This week we’re featuring 4 Ombudsman’s reports all about fees, contracts, dependency supplements, top-ups and terms.
It’s the week in which we’ve seen an unprecedented Providers Unite Day of Action rally in Westminster, and also Stoke City’s ‘renewed’ fees offer made public.
That was a reprise of its first offer of 1.4%, but with more justification, this time round, regarding the state of its finances, transparency about which must be making central government feel a tad unwell, we think!
This is not like the Birmingham YVR case where financial meltdown justified putting up charges to the client public. This is about the council’s duties to meet people’s needs, for which it depends on provider willingness to carry on taking the meagre shilling – and in this case, to sign up to a new contract for 2025 onwards, so it will be interesting to see what happens next, and what lessons other providers and provider associations learn from this saga.
All the reports we’ve covered this week, contain lessons for care home and domiciliary care providers AND for their council commissioners about the real point of all of that effort – the rights of the people whom it’s all supposed to be about, under the Care Act.
There’s an urgent flag for the Ombudsman, too, with regard to quality control about its own Reports, and we hope you can see why, from our first report, about Tameside.
In Tameside, we have a council apparently involved in operating top-ups for dependency levels.
Everyone in the sector should know that dependency levels affect staff ratios, and that staff ratios are about NEEDS – not mere wants.
Top-ups are a subsidy of the sector’s sustainability that councils can lawfully factor in to their fees offers, because top-ups keep the market sustainable.
But they can only ever be for covering WANTS, not needs – otherwise the relatives would be manouevred into subsidising the councils’ DUTIES to meet the eligible unmet needs… They are not part of what the government calls a Fair Cost of Care Exercise regarding funding of local authorities to discharge their statutory duties.
The Ombudsman’s investigator makes no comment about this fundamental legal truth, or about the fact that the council must have known it was going on, because it is legally obliged to include any top-up in the contractual fee.
These days, if there’s a care home provider anywhere who’s willing to reduce its fee to a council, where the client’s dependency level has actively
reduced, we would be hugely surprised, unless they’ve chosen to sign up to a framework agreement explicitly providing for banding of clients’ fees.
But even then, the difference between the reduced council payment towards the fee, and the previous ‘full’ fee is not something one can ever ask a person’s relatives
to pay for! If Councils are factoring that sort of extra payment into their consideration of their s5 commissioning duties, that’s not lawful! That would just be a premium for staying put!
In Buckinghamshire, a care home placement in a home which had been ‘inadequate’ and then later re-rated as ‘requiring improvement’ was offered as suitable for meeting s117 aftercare needs. The family rejected it but the council stuck to its position that it was adequate.
The family chose to pay an extra £420 a week (this was completely free s117 aftercare accommodation to the resident, with the s117 partners paying the
basic fee for the ‘needs’) rather than accept the offered placement.
The Council was upheld in its decision that the offered home was at least ‘suitable’, but found at fault for failing to explain why.
The Ombudsman’s investigator failed altogether, however, to investigate what sort of ‘want’ the £420 covered: an extra large room or a wonderful view?
Gold taps? Better furniture? Better food?
We wonder what could possibly be being offered, beyond adequate services to meet the person’s needs at the preferred home, for that sort of massive ‘top-up’?
The investigator also assumed that the Care Act’s Choice Rights can be exercised by the family member, which is not the case for ANY top-up scenario – it’s a best interests decision by the care planners and funders, if the person lacks capacity to MAKE a choice, albeit after consulting the relatives, of course ….
On to our private client care provider Ombudsman’s reports, now:
In Advinia , a care home company charged extra to a recently deceased self funder’s estate for increased dependency fees after the death – incidentally underlining the sector trend for dependency supplements, mentioned above – and then accepted it should perhaps wipe that invoice out. Staffing turnover in its finance department and confusion upward through its managemerial staff had led it to overlook both the charging discrepancies and the bereaved person’s complaint.
The Ombudsman accepted evidence of improvements in the provider’s accounting system for both council funded and private clients, but recommended a small additional payment for the 17-month refund delay and the unnecessary extra work to which the probate solicitor must have been put.
In Midshires , a wrangle about cancellation terms in a home care company’s contract with private clients led to a 6 months’ dispute about the meaning of the company’s own terms.
The context was the business’s urgent need to free up staff for other clients’ home care if a current client no longer wanted the service, with the dispute being about the notice of cancellation of the service after any unexpected hospital admission, as opposed to the required cancellation period or a fee in default, after a planned admission to hospital or a planned holiday.
Here, yet another provider chose to refund the money charged plus pay an extra distress payment – but we aren’t 100% sure what the contract was supposed to mean, even now!
Upcoming Training
Please consider signing up for our Hospital Discharge, Choice of Accommodation and Top-Ups Short Course, starting 5 March – especially if you are a care home provider or an agency offering the NHS help with that first package back home, after hospital discharge – it’s £50 for 4 ‘punchy’ Wednesday evening sessions and recordings.
It aims to flag up gaping holes in national Discharge to Assess policy, which potentially negate people’s Care Act rights. The two Choice and Top Ups sessions will look at the rights and wrongs of looking to third parties to fund chunks of a person’s placement fee as ‘wants’, and at the impact of top-ups practice on working out what the real cost of care is, these days.
Providers Unite update
This is our link to the discussion hosted last week with two representatives from the movement, which is a free link to pass on to anyone
who might be interested.
Complaints Update
This link is the probable forerunner of the LGSCO’s likely receipt of formal legal authority to TELL councils how to run complaints.
It suggests that it is ‘good practice for councils to take a rights-based approach to complaints handling, especially in a service that is closely linked to human rights protection.’
And this is the link for an update on the Ombudsman’s guidelines about the conduct of complaints concerning care providers who have been commissioned by councils for Care Act clients’ packages.
The model code says this: “Councils may also wish to set out a definition of a service request to clarify the difference between a complaint and a routine request for a service or service improvement. We consider a service request in adult social care services to be: ‘a request that the organisation provides or improves a service or fixes a problem’.”
Take good note of that distinction, we’d advise anyone who’s having fun trying to write to a Council’s Monitoring Officer, rather than complain – and getting told that what they have done IS to complain!
It also says there is no need to go through the formal complaints system before going to the Ombudsman if one’s concern has at least been put through
an internal review first, so this will make raising public law issues with the Ombudsman much easier and quicker, and is recommended in para 10.86 of
the Guidance in any event.
This adjustment of the flow to the Ombudsman does not apply to financial assessment or charging matters, nor to complaints about privately funded
providers’ services, please note.
You need to ask for this internal reconsideration promptly: the Ombudsman’s model code says ‘Councils should signpost the person to the Ombudsman once the review
or appeal is concluded… we think that within one month from the date of the original decision is a reasonable timescale for requesting’ such a
process.
This is the link to the duty to prepare a report in every council about the complaints that have been received upheld and then referred on to the Ombudsman.
And this is our own analysis of the Ombudsman’s own shockingly high ‘upheld’ rate from those complaints forwarded which have actually been fully investigated.
Finally, for those of you who get this Alert by email, here’s last week’s private recording link to our podcast about myths related to carers’ rights. It’s part of the subscription service but free this week. We’d be very grateful if you’d ask other people to subscribe instead please.