Decision Date: 03 July 2023
What happened
Mrs J lives in a 24-hour residential care home. She receives free aftercare services under Section 117 of the Mental Health Act 1983 (MHA) in the form of a placement. Mr R, who acts as court-appointed Deputy for property and financial affairs for Mrs J [and is an independent Deputy], complained to the Ombudsman that Mrs J had not been provided with a contract for her stay in the care home.
Mrs J was detained under Section 3 of the MHA in 2011. It was established, during discharge planning, that her care needs could only be met via 24-hour residential care. She moved into a care home, which was owned and operated by the Council, in January 2012.
In 2014, Mrs J was assessed [the report doesn’t say by whom] as lacking capacity to make decisions about her finances and Mr R was appointed by the Court of Protection as Deputy for Mrs J’s property and financial affairs in August 2020. He contacted the Council requesting a copy of the contract setting out Mrs J’s rights and obligations in respect of her placement in the care home.
The Council advised Mr R that there was no contract in place between Mrs J and the care home. It explained that this was because usually, when placing a person in a residential care home, the Council would set up a contract between themselves and the care home. In this case, because the care home was owned by the Council, there was no need for a contract between the parties, and the home was not expected to sign up to the Council’s Standard Terms of Business.
What was found
The Council explained to the LGSCO that Mrs J’s care plan sets out the care expectations whilst she lives in the home. In addition, the Council said it has a Contract Evaluation Review Tool (CERT) for Mrs J which sets out the notional cost of the placement and who is responsible for paying the fees.
Section 19 of The Care Quality Commission (Registration) Regulations 2009 details that “where a service user will be responsible for paying the costs of their care or treatment (either in full or partially), the registered person must provide a statement to the service user, or to a person acting on the service user’s behalf:
- (a) specifying the terms and conditions in respect of the services to be provided to the service user, including as to the amount and method of payment of fees; and
- (b) including, where applicable, the form of contract for the provision of services by the service provider”.
Because Mrs J did not pay for, or contribute towards, her care in the care home, nor did she ever need to contract for her own care, this regulation did not apply to her but the LGSCO stated that this establishes a principle that a service user should be given clear information about the services they should expect to receive, including the terms and conditions of the care to be provided.
The LGSCO recognised that Mrs J’s care plan and the CERT cover the majority of this but found that because the home did not have to sign up to the Council’s Standard Terms of Business, there was no detailed record of Mrs J’s rights in respect of her placement. The LGSCO found this to be fault by the Council and the ICB, which shared a duty to provide or arrange Section 117 aftercare services for Mrs J.
The LGSCO recommended that the Council produce a contract, or similar document, detailing Mrs J’s rights and what she can expect in terms of care provision, reflecting the Council’s Standard Terms of Business.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
Signing a care home contract can of course be key to ensuring a person’s rights are protected and that there is accountability if things go wrong. This contract will detail fees, and who is to pay whom, what services can be expected, and the terms of the stay.
Typically, the contract is between the care home and whoever is paying for the service, which will generally be the council, even if the person is paying full cost back by way of charges. It is settled law that the care plan must cover the full cost of the needs that are to be met, and the full package of accommodation – and even a top up for wants, as it happens, when the council is the purchaser.
In this case, Mrs J was not contributing towards her care and therefore it wouldn’t be expected that she would have been provided with a contract. The LGSCO rightly stated that s19 of The Care Quality Commission (Registration) Regulations doesn’t apply to Mrs J. We can’t understand how the CLAE has found fault in this case. Nobody ELSE – even under the Care Act – gets to see the council’s contract in an ordinary case: indeed the council will often claim it is commercially confidential!
The Competition and Markets Authority published Care homes: consumer rights for residents and their families guidance in 2018. This clearly states: ‘’If you’re paying for your own care, there will be a contract between you and the care home.’’ There is no guidance, nor regulations, which state that a contract should be provided when a person is not paying for their care.
We can understand that Mr R was seeking to ensure Mrs J’s best interests were being met in seeking the terms and conditions but any ‘what if?’ concerns are covered by existing legislation, guidance and policy. The Council and ICB have a duty under s117 MHA to ensure Mrs J’s needs are met. In addition, depending on the assessment, there could be a duty under s18 of the Care Act 2014 (the duty to meet needs for care and support). We therefore don’t understand why the Ombudsman has requested this additional contract!
Although perhaps insignificant in terms of the outcome, it is rather ironic that the Council stated that there was no need for a contract, and yet it sought to justify itself by stating it had completed a ‘Contract Evaluation Review Tool (CERT)’ for Mrs J!
We are surprised that the LGSCO didn’t highlight the six-year gap between Mrs J being assessed as lacking capacity and a Deputy being appointed and question what measures were in place at that time to protect her best interests, a point that we feel gave more cause for concern than an unnecessary contract!
The full Local Government Ombudsman report on the actions of East Riding of Yorkshire Council can be found here: 22 007 333 – Local Government and Social Care Ombudsman