Ombudsman warns councils over responsibility for care home operators

The Local Government Ombudsman has fired a reminder to local authorities that they are responsible for the actions of care homes they work with, after one operator wrongly sought to extract top-up fees from a family.

The LGO launched an investigation into the London Borough of Merton after a contracted private home, Sutton Court Care Centre, asked the family to pay the fees even though it had no right to make the demand.

The background to the case was that Mrs B needed residential care when she was discharged from hospital in October 2010. The council had provided her daughter, Mrs A, with a list of care homes which accepted the council’s funding rates.

Mrs A then identified Sutton Court as a suitable home and Merton arranged the placement.

Sutton Court then arranged separately with Mrs A to recover the full private cost of the placement. She was not aware that she should not be paying a top-up fee as the contract for the placement was between the council and the care provider.

The error came to light when Merton asked the family to pay the difference between the allowance Mrs B was entitled to from the council and the set rate the council pays to care homes. The family believed they had already been paying her contribution.

The LGO said that as the contract for care was between the council and Sutton Court, there should have been no fee negotiation between the care home and the woman’s family. “The care home was not entitled to any more funding than the council’s usual rate.”

The Ombudsman, Dr Jane Martin, said: “I know from the many complaints that we receive that this is not an isolated case. The law is clear: it says that the actions of the care provider in carrying out these arrangements shall be treated as actions of or on behalf of the council.

“Therefore I hold the council responsible for the actions taken by the care home provider in seeking to extract extra funding from the family. I hope my report will serve as a warning to other councils that they are responsible for any contracted providers’ activities, whether they have instructed them to act or not.”

The LGO report revealed that Merton disagreed with the Ombudsman’s recommendations, saying it could not be responsible for actions taken by Sutton Court outside the scope of the contract.

The LGO said Sutton Court misunderstood the basis of the arrangement and what it was entitled to charge.

The Ombudsman recommended that Merton reimburse Mrs B the money paid directly to Sutton Court in top-up charges and seek to recover the amount directly from the care provider. (The council and the care provider have agreed to work with each other to facilitate reimbursement).

Dr Martin also called on Merton to ensure that all parties it contracts to provide care on its behalf are aware that they cannot charge extra fees for the same care directly to the service user or their family members.

Officers from the council are expected to report back to the LGO within three months on their progress.

A Merton Council spokeswoman said: “The care home had no right to ask the woman’s family for top-up fees and they did not alert us to their actions. We will fully reimburse the relatives of the lady concerned and seek recovery of these costs from the care home. We are also reviewing our contracts to ensure that a provider is never able to do this again.”