Summary: Miss X complained the Care Provider delayed pursuing her for care home fees which allowed a large debt to accrue. In addition, it did not advise her of a fee increase in April 2022 and failed to take Council funding into account in calculating the amount owed. The care provider was not at fault.

The complaint

1. Miss X complained the Care Provider delayed pursuing her for care home fees which allowed a large debt to accrue. In addition, it did not advise her of a fee increase in April 2022 and failed to take Council funding into account in calculating the amount owed. This is causing her distress and left her with a large debt which she is having difficulty paying.

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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 a significant injustice or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(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 information provided by Miss X and have discussed the complaint with her on the telephone. I have considered the care provider’s response to my enquiries.
5. I gave Miss X 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

Charging for care and support

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 a 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. A council will set a personal budget, which is the amount it thinks is needed to pay for the care in a person’s care and support plan. If a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:

• the person can find someone else (a ‘third party’) to pay the top-up (the difference between the personal budget and the actual care home fees); or
• the resident has entered a deferred payment scheme with the council (which means care fees will not be paid until a later date when their home is sold) and is willing to pay the top-up fee themself.

9. In such circumstances, the council needs to ensure the person paying the top-up enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.

Lasting power of attorney

10. 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.
11. 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.

Deprivation of assets

12. Where the council decides, after making appropriate enquiries, a person has deliberately tried to avoid paying for their care by depriving themselves of capital or income, it may charge the person as though they still have the capital or income.

What happened

13. Mr Y has dementia. Mr Y lived in the same property as Miss X and her family. In February 2021 Miss X arranged a respite stay for Mr Y at the care home. The care provider charged £1,165 per week. Miss X has LPA for Mr Y’s property and finances and signed the contract for Mr Y’s care.
14. Mr Y settled well at the care home and so Miss X arranged for the stay to become long term. The care provider sent Miss X a contract for a long term stay in May 2021 which named Mr Y as the client and Miss X as the sponsor. The contract set out that:
• ‘the client and/or the sponsor acknowledges.….that the client’s financial circumstances (while subject to change for unforeseen reasons) have been considered by the client/sponsor and are presently sufficient to pay for the fee for the services for at least two years from the date of the contract and has produced evidence to that effect to the provider. If the client become eligible for state funding for or toward their placement at the home, the nature of the placement will change, and the provider will discuss the placement with the client/sponsor. If applicable, then it is the duty of the client/sponsor to make any subsequent application for funding from the local authority and to notify the provider so the provider may conclude a suitable contract with the authority concerned’.
• the fees would be subject to an annual review on 1 April each year and set out how this increase was calculated.
• the sponsor was liable for the fees in the event the client failed to pay them.
• it could charge interest at 1.85% above the London Industry base rate for any fees outstanding.
• it may initiate court proceedings to recover money owed.
15. The care provider sent Miss X monthly invoices setting out the care fees owed.
16. In June 2021 the care provider sent Miss X a letter requesting £15,543. Miss X responded and advised the care home she would make the payment that day.
17. In July 2021 the care provider emailed Miss X regarding outstanding fees which were around £20,000. Miss X responded that she had taken a cheque for £15,000 to the care home. Miss X signed and returned the contract in July 2021.
18. In mid-September the care provider emailed Miss X that Mr Y owed August and September’s care fees plus sundries from March totalling just over £10,000. Miss X responded in October and advised she had contacted the Council for their help in paying fees moving forward. Miss X paid the August fees in November 2021. She did not pay the care fees for September 2021 onwards.
19. In October 2021 a Council social worker emailed the care home manager to ask whether it would accept the Council’s rates for Mr Y’s placement and if it would speak to Miss X if a third party top up was required. They did not receive a response. In November 2021 the records show the social worker telephoned the care home three times and left messages then followed this up with two emails, asking the manager to call them with regard to Mr Y’s care needs.
20. In November and December 2021 the care provider asked Miss X for an update regarding her application for Council funding. Miss X advised she had been unwell and would chase the Council.
21. In early February 2022 the care provider requested a further update from Miss X. It advised her the account balance stood at just over £30,000. Miss X responded that hopefully the Council would sort it soon. Miss X said the Council had also told her to ask the care home about third party top ups. The care home manager explained Miss X would need to pay the shortfall herself of around £500 a week but agreed to speak with the care provider to see if there was room for negotiation.
22. Also, in February 2022 the care provider wrote to Miss X setting out how the fees would increase from 1 April. It included a schedule setting out what the fees would be month by month. Miss X says she did not get this letter.
23. In early March 2022 the Council contacted the care home to ask whether the care home would accept the local authority rate for Mr Y. The care home manager responded 19 days later. They said they had told the social worker they needed confirmation of the Council’s rates and what any contribution would be. Miss X had suggested she could only pay £100 a month top up. They said they were not certain the care provider would accept the Council rates but ‘there are some loose ends which need addressing before a final decision is made’.
24. In May 2022 a new interim care home manager started at the care home. They contacted the Council about the debt. They said they had met with Miss X who reported the Council required bank statements to complete the financial assessment. The manager said they explained top up payments to Miss X but she said she could only contribute £100 a month. The manager asked if and when the Council would take over funding.
25. In late May the Council advised the care provider it had completed the financial assessment and could assist with funding from late May 2022. It said it could pay £677.29 a week and Miss X would need to pay the care home Mr Y’s contribution towards this of £291.50 a week, dropping to £199.10 a week from late June. It advised the care provider to speak with Miss X about any debts owed prior to this. Having taken off what the Council said it would pay the debt stood at around £45,000. There is no record the care provider agreed to accept the rate the Council offered.
26. The care home manager met twice with Miss X in June 2022. The debt was around £52,000 but would reduce to around £45,000 taking into account Council payments. Miss X said she could pay £200-300 a month which the care home manager said was unlikely to be acceptable. The manager explained the top up would be around £500 a week. Miss X advised she could only afford to pay £150 per week. The manager advised the care provider may look to place a charging notice on Mr Y’s property to secure the debt.
27. In early July 2022 Mr Y’s behaviour deteriorated and he was admitted to hospital. Miss X contacted the care provider but it would not confirm whether it would accept Mr Y back at the home. The care provider advised Miss X to speak with the social worker as they considered it unlikely that Mr Y could return to the care home due to a change in his needs.
28. In late August the care provider contacted the Council. It explained it had offered Miss X a repayment plan over six months but she could not afford this. It advised it had never agreed the weekly rate offered by the Council which it considered unacceptable due to Mr Y’s care needs. It also sought to resolve the ongoing placement.
29. In late September 2022 the Council contacted the care provider and confirmed Mr Y would not return to the care home.
30. Miss X contacted the care provider and offered a payment of £200-300 a month. The care provider would not agree to this.
31. In October 2022 the social worker spoke to the care home which confirmed it had not yet received any funding from the Council. The care provider chased the Council in early November 2022 so that it could establish the final balance owed by Miss X. At this time the debt stood at around £67,000.
32. In mid November 2022 the care provider spoke with the Council and confirmed the council rates it would accept for the period late May 2022 until the placement ended in late September 2022 when Mr Y moved to another care home.
33. In January 2023 Miss X contacted the care provider again and offered a repayment plan of a few hundred pounds a month. The care provider was unwilling to agree to this. The care provider spoke with the Council and advised it had not received any payments as yet.
34. In February 2023 the care provider sent Miss X a solicitor’s letter which said she owed nearly £70,000. It sent a statement of fees which showed Miss X had not made any payments between September 2021 and September 2022 when the contract ended. It made no reference to Council funding.
35. In March 2023 Miss X complained to the care provider. It responded in April 2023. It said there was evidence it had given Miss X timely reminders of the debt owed. It said Miss X was Mr Y’s LPA and so it was her duty to act in Mr Y’s best interests. There was no evidence Miss X had made it known she was unable to undertake her duties as LPA and she therefore had responsibility for ensuring his fees were paid in a timely and appropriate manner. It said it continued to charge Mr Y for his room when he was in hospital as the initial move was not considered a permanent transfer and the home needed to make sure the room was available if necessary until it received formal notification he would not be returning.
36. In response to my enquiries the care provider advised the Council had made a payment in late October 2022 to cover 28 May 2022 to early July 2022, when Mr Y entered hospital, which it had allocated to the wrong account. It had not received payment for the period Mr Y was in hospital.

Findings

37. Miss X arranged the care home placement on a private basis with the care home. She signed the contract as Mr Y’s LPA on the understanding she would pay the fees. Miss X has been unable to pay the care fees but that is not the fault of the care provider.
38. Although Miss X approached the Council in August 2021 for help with funding the care placement the contract for care remained between her and the care provider. Miss X therefore remained responsible for paying Mr Y’s care fees. Miss X says she was not made aware of the extent of the debt but the records show the care provider sent Miss X regular invoices and emailed her regularly to make her aware the debt was accruing. The care provider was not at fault.
39. The care provider would have been within its rights to terminate the contract, but it chose not to. That is not fault as Mr Y required care and support which it was providing. If it had terminated the placement Miss X would have needed to find an alternative placement and would still have needed to fund it.
40. The care provider was entitled to increase its fees in April 2022. It says it wrote to Miss X to advise her of this and has provided me with a copy of the letter. Miss X says she never received this. However, in any case, the contract set out how the care provider would increase its fees so Miss X was aware this would happen. The care provider was not at fault for increasing its fees in April 2022.
41. The records show that in late 2021 and early 2022 the care provider delayed responding to the Council when it requested information regarding whether it would be willing to accept the Council rates for Mr Y’s placement. However, there is no evidence this caused a delay in the Council agreeing to contribute towards Mr Y’s care fees.
42. The care provider was not made aware that the Council would contribute to Mr Y’s care funding until late May 2022. At the point Mr Y was admitted to hospital in July 2022 it had not agreed a rate it would accept for Mr Y’s care, Miss X had not agreed to pay a top up and Miss X had not paid any of Mr Y’s care fees owed since September 2021. The contract for care remained between Miss X and the care provider. In line with its contract, it was entitled to pursue Miss X for the debt which stood at £70,000 and to charge interest because of the delay in making payment.
43. The care provider has now revised the debt owed to take account of Council funding from late May 2022. It has only charged Miss X for Mr Y’s client contribution from late May 2022 onwards and has not charged a top up. That is appropriate.

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Final decision

44. I have completed my investigation. There was no evidence of fault by the care provider causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman