Summary: Ms X complained on behalf of her late father Mr Y that the Council commissioned care home put in place one-to-one care and increased Mr Y’s care fees without a review of his care needs or agreement from her or the Council, and evicted Mr Y from the care home for no reason. The Council was at fault for unclear communication on the change in Mr Y’s care needs and did not communicate clearly the cost of Mr Y’s care fees or Mr Y’s move to a new care home. It will apologise and pay Ms X a symbolic payment to acknowledge the uncertainty and distress caused to her, ask the care home to revise Mr Y’s invoices and put service improvements in place.

The complaint

1. Ms X complained on behalf of her late father Mr Y. Ms X complained the care home acting on behalf of the Council put in place one-to-one care in August 2022, and substantially increased Mr Y’s care fees, without a review of Mr Y’s care needs or agreement from her or the Council to increase the care package. Ms X said the care home had not evidenced one-to-one care was needed and she said he was evicted from the care home for no reason. She said this caused distress, uncertainty, a financial impact and was delaying the estate administration.

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The Ombudsman’s role and powers

2. 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)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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 apology I have recommended in my findings.
5. We may investigate a complaint on behalf of someone who has died. The complaint may be made by:

• their personal representative, or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

6. We normally name care homes and other care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)

I have not named the care home in this case because of its small size.

7. 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)
8. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I have and have not investigated

9. Ms X complained to us in mid-March 2024 about her late father’s increased care charges from mid-August 2022. Paragraph 3 above explains late complaints are when someone takes more than 12 months to complain to us about something a Council has done. I have used my discretion to look back to August 2022 when Mr Y’s care charges were increased by the care home. Ms X was only made aware of Mr Y’s increased care charges in mid-January 2023 and was only provided with the invoices in late January 2023. She continued to contact the Council in 2023 about the outstanding care fees which are still not settled and could not have reasonably complained to us sooner. I have investigated what happened up until mid-January 2024 when the Council sent its final response to Ms X’s complaint.

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How I considered this complaint

10. I considered:
• the information Ms X provided and spoke to her about the complaint on the telephone;
• the information the Council provided and its response to my enquiries;
• relevant law and guidance, as set out below; and
• our guidance on remedies, published on our website.
11. Ms X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Relevant law and guidance

The Care Act 2014 and charging

12. 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.
13. 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.
14. 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. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
15. Councils should clearly discuss with the person or their representative at the outset that care and support is a chargeable service and that where the person has been assessed as being able to afford to do so, they will be required to contribute to the cost of that care. They should ensure any subsequent fee changes are clearly communicated to the person or their representative (paragraph 8.2 Care and Support Statutory Guidance (CSSG)).
16. The Care Quality Commission (CQC)(registration) Regulations 2009: Regulation 19 requires care providers to provide accurate and timely information about the cost of their services to people who use them. Providers must make written information available about fees, contracts and terms and conditions where people are paying either in full or in part cost of their care, treatment and support.

Care planning

17. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan, which should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area.
18. Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. The authority should consider a light touch review six to eight weeks after agreement and signing off the plan and personal budget.

Best interest decision making

19. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
20. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Lasting Power of Attorney

21. 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.
22. There are two types of LPA: property and finance and health and welfare.

Court-appointed Deputies

23. If there is a need for continuing decision-making powers and there is no relevant Enduring Power of Attorney (EPA) or Lasting Power of Attorney (LPA), the Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian (OPG) oversees the work of attorneys and court-appointed deputies and produces detailed guidance for them.

Full cost payers and self-funders

24. Full cost payers pay the full cost of their care charges that a Council has arranged on their behalf. The contract remains between the Council and care home. A self-funder pays the full cost of their care and support and they arrange and pay for their own care without involving the Council. The contract for care services is between the individual and the care provider.

Background

25. Mr Y lived at home and received home care support of four visits a day to assist with personal care, catheter care and meals. Mr Y was sight impaired, deaf and suffered from dementia and Alzheimer’s disease. He paid for the full cost of his care package. Following a hospital stay, Mr Y was discharged to a care home, Care Home 1, in mid-December 2021 as a temporary measure for four weeks whilst Mr Y’s home was being repaired. The contract for Mr Y’s care was between the Council and Care Home 1. Mr Y’s daughter Ms X did not have Lasting Power of Attorney (LPA) for Mr Y. Mr Y continued to live at Care Home 1 for longer than four weeks because of the time taken to repair his home. A Council panel agreed for Mr Y to live at Care Home 1 until April 2022.
26. From mid-April 2022 until mid-August 2022 Mr Y’s insurance company agreed to pay 75% of his care home fees at Care Home 1 and the Council paid the remaining 25% of Mr Y’s care fees.

What Happened

27. In mid-August 2022, the Council said Care Home 1 made a unilateral agreement to increase Mr Y’s weekly care fees from £980 to £3,696 because Care Home 1 said he needed one-to-one 24-hour care. The Council said Care Home 1 did not inform it of the increase in Mr Y’s care costs or the one-to-one care he was provided. Neither the Council nor Ms X received a revised contract from Care Home 1, nor evidence of any revised care assessment. Ms X said Mr Y’s needs did not change and he was not provided with one-to-one care.
28. In late September 2022 the Council rang Ms X and said Mr Y needed to return to his home by the next day because the Council would not be funding his care from the start of October 2022. Ms X told the Council she could not take Mr Y home because of mould in his home. The Council told Ms X on the telephone if she wanted Mr Y to stay in Care Home 1 it would no longer be the Council’s responsibility and she would be responsible to fund his stay at Care Home 1 and respite care would stop. The Council records showed Ms X acknowledged Council funding for Mr Y’s care at Care Home 1 would stop. Mr Y was a full cost payer. This meant the Council would commission his care, but Mr Y would have to pay the costs.
29. In mid-January 2023 a virtual meeting was held and attended by Care Home 1 manager, a Council social care assistant (Officer 1), Ms X and another family member. Council records show they discussed:
• why Mr Y needs could no longer be met at Care Home 1 and that he needed to be moved to another care home. Care Home 1’s manager said Mr Y was putting himself and other residents at risk of falls when he opened his catheter (tube to drain urine), he needed one-to-one support because of his behaviour and needed three members of staff to manage him at times;
• why Mr Y could not return to his home. Ms X said this was because of mould and his disruptive behaviour and was reluctant to accept support with personal care;
• Mr Y’s current charge at Care Home 1 and who was funding Mr Y’s placement. Ms X said in early October 2022, she sought legal advice which explained Mr Y needed to be reassessed by the Council to allow him to be placed in a care home and information needed to be provided on a change in costing; and
• information provided by Officer 1 on Mr Y’s current placement. It was agreed Mr Y would remain at Care Home 1 until the Council could find Mr Y new accommodation which would need to be taken to a Council panel. Officer 1 said because Mr Y was a self-funder the charges would be sent to his deputies.
30. In late January 2023 Care Home 1 sent the Council and Ms X an invoice for Mr Y’s Care Home 1 charges. A week later Ms X emailed Care Home 1 and said she had been requesting invoices from Care Home 1 but none had been sent and she asked for a breakdown of Mr Y’s £3,696 per week charge. The same day Care Home 1 emailed Ms X and Officer 1 and said Mr Y received ‘one-to-one care of £22.00 per hour over 24 hours which was £3,696 per week and that was the lowest charge on one-to-one care’. Care Home 1 also said it ‘sometimes took two or three staff to help Mr Y with personal care and it hoped Ms X was actively looking for an alternative placement for Mr Y, with the weekly charge it was still not managing’.
31. In early February 2023 a best interest meeting was held with Officer 1 and Care Home 1’s manager about Mr Y’s care home placement. It was agreed Mr Y’s needs could not be met at Care Home 1 and a new residential placement was needed.
32. Five days later a multi-disciplinary team (MDT) meeting was held at Care Home 1 between Officer 1, an NHS community psychiatric nurse and the Care Home 1 manager. The NHS nurse said they were involved with Mr Y because of his behaviour and new medication had been given to Mr Y. It was discussed Mr Y needed a specialist unit to care for him and his needs could not be met at Care Home 1.
33. In mid-February 2023 Officer 1 rang Care Home 1 and asked if the invoice could be decreased because of the high amount. Care Home 1 manager said she would forward the request to the accounts department to consider.
