Summary: The care provider failed to notify Mr X promptly of the fees payable for Mrs A’s care once she became self-funding. Mr X paid the outstanding fees but moved Mrs A to another, less expensive, home as soon as he could. The care provider should reimburse the difference between the fees for the appropriate period until Mrs A moved.

The complaint

1. Mr X (as I shall call him) complains that the care provider gave him incorrect information about the fees when his mother Mrs A became a self-funder. He says he would have moved her to a less expensive home sooner had he known the actual cost and made different investment arrangements.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers and decide whether their actions have caused injustice, or could have caused injustice, to the person complaining. I have used the term fault to describe this. (Local Government Act 1974, sections 34B and 34C)
3. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

Back to top

How I considered this complaint

4. I considered all the information I received from Mr X, from the care provider and from the local council. Both Mr X and the care provider had the opportunity to comment on an earlier draft of this statement before I reached a final decision.

Back to top

What I found

Relevant law and guidance

5. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. Part 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
6. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
7. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
8. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees.
9. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
10. Regulation 19 says “Where a service user will be responsible for paying the costs of their care or treatment (either in full or partially), the registered person must provide a statement to the service user, or to a person acting on the service user’s behalf—

(a) specifying the terms and conditions in respect of the services to be provided to the service user, including as to the amount and method of payment of fees; and

(b) including, where applicable, the form of contract for the provision of services by the service provider.

The statement referred to … must be—

(a) in writing; and

(b) as far as reasonably practicable, provided prior to the commencement of the services to which the statement relates.”

What happened – the background

11. Mrs A was admitted to the care home in March 2022 after some time in hospital. The NHS funded her care initially then the local council began funding her placement from June onwards.
12. The council carried out a financial assessment and wrote to Mr X, who was acting for Mrs A, in November 2022. It said, “From 12 October 2022 your charge for your care and support is £186.54 per week. Details of how your weekly charge has been calculated is explained on the Financial Assessment Breakdown. Please note that from 04 January 2023, Kent County Council will stop funding your placement and you will be required to pay privately for the cost of your care. The price you pay the home directly will be different. Please therefore contact them to discuss this…. If your property sells before 04 January 2023, you must contact us as soon as possible.”
13. The council also wrote to the care home. It said, “The agreed weekly price for this Long-Term 12-Week Property Disregard placement will be £820.66 and the placement started on 12th October 2022, with a planned end date of 4th January 2023”.
14. The care home changed ownership in October 2022. The current care provider says some correspondence was still being sent to the previous care provider. The letter from the council was addressed to the care home but sent by email.
15. Mrs A’s house sold in December. There is a note on the council’s files that Mr X called the finance office to notify them.

What happened – the fees

16. Mr X says when he was at the care home in December, he asked at the reception what the self-funding fees would be. He has provided a copy of a ‘post-it’ note which he says he was given, which says “£876 p/week, (the name of the unit at the home)”. On the basis of that information, he set aside an amount which would fund Mrs A’s care for a year and placed the remainder of the proceeds of the sale of her house into a fixed-term one year account.
17. The new care provider did not send any invoices to Mr X. It was not until April that the new care provider realised no fees had been paid either by the council or by Mr X. The care provider asked the council for evidence of the start and end dates for its funding of Mrs A’s care.
18. The care provider discussed the fees with Mr X. It said the weekly fees for Mrs A as a self-funder were £1300 until the end of March and then increased to £1400. The care provider issued a backdated invoice for £15971 for the period from January to the end of March and a further invoice for £6066 for April.
19. Mr X replied to the care provider with a copy of the ‘post-it’ note he said he had been given in December. He said “Based on this, I have invested the bulk of the proceeds of the sale of my mother’s house in a one-year fixed account that will not mature until 16/01/2024, some eight and a half months away. I placed sufficient funds, or so I thought in an easy access account to cover the first year, some £45,500. Now I find due to the incorrect information given, I will have a shortfall of some £37000.”
20. The care provider responded, “As discussed, I can only apologise that you were given the wrong information back in December 2022. Reception are not authorised to discuss fees, be it private, Health or KCC funded. Any enquiry regarding fees should have been passed to management to confirm and this information would have then also been confirmed officially in writing by email/letter.” The care provider’s sales clerk said she understood Mr X might be able to withdraw the money early from the fixed-term account but there might be a penalty.
21. In response to enquiries from the care provider, the council confirmed it ceased funding Mrs A’s care on 4 January 2023.
22. Mr X moved Mrs A to another home on 13 May. He says someone from the care provider telephoned him to offer cheaper rates but that did not address his complaint. He paid the outstanding fees.
23. Mr X complained to the Ombudsman in the absence of a formal response to his complaint from the care provider. He said he would have looked for a less expensive home at the outset had he known the true extent of the self-funding fees.
24. The care provider has investigated the complaint. It has provided statements from both the receptionists who would have been on duty in December saying they did not discuss fees with individuals but referred them to the sales clerk or associate director. The care provider says Mrs A was never a resident on the unit mentioned and the figure quoted “is not reflective of the fees payable for the care received within Priory Mews at any level.” Mr X says Mrs A was a resident on that unit throughout her stay.
25. The care provider says it did not contact Mr X about the fees between January and April because it had no reason to do so. It says, “the fees paid by every single resident are not monitored on a daily basis due to the sheer amount of residents within every RCB home, thus explaining why this was investigated on the 20th of April and not on the 5th of January.” It says Mr X was informed of the fees on 20 April when he enquired at the front desk. It says, “Coincidentally this was the same day that the Sales Clerk Ledger had queried (Mrs A’s) fees with the social funding authority.”
26. The care provider says Mr X made no attempt to pay the fees between January and April although he must have known they were due.

Analysis

27. The detail of the figure quoted on the ‘post-it’ note is not the fundamental issue in this complaint. The care provider had a responsibility, as detailed in the regulations, to ensure it issued a contract for Mrs A’s care specifying the fees payable and the terms and conditions of her placement. The fact is that it did not do so.
28. It is not enough for the care provider to imply that the change in ownership and the number of residents was the reason why it did not notice the payment discrepancy until April when Mrs X had been a self -funder since 4 January: it was its business to know.
29. Mr X moved Mrs A from the care home as soon as he was aware of the actual fees payable: that leads me to conclude he would have done so much sooner had the care provider given him the right information at the right time. As he did not seek to withdraw money from the fixed-term account he did not suffer a penalty there.

Back to top

Recommended action

30. Within one month of my final decision the care provider should reimburse Mr X the difference between the fees incurred from 04 January to 13 May 2023 at Priory Mews and the fees at Mrs A’s new home.
31. Within one month of my final decision the care provider should apologise to Mr X for the way it has handled this matter and make an additional payment to him of £350 in recognition of the time and trouble he has been put to in making the complaint as well as the upset caused to Mrs A in moving care homes.
32. The Care Provider should provide us with evidence it has complied with the above actions.

Back to top

Final decision

33. I have completed this investigation. I find that the actions of the care provider caused injustice to Mr X which will be remedied by the completion of the recommendations at paragraphs 30 and 31.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman