The Ombudsman's final decision
Summary: Mr D complained about how the Council handled his late father’s care fees. He says the Council wrongly told him his late father’s care fees would not increase when he moved into a care home. He also says the Council charged his late father for domiciliary care he did not receive, and it continued to charge him when he was in hospital and after he passed away. We find the Council was at fault as it told Mr D the wrong information about his late father’s care fees, and it failed to properly review the outstanding domiciliary care fees. It also did not investigate whether it should continue charging Mr D’s late father after it was told he would not be returning to the care home. The Council has agreed to our recommendations to address the injustice caused by fault.
The complaint
Mr D complained about how the Council handled his late father’s (Mr E) care fees. He says the Council wrongly told him Mr E’s care fees would not increase when he went into a care home. He also says the Council charged Mr E for domiciliary care that he did not receive. Finally, he says the Council charged Mr E when he was in hospital and after he had passed away.
Mr D says the matter has caused stress and anxiety. He wants the Council to review the outstanding care fees.
The Ombudsman’s role and powers
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by: their personal representative (if they have one), or someone we consider to be suitable.
(Local Government Act 1974, section 26A(2), as amended) 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)
How I considered this complaint
I considered information from Mr D. I made written enquiries of the Council and considered information it sent in response.
Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Charging The Care Act 2014 sets out the legal framework for charging. Councils can make charges for care and support services they provide or arrange. They must do so in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014.
Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The assessment must comply with the principles in law and guidance, including that charges should not reduce a person’s income below Income Support plus 25% (also known as the minimum income guarantee).
Councils can take a person’s capital and savings into account subject to certain conditions. Those with capital assets of over £23,250 have to pay the actual cost of the care they receive. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010).
Mental Capacity Act The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
A key principle of Act 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.
What happened Mr E received a domiciliary care package for several years. The Council assessed Mr E and decided he should make a small contribution to his care fees.
The Council held a best interest decision meeting in December 2020. The purpose of the meeting was to review Mr E’s care and support needs. Mr E did not have the mental capacity to make any decisions about his care and support needs himself, so it was agreed his social worker would be the decision maker in consultation with his family.
The Council explained Mr E was becoming more emotionally distressed, he had lost weight and his safety was at risk. It suggested two options. One option was for him to remain living at home with additional support in the form of a day centre or a personal assistant taking him out into the community. The other option was for him to move into 24-hour residential care.
An officer told Mr D that Mr E’s contribution to his care fees would not increase if he moved into 24-hour residential care. The family decided this was the best option for Mr E.
Mr E paid £46.68 per week for his domiciliary care from December 2020 until he moved into the care home in February 2021.
The Council wrote to Mr D and Mr E in March. It said following its financial assessment, Mr E’s contribution to his care until 21 March was £241.57 per week. The charges would then decrease to £181.87 per week from 22 March onwards.
Mr D emailed the Council and complained. He said it told him Mr E’s care fees would not increase when he moved to the care home.
The Council responded to Mr D’s complaint on 19 May and apologised it gave him the wrong information on how Mr E would be assessed. However, it said it conducted the financial assessment in line with the Care Act 2014.
Mr D contacted the Council and said he wanted to refer his complaint to stage two of its complaints procedure. He said he remained unhappy the Council had told him the wrong information.
The Council responded to Mr D’s stage two complaint. It said to resolve the matter, it would charge Mr E the amount he would have contributed to his domiciliary care from the date he went into the care home until the date of its stage one response to the complaint (19 May).
Mr D responded and said he remained unhappy with the outstanding bill. He also said there were issues with the previous domiciliary care package that remained unresolved.
The Council emailed Mr D and asked him to provide more details about which part of the outstanding bill he was not happy with.
Mr D emailed the Council and said Mr E was charged for domiciliary care when he went abroad or when care was cancelled. He said he raised this on the phone previously, but officers failed to return his calls.