34. In late February 2023 a Council manager carried out a mental capacity assessment on Mr Y. The assessment concluded Mr Y did not have mental capacity to say where he would like to live or how his care and support should be provided. A best interest decision was made that Mr Y needed to move care home. The Council developed a support plan which set out Mr Y needed a residential care home for adults with dementia.
35. In late February 2023 the Council held a panel meeting about Mr Y’s placement. The panel agreed Mr Y would remain in a residential setting until a suitable placement was found and Care Home 1 had given Mr Y notice because the care home could not manage his needs. The panel agreed Mr Y’s care fees would be £1,300 and that Mr Y’s family would continue to fund his care. The panel said Mr Y’s family was finding it difficult to find a new care home for Mr Y. Ms X said she was not told of the increase in Mr Y’s care fees.
36. Ms X did not have power of attorney for Mr Y. In March 2023 Ms X was given access to Mr Y’s bank accounts through the Court of Protection. This meant the Office of the Public Guardian had to pre-approve all payments for Mr Y and it told Ms X not to pay the increase care fee of £3,696 and to pay the £980 fee per week.
37. In March 2023 the Council contacted several care homes to find an alternative residential placement for Mr Y. Care Home 2 agreed to assess Mr Y. In late March 2023 Ms X said Mr Y was evicted from Care Home 1. She said she was only aware Mr Y was moving care home when the new care home contacted her. The Council rang Ms X in late March 2023 and said she needed to transport Mr Y to his new care home, Care Home 2. The Council records showed Mr Y’s weekly charge at Care Home 2 was £1,150. In mid-May 2023 Mr Y passed away.
38. In June 2023 the Council asked Ms X if the insurance company had paid 75% of the £1,300 weekly cost of the care home fees. Ms X said she was not aware the fees were £1,300 and the insurance company had paid the invoices of £980 a week.
39. In mid-December 2023 Ms X complained to the Council. She said Mr Y’s care charges were increased in August 2022 and no one agreed to the increase. She said she was not provided any evidence of the need for the increase in fees and the Council did not challenge the increase in fees. She said Care Home 1 sent one email saying that ‘one-to-one care cost £22 per hour for 24 hours’. Ms X said Mr Y did not receive one-to-one care at Care Home 1. Ms X said Mr Y was in the wrong care home for his needs. She said because Mr Y did not give her LPA she contacted the Court of Protection about his finances and the Office of the Public Guardian refused her permission to pay Mr Y’s outstanding fees.
40. In mid-January 2024 the Council responded to Ms X’s complaint and said:
• there was a dispute between the Council, Care Home 1 and Ms X about the cost and type of care Mr Y received;
• Mr Y’s insurance company part funded Mr Y’s stay at Care Home 1 and in February 2023 paid Ms X money for mid-April 2022 and mid-August 2022 based on £980 per week;
• in mid-August 2022 Care Home 1 increased Mr Y’s care fee to £3,696 per week by a unilateral agreement but Care Home 1 did not tell the Council about the increase;
• Mr Y’s needs could not be met at Care Home 1 and it sourced a new residential provider for Mr Y;
• a Council panel held in late February 2023 agreed to an increase in Mr Y’s care charges to £1,300 per week but it did not receive an increase in Mr Y’s care charges to £3,696 per week and no agreement was in place for that charging rate;
• Ms X’s experience with Care Home 1 had been poor and would be discussing her concerns with the Council’s commissioning team;
• it challenged the increase in costs with Care Home 1 and requested a break down of the costs; and
• it did not uphold Ms X’s complaint because the Council carried out its statutory obligations but had asked its commissioning team to review Care Home 1.
41. Ms X remained unhappy and complained to us. She said there was an outstanding balance of £108,000 plus interest for Mr Y’s care home fees for Care Home 1.

Enquiries

42. In response to my enquiries the Council commissioning care team had spoken to its brokerage team and concluded there was no contract on file that confirmed the weekly rate of Mr Y’s placement at Care Home 1. The Council commissioning team had spoken to Care Home 1 and explained it was bad practice to increase the weekly fee without agreement from the service user’s family or the Council.
43. The Council said a discussion took place between Care Home 1 and Officer 1 about the increase in fees to £3,696 but this was not confirmed in writing.

My findings

44. In August 2022 Care Home 1 increased Mr Y’s care fees from £980 to £3,696 per week. The Council arranged Mr Y’s care at Care Home 1 and the contract was between Care Home 1 and the Council. It was for Care Home 1 to discuss and agree any increase in the care fees with the Council to be in line with CSSG guidance and CQC Regulation 19. Care Home 1 should have clearly recorded and communicated its decision about whether one-to-one care was necessary and how often this would be provided. It should have involved the Council so that it could complete a new assessment and determine whether this was the least restrictive option to support Mr Y when Mr Y’s care changed to one-to-one care. The failure to do so was fault also Care Home 1 did not act in line with CSSG guidance or CQC Regulation 19. This caused Ms X uncertainty over whether Mr Y needed, and therefore should have been charged, for one-to-one care.
45. The Council told Ms X that from early October 2022 the family was responsible for paying Mr Y’s care fees. Ms X was therefore aware that from October 2022 Mr Y was required to pay the cost of his care fees. However, the Council remained responsible for the contract between it and Care Home 1. There is no evidence the Council reassessed Mr Y’s care needs, ended its contract with Care Home 1 or clearly explained to Ms X the action she would need to take to arrange a contract direct with Care Home 1 if she was to self-fund his care. This was fault, and caused Ms X uncertainty. This caused an ongoing lack of clarity on Mr Y’s care fees and who was to pay the invoices given Ms X did not have LPA and was not given access to Mr Y’s bank accounts until March 2023.
46. In late January 2023 the Council was now aware Care Home 1 had significantly increased the costs for Mr X’s care as it received a copy of the invoice showing charges had increased significantly. It did not challenge Care Home 1 at the time, nor point out a contract change would be needed. That was fault and these actions may have prevented some of the later confusion and dispute.
47. In mid-January 2023 the Council attended a meeting with Care Home 1 and Ms X to discuss Mr Y’s challenging behaviour and in February 2023 the Council and Care Home 1 agreed his needs could no longer be met at Care Home 1. A best interest meeting was held, a mental capacity assessment undertaken, a new care and support plan produced and in late February 2023 a Council panel decided a new placement was required for Mr Y. The Council acted appropriately to reassess Mr Y’s needs and was not at fault. A Council panel agreed Mr Y’s care fees should be increased to £1,300 due to his increased level of need. This was the appropriate process but given Mr Y was a full cost payer, there is no evidence the Council informed Ms X about the increase until June 2023 when it queried how much Mr Y’s insurance was paying. This was fault and caused Ms X uncertainty and distress.
48. The evidence shows the Council, Care Home 1 and Ms X attended a virtual best-interests meeting in mid-January 2023 and it was decided that Care Home 1 could no longer meet Mr Y’s needs and he needed a new care home placement. Ms X was therefore aware of and in agreement that Mr Y needed a new placement. The Council started to source an alternative residential care home for Mr Y. However, when Care Home 2 offered to assess Mr Y’s care needs there is no evidence the Council advised Ms X of this or kept her updated about the search for a new placement. Ms X said she was only made aware of Mr Y’s change in care home when Care Home 2 informed her. The Council only made Ms X aware of the change in placement when it asked her to arrange transport for Mr Y to Care Home 2. The lack of communication with Ms X about Mr Y’s move to Care Home 2 was fault and caused Ms X distress. However, the records show Mr Y settled in Care Home 2 and Ms X was satisfied it was meeting his needs.
49. Care Home 1 was provided a copy of the draft decision. It said it disagreed and would not revise the invoices or negotiate with the Council as I have set out in paragraph 51 b) below. It said it would consider taking legal action to recover the money owed. The Council agreed to all the actions set out below.

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Agreed action

50. 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 can make recommendations to the council alone. Here we have found fault with the care provider (Care Home 1) and the Council has agreed to the following actions.
51. Within one month of the final decision the Council will:
1. apologise and pay Ms X £300 for the uncertainty and distress caused by unclear communication on the change in Mr Y’s care needs, the cost of his care fees and Mr Y’s move to Care Home 2;
2. ask the care home to revise Mr Y’s invoices to remove the one-to-one care charge to reflect the weekly charge of £980 a week. Any outstanding amount above this is a matter between the Council and Care Home 1, or the courts if there is a dispute about the contract; and
3. remind relevant Council staff to involve relatives in decisions regarding moving care home placements.

Within three months of the final decision the Council will:

4. review its procedures to ensure it provides in writing relevant information to the service user or their representatives when there is a change in funding arrangements for care home placements.
4. The Council has already spoken to Care Home 1 about it not informing the Council or service users about increases in weekly fees. No further recommendation was required.

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Final decision

53. I have completed my investigation finding fault causing injustice. The Council has agreed to take action to remedy the injustice and prevent reoccurrence of the faults.

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Investigator's decision on behalf of the Ombudsman