Sandwell Council at fault for allowing a person to be charged under a private ongoing contract, entered into wrongfully, without involving the council who had paid the home for respite

Decision Date: 21st November 2019

What Happened

Miss X complained on behalf of her late father, Mr F.

Miss X was the main carer for her parents, Mr F and Mrs T. They both had up to date care plans and financial assessments. In August 2018 they went to a residential care home on a respite placement, commissioned and funded by the Council. Mrs T left in late August, and for reasons unexplained in the LGO report, Mr F stayed on a permanent basis. Also not mentioned in the report is whether Mr F was deemed to have mental capacity or not, a feature absolutely central, in our view, to the points made by the LGO about the contract he had been prevailed upon to enter into unbeknownst to his family.

During November 2018, Mr F wanted to return home to his wife and Miss X. The care home told Miss X that she had to give 30 days’ notice as required in the contract (without specifying which contract they meant, perhaps – it is impossible to tell).

Mr F left the care home in December 2018 with 12 days still remaining on the notice period.

The final invoice sent to Miss X showed Mr F’s fees as charged at the private rate, rather than the lower Council commissioned rate under the original contract. It included a charge for the 12 days’ notice period.

Miss X complained to the care home about the final invoice. She said that the contract made no reference to the 30 days’ notice period, and was unhappy about the higher rate. The care home said that the Council had agreed to fund Mr F’s care fees until the end of November 2018, after which he became a private resident, and that she had been fully informed about the notice period before Mr F’s placement began at the very beginning of his stay (for respite).

What was found?

The Council had not previously investigated Miss X’s complaint, because she complained directly to the care home.

After the LGO made enquiries, the Council concluded that the care home had entered into a private funding agreement with Mr F, and this was against the contractual conditions in place between it (the Council), and the care home. It was unclear from the report how that second contract had come about or how the nature of the contract changed from temporary respite care, to a more permanent agreement.

From the LGO report we can only glean that the nature of the contract changed in November, when Mr F incorrectly became a ‘private resident’.

Seeking to secure the entry of Mr F into a private contract was fault on the part of the care home. It meant the care home thought it could charge Mr F at private rates for the latter stages of his stay.

The LGO considered that although it was the care home that incorrectly contracted with Mr F, the Council had already begun addressing these faults with the care home. It stated ‘as the Council commissioned the care, the findings of fault are findings against the Council as the care home was acting on the Council’s behalf.’

As the private arrangement had come about as a result of fault, the original agreement between the care home and the Council legally remained in place, as far as the LGO was concerned.

The contract between the care home and the Council only allowed for a one-week notice period, but care home insisted that Mr F give 30 days’ notice.

This was fault and meant Miss X was left with an avoidable final invoice for Mr F’s care fees which caused her distress and time and trouble.

The Council said it would address these faults with the care home and proposed to pay all of Miss X’s outstanding fees owed to the care home. The LGO considered this a suitable remedy to the injustice caused to Miss X.

Points for the public, families, service users, deputies attorneys and care homes

This complaint and the report into it illustrate that it is essential to know what a person’s status is at any given point on the ‘Care Act’ or ‘private care’ services continuum.

These clients were commissioned for at the beginning – that means that they were getting temporary respite care, which is always (in our view) contracted for on the basis of week by week. Notice does still have to be given, but by the Council. The nature of the contract is not for a fixed term. Temporary respite care is never charged for (from the council to the client) at the same rate as private or even council funded long term care.

The basis of service provision between a home and an individual should not be turned into privately funded care services provision on the quiet, in terms of ethics, we think, without more thought – because that will often amount to clear exploitation of the fact that the person probably doesn’t know that they have a right to have care home care paid for under the Care Act, (subject to charging back by the council, of course) IF they have eligible assessed unmet needs after a period of respite, AND have less than the threshold amount of being assumed to be able to meet their own needs, OR if they lack mental capacity to make a private care arrangement and have no-one else to make it for them or on their behalf. That is the law. Care home owners need to act professionally and that means knowing the law as to their clients’ rights.

We are frustrated not to know whether the council had ever even thought that IT had ended the respite contract, ie that Mr F was going home but he or his family changed their minds about that, and never told the council?

Even if the council’s contract had never been properly terminated by the care home or by the council it does not mean that it ran on, as a matter of law, if another contract superseded the prior one for care of the very same man by the same care home. A court would regard the old contract as terminated by conduct, we feel. But it all depends on how any such later contract had been supposedly brought into being, and that would turn on the capacity of the gentleman in question.

The ethics of what’s happening would turn on the question of what the care home knew of the person’s financial circumstances: if it knew the man was not well off, by some means or another, then not telling a person about their rights to Care Act and council responsibility would be really poor practice. If the person presents as or was known to be wealthy, and capacitated, though, it’s quite a bit different, we think, and open to a home to offer a person the chance to stay on in the same room for more money, simply because that IS the model on which the care sector operates.

If a person is fully capacitated (which we do not know in this case from the report), and had been benefiting from inexpensive subsidised respite care regardless of a full Care Act assessment, or a financial assessment, and seemed well off, one can understand why a care home might well say to that person, ‘Do you want to stay on for a bit longer? We’d love to have you and here is a contract….’

And if that person can sign a document, and does, then the care home would not think that it was doing anything wrong. That is what happens, after all, on a 12 week disregard – at the end of that contract, on the council’s paperwork, people stay on although their equity in their house has become visible and they are ‘above threshold’, and the ABSENCE of an ongoing arrangement under a deferred payment agreement, for instance, by the council, is taken, in cases where someone is capacitated, as justifying the conclusion that they are now choosing to stay in that care home. We know this is the law because of all the ordinary residence decisions by the Secretary of State when the place where the council care home contract was originally made is out of area but the person stays on and becomes the responsibility of the out of area council when their capital finally depletes under the threshold, later on.

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The full Local Government Ombudsman report of Sandwell Metropolitan Borough Council’s actions can be found here