Decision Date: 21st September 2020
Mr Z complained on behalf of Miss X. Mr Z had held lasting power of attorney for her financial affairs, and her health and welfare, since 2014.
Miss X had lived at a care home for several years, as a self-funded resident.
In September 2016 Mr Z told the Council that Miss X’s funds would soon fall below the threshold of £23,250.
Mr Z complained to the LGO that the Council failed to act properly after he alerted them to this fact. He made numerous complaints about the following issues:
A. Delay in financial assessment – Mr Z told the care home and the Council in September 2016 that Miss X would no longer be a self-funded resident as her assets were about to fall below the relevant financial threshold. The Council did not undertake a financial assessment.
Mr Z chased the Council in January and July 2017 and eventually a social worker was appointed.
The Council did not complete the financial assessment until the end of December 2017, by which time Miss X had only £4,000 left in her bank account. The Council took over two years to complete a financial assessment despite repeated chasing from Mr Z between 2016 and 2018.
It caused Miss X to have to pay the care home fees from her limited funds and led the care home to threaten to evict her when she had no money left.
B. Paying the care home rather than Miss X – the Council wrongly paid the care home about £20,000 in February 2018 instead of reimbursing Miss X, who had been paying the fees from her own funds.
The Council then paid the care home around £16,000 in August 2018, but this payment was then cancelled in February 2019.
Another payment was issued in March 2019 of around £28,000 which was then refunded to Miss X.
The Council informed the LGO that the Council’s contract was with the care home, rather than Miss X, which is why it paid the care home. The Council said that the care home should have then refunded Miss X.
C. Paying care fees after February 2018 – The Council completed a best interests assessment in January 2018 which concluded that Miss X should not be moved from the care home, where she had been a resident for several years.
The Council failed to pay Miss X’s care fees after February 2018 as it had agreed.
Thereafter the Council sought a weekly contribution from Miss X for her care. The care home, and a social worker, told Miss X that if she could not find someone to pay the third-party top-up fee, then she would have to move out. The care home used the money wrongly paid and then threatened to evict Miss X again when the lump sum ran out.
The Council wrongly told Mr Z that Miss X owed almost £7000 in top-up fees.
D. £7000 debt – The Council sent Mr Z a copy of an invoice in September 2019, stating that Miss X owed £7000. Mr Z thought this was accumulated third-party top-up fees. The Council explained it was the client contribution based on income.
The Council failed to provide an explanation of the figures or how these had been arrived at, and failed to explain this to Mr Z.
What was found
Complaint A – The delay in assessing Miss X’s finances was fault.
Complaint B – the LGO stated that although the Council could decide which account to pay into, Miss X or the care home, it was responsible for the delay that caused Miss X’s financial loss and for her placement as she could no longer afford it herself. The Council should have at least followed up with the care home to ensure Miss X had received the money she was owed. Failure to do so was fault.
Complaint C – the Council in seeking a third-party top-up fee, because it had already decided that it was in Miss X’s best interests to stay at the care home, was at fault. That the Council discussed the matter with Miss X directly, rather than her financial attorney Mr Z, was also a fault.
Complaint D – the Council in its unclear communication and manner in which it sought to recover £7000 from Miss X, was at fault. The LGO emphasised that Mr Z, like most people, was not an expert in adult social care, so it should not have been expected that he understood without clear explanation what the charges were for.
The £28,000 was not refunded to Miss X until March 2019, two and a half years after Mr Z first highlighted that Miss X could no longer pay for her own care. Both Mr Z and Miss X feared she would be evicted from the care home, particularly in early 2018 when the care home and Council were requesting third-party top-up fees. Mr Z was very distressed on numerous occasions, and it greatly affected his and Miss X’s friendship for some time. Mr Z was also put to considerable time and trouble bringing action.
The LGO recommended the Council:
- Apologise to Miss X in writing and pay her £500 for the distress its actions caused her;
- Apologise to Mr Z in writing and pay him £750, comprising £500 for the distress its actions caused him and £250 for his unnecessary time and trouble;
- Review its policies and procedures relating to charging for care, amending them if necessary to ensure that money owed to a person is paid directly to them, or within a month to follow up any refund to care homes so it is properly passed on to the client. Also to ensure that a residential care placement that is in a person’s best interest is not subject to third-party top-up fees;
- Arrange training for relevant staff within three months of the final decision to ensure correct practice is embedded.
Points to note for councils, professionals, people who use services and their cares, advocacy providers and members of the public
This complaint highlights the gravity of councils delaying core functions such as carrying out a financial assessment and taking over the legal obligation to meet the needs (at a council rate). Two years in our view is wholly unacceptable and the LGO could have gone further and awarded interest on top of financial remedies for the delay.
We can see here that the impact for the person of not knowing whether they would be evicted must have been extremely stressful and that councils should recognise the multitude of people who have never had contact about care with councils that are coming to the situation not knowing what the system is. The advice and information duty in the Care Act ought to be working by now!
To be clear, the Care and support statutory guidance requires councils to communicate well with individuals and at paragraph 8.16 says this:
‘Where a local authority has decided to charge, except where a light touch assessment is permissible (see paragraph 8.22 below), it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. This could be provided alongside a person’s care and support plan or separately, including via online means. It should explain how the assessment has been carried out, what the charge will be and how often it will be made, and if there is any fluctuation in charges, the reason. The local authority should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice.’
The LGO was not correct in its conclusion that the Council could choose whether to pay the care home or Miss X. The smallest amount of legal analysis in the report would have distinguished between refunding what she had been obliged to pay as a self funder, and paying the care home from the date when the council made a contract in its own name, or should have done, backdating it to the point when she was known to be going under the threshold, if the care home would only agree. The trouble is that by the time this was sorted out, many months MORE of private person’s fees would have fallen due, and the care provided, at the rate that had been agreed, previously, by Miss X. Care homes do themselves out of repayment if they allow themselves to be bullied by commissioners into backdating the council rate to a far earlier point.
The situation became so dire that Miss X was then asked for top-up fees from her last £14250, which is not unlawful if it is what a person would like, in order to stay put – but should never happen once a council has decided that the person ought not to be moved, in terms of what her needs compelled.
This Council had time to act, to carry out the financial assessment, provide information and ensure that Miss X and Mr Z knew what was required of them.
The LGO rightly found fault here – a two year delay is never going to be acceptable to anyone.
This is yet another LGO report where no excuse or reason seems to be sought from the council for its inexplicable failure to do what has been the law for over 25 years in one shape or form. Redrafting of policies and providing staff training as was recommended here will be no good if nobody bothers to read the policies or absorb the training.
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The full Local Government Ombudsman report of Rotherham Metropolitan Borough Council’s actions can be found here