Decision Date: 18th November 2020
What Happened
Mr X complained on behalf of his mother, Mrs X.
Mrs X had been receiving care in her own home, where she lived with her husband, since early 2019.
As her capital was over the financial threshold, she paid the full cost of her care. The Council paid the agency, then invoiced her son Mr X who had Legal Power of Attorney (LPA) for his mother’s finances.
In February 2019 Mrs X went to a care home for one week for urgent respite care funded by the care agency, as her husband had been admitted to hospital and the situation was urgent. Unfortunately her husband passed away, and so Mrs X needed a permanent place in a residential care home.
At the end of February 2019 the Council carried out a needs and financial assessment for Mrs X, which latter process concluded that she was still a self-funder.
The Council gave her son Mr X a leaflet called ‘Charging for Residential Care’ and told him to contact the Council when Mrs X’s capital fell below the threshold.
It wrote to Mr X in March confirming that Mrs X should pay the full cost of her care from the 27th February but did not state how the payment should be made. It included the ‘Charging for Residential Care’ leaflet again.
The Council also failed to make it clear with the residential care home how Mrs X would be paying for her care, although the home was aware Mrs X’s capital was above the upper threshold. During an email exchange from March 2019, the care home asked the Council to confirm a date when the funding would change. There was no further evidence the Council ever provided a date.
Mr X raised concerns about payment for his mother’s residential care with the Council in May 2019. At this stage the Council realised it had given Mr X the wrong leaflet twice and failed to properly explain the process of payment for self-funding clients. It sent Mr X the appropriate leaflet ‘Guide for people funding themselves in residential and nursing care homes’.
Mr X complained to the Council and asked why it would not continue the same payment method as before with the Council paying the agency directly then invoicing Mr X.
The Council stated that it did not offer this service except in exceptional circumstances. As Mr X was holding an LPA for Mrs X, he could manage her finances for her placement, directly.
The Council stated that if Mrs X’s capital had been made up of the equity in her property, then, as there would have been no immediate access to those funds, in those circumstances the Council would have offered a deferred payment scheme. The Council would have maintained the management of the financial relationship with the care home until the equity was released. However, this was not the case with Mrs X as she was still above threshold from liquid assets.
Mr X remained unhappy and complained to the LGO.
What was found
The LGO stated that the Council miscommunicated with both Mr X and the care home. The Council sent a misleading leaflet to Mr X, twice. It also failed to inform him he would need to pay the care home directly, and failed to inform the residential care home when the funding changes would take place. The LGO stated that the Council was at fault for its poor communication.
The Council had already recognised its own role in the ambiguity about how an above threshold person with an LPA should be paying for residential care services. The LGO recommended the Council apologise and pay Mr X £300 to acknowledge the distress it caused.
Points to note for councils, professionals, people who use services and their carers, advocacy providers and members of the public
This complaint concerned a situation where a woman having care at home but through the council’s arrangements, moved temporarily into a care home when her husband was rendered incapable of caring, through his own illness.
It is not clear why he as her LPA holder was not just buying the services privately, but a person making this election in this situation pays a commissioning fee on top of the fee, to be let into the council’s commissioning arrangements, and it can sometimes work out cheaper.
The council had an existing arrangement with the LPA and care provider for Mrs X whilst she was living at home, and we would have assumed, (were it not for the report saying that the home care agency paid, for some reason) should have been the contractor for the temporary care in the care home too.
Mr X was unaware of the required arrangements for paying for the care home, and had to chase the Council about this. The Council also failed to inform the care home who would now be liable for the fees. Had it done so properly, then at least the care home might have also had some conversation with Mr X about the charging arrangements and helped him understand how the situation should work.
This report has undertones of the Aster Healthcare case, in which a care home sued the executor of the estate of a Mr Shafi, and failed because his wife was not the holder of any power of attorney, never made a personal contract for his fees in her OWN name – and it turned out that Brent had never actually terminated its own contract fee for Mr Shafi’s care home placement, even after his equity was released. See here for more detail: https://www.39essex.com/cop_cases/aster-healthcare-limited-v-estate-mr-mohammed-shafi/
It amazes us that councils with commissioning officers and contracts staff continue to get this sort of thing wrong, when there is decided case law about the issues.
A related issue – the higher cost of privately funded care in the care home than the fee charged for the respite service – was not investigated by the ombudsman, because the investigator said that that was a matter as between the care home. If one thinks through the logic of the report it is that the council should have been responsible for the funding of the respite service and WAS responsible for the miscommunication. So we’re not sure the investigator’s decision to refuse to investigate that aspect was correct on that point.
The full Local Government Ombudsman report of Kent County Council’s actions can be found here
https://www.lgo.org.uk/decisions/adult-care-services/charging/19-012-666