Decision Date: 07 January 2020
Mrs D complained on behalf of her father-in-law, Mr E.
Mr E lived at a nursing home where his own money paid for his own care as a ‘self funder’. He lacked capacity to manage his financial affairs, so his son Mr D, held Power of Attorney. Mrs D helped Mr D manage Mr E’s affairs.
In October 2018 the care provider contacted the Council to say that it could no longer meet Mr E’s care needs because Mr E’s behaviour led it to have concerns for the safety of other residents. The care provider contacted the Council because Mr and Mrs D were on holiday and unreachable.
The Council agreed to pay for one-to-one care to minimise the risks associated with his behaviour and assigned a social worker to his case. Notes suggest the Council believed it could recharge Mr E for this one-to-one care.
After the Ds had returned, four days after contacting the Council, the care provider contacted Mrs D and told her of the arrangements. Notes showed that Mrs D knew about the one-to-one care but did not know the cost. She consented to ‘ASC [adult social care] funding’.
The social worker met with Mr E at the care home in October 2018 and suggested a further assessment to determine whether Mr E’s placement might qualify for funding from the NHS, known as continuing health care (CHC) funding. This was completed in mid-November 2018.
Shortly afterwards, the NHS confirmed Mr E qualified for CHC funding. The Council therefore stopped paying for Mr E’s one-to-one care.
In late March 2019 the Council sent an invoice to Mrs D for £6500, to cover the cost of Mr E’s one-to-one care for 35 days.
The Council confirmed that at no point did it put in writing to Mrs D the arrangement it had reached with the care provider to pay for Mr E’s one-to-one care. Nor its intention to recover money paid out for that from Mr E. But it said Mrs D knew of the arrangement through her conversations with the care home and social worker.
What was found
The LGO was satisfied that the Council could properly enter an arrangement to agree one-to-one care for Mr E (Annex H of the Government’s statutory care and support guidance).
The Council was allowed to fund extra care in Mr E’s best interests based on what the care provider told it, because the care provider could not contact Mr D or anyone else holding a power of attorney or deputyship to act on Mr E’s behalf.
However this position changed after four days, when Mr and Mrs D returned from holiday. The Council could not continue to pay for one-to-one care for Mr E and expect to recover that money, without the express agreement of Mrs D or other suitable family member.
The Council failed to secure consent either directly through its own efforts or via the care provider. The notes of its conversation with the care provider after they contacted Mrs D could not be taken as informed consent, as she only consented to ASC funding.
The LGO stated that the Council should have set out in writing what it had agreed with the care provider, and what it wanted from Mr E in return. Failure to do so was a failure of basic good administration. It was also contrary to the statutory guidance which stresses the basic principle that charges for care must be “clear and transparent”.
The Council was also at fault because it failed in its discussions with the care provider to check what contractual arrangements it had in place, or if it had put anything in writing to Mrs D. This meant that Ms D had:
- no adequate notice of Mr E’s fee increase
- no sufficient explanation about the agreement between the Council and care provider, and
- no notice of its intention to recover charges for one-to-one care.
When the Council invoiced Mr E, it was over five months after it agreed to pay for one-to-one care. That delay was a further fault.
The LGO recommended that the Council pay Mrs D £150 to reflect the distress caused by its actions and her time and trouble, and reduce its outstanding invoice for Mr E’s care by 50% for the following and other reasons related to a backpayment of attendance allowance.
“I have asked Mrs D if the family would have given informed consent if the arrangement had been clearly explained to them. Mrs D does not contest that Mr E needed more care or that the care provider gave this. However, she says to protect his resources the family could have sought to reduce the hours of one-to-one care, visiting and sitting with Mr E for longer. She may also have asked for CHC funding to be backdated to when Mr E’s needs changed. I think it reasonable that Mrs D would take these actions to limit the costs of the extra care. Understandably she also wanted proper notice of any fee increase and I have no reason to doubt Mrs D’s statement to me that the care provider commits in their terms and conditions to give a minimum seven days’ notice.”
Point for the public, safeguarding staff, family members, service users, attorneys, care home providers etc
When someone has an attorney or deputy managing their finances, that person is the commissioner, the purchaser, the contractor for the care.
There is a distinction between scenarios where the attorney has made the contract and is paying the private care home contract charges, and one where the person has below threshold assets and the attorney is merely managing the finances to pay the council the charges it has levied under the Care Act, where the council is the contracting party.
In this case, when the contracting party was not available whilst on holiday, a safeguarding issue arose, effectively – the person would have had to be given notice, but would have needed care in the meantime, for their own purposes and for the safety of the other residents. The care home did the right thing to contact the council, and the council did have every right to take on the responsibility for paying for one to one care – not as a best interests decision, but as a safeguarding decision, in our view.
That safeguarding plan could not be translated into an automatic right to recover the charge for it from the gentleman in question. Not only did he not have capacity to agree; he was not a social services client, he was not being provided with care under the Care Act, s18, so he could not be charged UNDER that legislation. There was a person capable of agreeing a charge, and that person was the appointed attorney. And that is why there should have been a transparent discussion about the extra charges, which would have been a discretionary charge made under the Local Government Act 2003, and not under the Care Act, because it was down to Mr D to decide whether eviction and finding another place was the better thing for Mr E – a fresh start, with a better care plan, perhaps, OR paying for what was really being required for the man not to be evicted.
The LGO also said this, which is of relevance as between the attorney and the care home: “The Council’s actions also appear to have taken no account of basic good practice in charging for care between care providers and users of their services. The Competition and Markets Authority produces detailed advice on fairness in contracts for care. This accepts that on occasion care providers can increase charges for care at short notice where needs change. But even in these circumstances, it continually stresses that some notice for fee increases must be given. It also stresses the need for changes to put in writing. This is so the user of the service or their representative can consider their position and decide if they want to remain with the care provider or move elsewhere.”
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The full Local Government Ombudsman report of Peterborough City Council’s actions can be found here