The Council sent Mr D reminder letters for the outstanding care fees. This related to care fees from both the domiciliary and residential care packages.
Mr D emailed the Council again and complained about the reminder letters he received. He also said it had not addressed his discrepancies with the bills.
The Council responded in November and December. It said because of its mistake, it charged Mr E £475.08 rather than £2,364.31. It also said if he remained dissatisfied, he could refer the matter to the Ombudsman.
Mr E went into hospital. Mr D sent a further email to the Council on 14 December and said the care home had refused to take Mr E back into its care. He said he hoped they would not incur any further costs. The Council did not respond.
Mr E passed away in January 2022. The Council was not aware and so continued to send bills for the care home fees.
Mr D told the Council on 15 March that Mr E had passed away.
Mr D emailed the Council again to say the domiciliary care fees were still incorrect. The Council cross checked the bills it received from the domiciliary care provider against what it charged Mr E and applied a credit to the account of £149.38. It also updated the system to reflect that Mr E passed away in January.
The Council wrote to Mr D and confirmed it had corrected the account. It apologised for the delay and the stress it had caused. It offered him £100.
Mr D remains dissatisfied with the Council’s response.
Analysis The Council was at fault as it wrongly told Mr D that Mr E’s contribution to his care fees would not increase when he moved to the care home. This fault caused Mr E’s family stress and frustration as they were managing his finances.
The Council acknowledged its fault, apologised, and charged Mr E the domiciliary care package rate from 21 February to 19 May 2021. This means he had a significant reduction in his care fees for three months.
It is clear from the meeting in December 2020 that Mr E needed more care. Even if Mr D had decided he wanted Mr E to remain living at home, he would have still incurred additional costs either in the form of a day centre or a personal assistant. Therefore, I consider the Council’s remedy is a suitable way to resolve this part of Mr D’s complaint. I do not recommend anything further.
Mr D says the Council charged Mr E when he was in hospital and would not be returning to the care home. When the Council responded to my enquiries, it said it did not receive any information from the hospital that Mr E would not be returning to the care home. However, Mr D emailed it on 14 December 2021 and said the care home refused to take Mr E back into its care. The Council failed to reply to Mr D or investigate this matter further. This is fault which has caused Mr D frustration. The Council should investigate this further to determine whether it needs to waive any care fees from December 2021.
With regards to the domiciliary care fees, Mr D explained in his email in October 2021 some of the charges were incorrect. The Council failed to address this in its subsequent responses in November and December 2021. It only looked at this matter further in May 2022. This is fault, and Mr D was put to time and trouble repeating his concerns again.
Even though the Council has investigated the outstanding domiciliary care fees further, I am not satisfied it has done so properly. The Council has only cross checked the bills it received from the domiciliary care provider against what it charged Mr E. Mr D’s assertion is the charges from the care provider are incorrect as there were some occasions when Mr E was on holiday or away, but he was still charged. The Council should write to Mr D and get further information from him so it can complete a detailed review of the outstanding domiciliary care fees.
The Council was not aware until March 2022 that Mr E had passed away. It did not correct the account until May 2022. It apologised for the delay when it responded to the complaint and offered £100.
I do not consider £100 goes far enough to reflect Mr D’s injustice. I consider £200 is a more appropriate remedy and it reflects the time and trouble he has been put to in repeating his concerns to the Council.
Agreed action
To address the injustice caused by fault, by 5 September 2022 the Council has agreed to: Apologise to Mr D.
Pay Mr D £200.
Review whether it should waive the outstanding care home fees from December 2021 onwards. It may wish to seek further information to determine when Mr E was discharged from hospital and did not return to the care home.
Write to Mr D to seek further information about the outstanding domiciliary care fees he disputes. When it receives a response, it should conduct a detailed review and decide if any of the fees should be waived.
Final decision
There was fault by the Council, which caused Mr D an injustice. The Council has agreed to my recommendations and so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman