to serve notice.
22. In mid July 2022 the care provider confirmed Mr X owed £10,125.89 which was due for payment.
23. In mid October 2022 the care provider contacted the social worker to advise that Mr X’s family had not been paying the self-funder rate and a debt had built up. It asked the social worker to raise this with the family.
24. The social worker spoke to Mrs Y who considered Mr X was approaching the financial threshold. The social worker sent Mrs Y a charging leaflet and information about the debt. They explained the placement would require a top up fee of £95 a week as it cost more than the Council would pay for a residential placement. If the family could not afford this it should let the Council know as Mr X may need to move care homes.
25. The social worker emailed the care provider in late October 2022. They said when Mr X ‘was assessed as a self-funder, someone from the Council should have informed you at the time of this, so apologies that it was not done. I’ve only just discovered myself that our residential charging team (who carry out financial assessments and who declared [Mr X] is a self-funder) do not inform families of the outcome of assessments unless they are eligible for LA funding. They presumed his social worker at the time would do so and possible they also presumed the social worker would inform yourselves’. They said they had raised this with their manager. The Council took over Mr X’s funding for care from late October 2022 as his savings fell below the threshold.
26. Mrs Y owes the care provider £6470. Mr X moved out of the care home in January 2023.

Findings

27. Mr X moved into the care home in late June 2021 and was charged for respite until August 2021. The care provider did not provide Mr X with the service user handbook until November 2021. This delay was fault. The handbook detailed Mr X’s care fees based on the Council contracted rate. This was based on the information the care provider had at that time as it had yet to be informed by the Council that Mr X should be self-funding his care.
28. The Council determined Mr X should self-fund his care in August 2021 and ended the contract with the care provider. The Council did not inform the care provider of this. However, it was not until January 2022 that the care provider chased this up with the Council and was told Mr X should be self-funding his care as a private resident. This delay in clarifying the costs was fault. By this time Mrs Y had been given three different figures for the potential weekly care costs.
29. The care provider notified Mrs Y of the private funder rate in February 2022 but failed to provide a new contract until April 2022. These faults caused Mrs Y confusion and frustration.
30. Mrs Y queried the difference between the Council funded rate and the private rate. The care provider explained how and why it charged different rates. There is no fault in the way it calculates the different rates.
31. The Ombudsman looks to put an individual back to the position they would have been in if the fault had not occurred. Mr X’s family chose the care home and were aware of the care provider’s private funder rate when the placement was made permanent, although at that stage they were not aware Mr X would be required to self-fund his care. Mr X has received the care and the Council has correctly assessed that he was liable of the full cost in line with the Care Act and associated regulations.
32. The delay in providing clear information about the fees meant they were not in a position to make an informed decision sooner about whether Mr X should remain at the care home and led to a large unexpected care bill. However, when Mrs Y was made aware of the charges she agreed to pay the private rate and Mr X remained at the care home. So I cannot say they would have acted differently had they known about the care costs sooner.
33. As a gesture of goodwill, the care provider has offered to reduce the debt by 50% to £3,396.82. This is more than we would recommend and is sufficient to remedy the injustice to Mr X.

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Agreed action

34. Within one month of the final decision on this complaint the care provider has agreed to write to Mrs Y to confirm it has reduced the debt owed by 50%.
35. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation. There was fault causing injustice which the care provider has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman