Decision : Upheld
Decision date : 12 Sep 2019
The Ombudsman's final decision:
Summary: Ms N complained about the health and social care support provided to her late father Mr N by the Council, Trust and GP Practice when he became homeless. The Ombudsmen have found fault by the Council and Trust in relation to the information provided to Ms N about the care home, including funding. This caused Ms N unnecessary stress and confusion, and potentially left her or Mr N’s estate out of pocket. The Ombudsmen have found no fault by the GP Practice. The Council and Trust have accepted our recommendations, so we have completed our investigation.
- Ms N complains about the care and support provided to her late father, Mr N, by Bury Metropolitan Borough Council (the Council), Pennine Acute Hospitals NHS Trust (the Trust) and Ribblesdale Medical Practice & Townside Surgery (the GP Practice) from September 2016 to May 2017. In broad terms Ms N complains the organisations individually and collectively failed to support Mr N and his family when an emergency developed in September 2016 in which he became homeless. In particular Ms N complains the Council and Trust failed to adequately discuss care home funding with her. She said this meant she could not make informed choices about this and had to pay top-up fees. I have set out further details of the complaints later in this decision.
- Ms N says the actions of the Council, Practice and Trust caused her and her father great distress and left the family financially worse off, through avoidable fees and lost income. She says this resulted in her suffering stress-related illness.
- Ms N would like the Council, Practice and Trust to recognise they failed her and her late father and apologise for this. She would also like them to provide a financial remedy in recognition of the distress caused. In addition, Ms N would like the Council to refund the care home fees and waive any outstanding fees.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, a single team has considered these complaints acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended). If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- When considering complaints, if there is a conflict of evidence we make findings based on the balance of probabilities. This means we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- The Ombudsmen cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- As part of my investigation of this complaint I have considered:
- Information Ms N provided verbally and in writing
- Written information from the Council, Trust and GP Practice
- Relevant legislation and guidance
What I found
- In September 2016 Mr N became homeless after his wife asked him to leave their marital home. Mr N was 76 and had several physical health conditions and difficulties with memory and cognition. He needed support with a range of everyday activities. The Council had arranged 15 hours per week of support at a day centre since January 2016. Mr N paid for this support himself as his savings meant he did not qualify for financial help from the Council.
- On 11 September 2016 Mr N went to stay with his daughter Ms N, after his wife said she could not cope and asked him to leave. On 12 September Ms N asked the Council to find sheltered accommodation for her father. However, on 27 September Ms N contacted the Council again and said her father’s condition had worsened and he now needed more support than sheltered accommodation could provide. She said the situation was an emergency and
Mr N could no longer stay with her.
- The Council said it did not have any emergency beds available for Mr N, and that a GP would need to assess him to check for any underlying issues that might have caused his sudden deterioration. Ms N tried to get her father assessed by his GP Practice in the Bury area. The Practice said it would not carry out a home visit and advised her to contact an Out of Hours GP Service for the assessment.
- Ms N took her father to an Out of Hours GP Service in the early evening of 27 September. This service said it had not found anything unusual, and the only alternative would be to take Mr N to A&E for further checks. Ms N took her father to A&E at the Trust and he arrived around 8.30pm. The hospital kept Mr N in overnight and, the next day, assigned a ‘Navigator’ to his case. The Navigator Service helps people who are medically fit for discharge from hospital but who may not be able to return home for various reasons. The Navigator Service can arrange emergency temporary placements if needed, or urgent care packages so a person can be discharged home.
- The Navigator decided Mr N should be discharged to a residential dementia respite placement. She asked the Council for details of suitable homes with vacancies. The Council’s Rapid Response Team gave the Navigator details of two homes with availability, at different cost rates, and asked the Navigator to discuss the options with Mr N’s family.
- The Navigator called Ms N. I will turn to the details of this call later. However, in brief, the result was that Mr N would go to Care Home B. Ms N took Mr N there mid-afternoon on 28 September. When they arrived, Care Home B said it was not expecting Mr N, but the Home then assessed Mr N and decided he could stay. The Council said it would need to assess Mr N’s finances to decide how the placement at Care Home B would be funded. At that point the Council was aware both Ms N and Mr N’s wife had joint and several Lasting Power of Attorney for decisions about Mr N’s health and welfare and his finances. The Council also knew Mr N had been paying for his day centre package as a self‑funder due to the amount of his capital.
- Just over a week later the issue of funding the care home placement was still outstanding. There were discussions between Ms N and social workers about various possibilities. This included whether Mr N’s savings would be paying for the placement, whether the Council would also make a contribution, and whether Ms N would need to pay a top-up fee. From the middle of October 2016 Care Home B sent Ms N monthly invoices for the full cost of Mr N’s placement. The Council also sent statements of account for the cost of the placement from October onwards.
- In mid-October Ms N emailed the Council to raise concerns about how it had handled the situation. She said the Council had given her incorrect information and organisations had turned her and her father away when they needed help.
- On 14 October Mr N’s social worker assessed his care needs. She decided it would be safe for him to live in the community with support. Ms N disagreed and felt Mr N would only be safe with 24-hour care. The Council said there would need to be a Best Interests Meeting, involving an Independent Mental Capacity Advocate (IMCA), to resolve the matter.
- Mr N remained in Care Home B. The Council assessed Mr N again toward the end of November 2016. The social worker found Mr N’s health to be much worse than before. The Council asked a GP to assess Mr N for dementia. The GP assessed Mr N at the end of December and found Mr N had dementia.
- The Council applied for an IMCA in early December, and a Best Interests Meeting took place on 3 February 2017. By the time of the meeting there was effectively no longer a dispute to resolve, as Ms N was Mr N’s sole attorney at that point. She felt it would be in Mr N’s best interests to stay at Care Home B. Mr N remained there until he went to hospital in May 2017. He then stayed in hospital until he died in early June 2017.
- Ms N wrote a complaint to the Council on 1 March 2017, which the Council received on 28 April due to an issue with the address. The Council responded on 14 July 2017. As Ms N was unhappy with the response she complained again on 2 October 2017. The Council responded on 2 February 2018, including a response from the Trust. Ms N complained again on 22 May, and the Council replied on 13 June to say it had nothing further to add.
What should have happened – law and guidance
Local authority assessments of need
- The Care Act 2014 sets out that councils must carry out an assessment of need for any adult who appears to have a need for care and support. The council must carry out an assessment regardless of a person’s finances or whether the council thinks they have eligible needs. The assessment must involve the individual concerned and their carer or any other person they might want involved where appropriate.
- If a council decides an adult meets the eligibility criteria for care and support, it will provide a support plan which outlines what services are needed to meet the needs and a personal budget which calculates the costs of providing those services.
Local authority financial assessments
- If an adult meets the council’s eligibility criteria for care and support, section 17 of the Care Act 2014 states the council must carry out an assessment of the person’s financial resources. This assessment is to find out what amount (if any) the person can afford to pay towards their care. (Care and Support (Charging and Assessment of Resources) Regulations 2014/2672).
- A person with more capital than the upper capital limit of £23,250 can ask the council to arrange their care and support. However, they are not entitled to receive any financial help with their care from the council. The person (a self-funder) will pay the full cost of their care and support until their capital falls below the £23,250 limit.
- Once a person’s capital is below the £23,250 limit the council must carry out a financial assessment to decide how much the person should pay towards their care costs (the ‘assessed contribution’) and how much the council will pay. The council must give the person or their representative a written record of the financial assessment. Councils must make sure there is information and advice available in a suitable format to ensure care home residents and their representatives understand charges. (Care and Support Statutory Guidance (2014))
- In some circumstances the council may choose to treat a person as if a financial assessment has been carried out (a ‘light touch’ financial assessment). The council must be satisfied, based on evidence provided, that the person has financial resources above the upper capital limit of £23,250. The council must be satisfied the person can afford to pay the charges due, will continue to be able to do so, and is also willing to do so. (Care and Support Statutory Guidance (2014))
- When it has been decided a person’s needs are best met in a care home the council must ensure at least one accommodation option is available within the person’s personal budget, and it should ensure there is more than one of those options. The council must ensure the person has a genuine choice of accommodation.
- A person can choose alternative options, including a more expensive care placement, if a third party or in certain circumstances the resident is willing and able to pay the extra cost (the ‘top-up fee’). An extra payment must always be optional and never as a result of commissioning failures leading to a lack of choice. The council must not ask for a top-up fee unless a person has actively chosen a more expensive placement.
- Annex A of the Care and Support Statutory Guidance also says where a council arranges care for a self-funder, the council may choose to enter into a contract with the care provider or it may broker the contract on behalf of the person. Where the council is arranging and managing the contract with the care provider, it should ensure clear written arrangements are in place about how costs will be met including any top-up.
- The Statutory Guidance requires a council to ensure a top-up payer can afford to meet the top-up cost. It must enter into a written agreement with the payer. The agreement must include the extra amount to be paid, the amount specified for the accommodation in the personal budget, to whom the payments are to be made, and a statement on the consequences of stopping payments. Before making the top-up agreement, the council must provide the top-up payer with enough information so they understand it.
- The Statutory Guidance says councils should avoid arrangements where top-up fees are paid directly to the care provider.
Responsibility for the Navigator Service
- The Council and Trust have not provided a clear or definitive account of which organisation, or both, was responsible for the Navigator Service involved in this case. As outlined earlier in this decision, the Navigator Service helps people who are medically fit for discharge from hospital but who may not be able to return home for various reasons.
- The Council told us the Navigator carried out an assessment and completed a Goal Plan on behalf of the Council’s Rapid Response Team, as a standalone ‘Rapid Response Assessment’. The Council said if a respite placement is needed as in this case, the Navigator will arrange this with support from the Rapid Response Team. The Navigator must also inform the customer about costs / funding and the financial assessment.
- We asked the Council to confirm whether the Navigator was carrying out a social care function on behalf of the local authority in this case, based on the information above. The Council responded that the Navigator was a Trust employee and the job description and person specification for the role do not refer to the Navigator working on behalf of the local authority.
- The Ombudsmen will consider, in a complaint involving an NHS body and a council, whether there are formal or informal arrangements between the two bodies and the nature of those arrangements. Where the distinction between roles and responsibilities is unclear, the Ombudsmen will not spend disproportionate time deciding individual responsibility. In these situations, if the Ombudsmen find fault they will attribute it to both organisations, and expect the organisations to resolve responsibility for any remedies they should carry out. On that basis, I have attributed any fault arising from the actions of the Navigator to both the Council and Trust.
Analysis – was there fault leading to injustice?
Support from the Council and GP Practice before Mr N attended hospital on 27 September 2016
- Ms N complained the Council failed to support her father when an emergency developed in September 2016 during which he became homeless
- The Council said Mr N’s case was screened and the Locality Team was working it from 12 September onwards, when Ms N first made contact to ask for support with housing. The Council advised Ms N to contact the local authority for the area where her father was living at that time if he needed immediate support. The Council said once Mr N returned to the Bury area it would assess his social care needs.
- The Council said there was nothing to indicate a crisis or priority until 27 September when Ms N got in touch to withdraw the housing application and to ask about support for her father. On that day, the Rapid Response Team advised Ms N to get her father seen by her GP to check for underlying issues. It said if appropriate the GP could make a referral to the Crisis Response Team. Later, the Emergency Duty Team made several attempts to get emergency short-term care arranged for Mr N but nothing was available. The Emergency Duty Team made several phone calls to care providers, the GP Practice and the Crisis Response Team. By that time Ms N was already at the Out of Hours GP Service with Mr N.
- I have found no evidence of fault in the actions of the Council for this period. While Mr N was living outside of the Council’s geographical area it had no duty to assess him or provide social care support. Under the Care Act 2014 a Council only has to meet the needs of an adult who is ordinarily resident in its area, unless the needs are deemed urgent. They were not deemed urgent for the period when Mr N was living outside the area.
- I consider it reasonable that the Council said it would assess Mr N’s needs when or if he returned to the Bury area. The Council also signposted Ms N to approach the local authority where her father was staying if he needed urgent support. I have seen no evidence of fault here.
- When events developed on 27 September, the Council liaised with the GP Practice, Emergency Duty Team and Crisis Response Team and enquired about available emergency short-term placements. The Statutory Guidance makes it clear that local authorities should work with health organisations and other partners to provide targeted information and advice in a crisis. I consider it was reasonable for the Council to try to establish any underlying health reasons for Mr N’s deterioration before making decisions about providing support for his needs. On 28 September the Rapid Response Worker provided the Navigator with details of two placements with availability so Mr N could be discharged to a dementia respite placement. I have found no evidence of fault here.
- Ms N complained the GP Practice refused to visit her father to assess him, and misinformed her about what she would need to do to access a medical assessment.
- The GP Practice said Ms N telephoned them mid-afternoon on 27 September to ask for an urgent GP visit, on the advice of social services. This was not possible as the GP was busy in surgery. The Nurse Practitioner liaised with the Council’s Crisis Team and spoke with the GP. The GP said Ms N should contact the local Out of Hours GP for an assessment, as the Practice did not offer home visits to patients out of the area. (It appears the GP was unaware at that point that Mr N had already returned to the Bury area.) The Nurse Practitioner told Ms N this at 5.46pm. At 6.32pm social services called the Practice, asking whether it had made a referral to the Crisis Response Team, and telling the Practice that Mr N was back in the local area at his former home. The Practice Reception said the Practice had closed for the day at 6.30pm, and social services said they would advise Ms N to take her father to an Out of Hours GP Service.
- The GP Practice followed its policy on Home Visits and the NHS England Personal Medical Service Contract (the PMS Contract) relating to Temporary Residents. The Practice Home Visit Policy states that if a patient is not at their home address and is outside the practice boundary, it may be necessary to ask them to contact a local GP to be seen as a temporary resident. The PMS Contract states at sections 6.1 and 6.2 that a GP may accept a person as a temporary resident if they are satisfied the person is temporarily away from their normal place of residence. Here, the Practice advised that Mr N should be seen at a local GP out of hours service as he was thought to be outside the Practice’s catchment area. By the time the Practice was aware Mr N was back in the Bury locality, the surgery was closing for the day. It was reasonable to advise Ms N to take her father to an Out of Hours service. I have found no fault in this aspect of Mr N’s care.
Discharging Mr N to Care Home B
- Ms N complained her father was discharged from hospital to a dementia bed in a care home without the Council or Trust exploring other options. She said they did not give her any choice and she had no input into the decision. Ms N also complained the Council and Trust failed to tell Care Home B that Mr N was being discharged there or to provide relevant documentation.
- The notes made during Mr N’s hospital admission on 27 and 28 September make it clear that Mr N could no longer go back to the marital home. Ms N said she could no longer cope with looking after him and was seeking social support as she felt he needed 24-hour care. The Navigator arranged a two‑week dementia respite placement at Care Home B. She documented that Ms N consented and was told about the cost of £775 per week (later found to be £795 per week). The Navigator also documented she advised Ms N she would need to support her father in finding a longer-term placement and would need a care package.
- The Ombudsmen cannot question the outcome of an assessment where there is no evidence of fault in the way the organisation reached the decision. The Navigator took information from Mr N, Ms N and Mr N’s step-daughter to find out what his needs were. The hospital records from medical staff mention concerns about Mr N’s cognitive ability, confusion and possible dementia. The Navigator decided Mr N could not be discharged home and needed a respite dementia placement. The Navigator’s assessment took into account relevant factors in line with the Care Act 2014. There is no evidence of fault in the way the Navigator carried out her assessment. Therefore, I cannot question the decision that
Mr N needed a two-week dementia respite placement. I also note that Ms N herself said she felt Mr N needed 24-hour care.
- Mr N did not have capacity to make decisions. The Navigator discussed plans for his discharge with Ms N who had joint and several Lasting Power of Attorney in relation to health and welfare matters and finances, and with Mr N’s step‑daughter. There is no evidence of fault by the Navigator in this respect as she consulted with relatives as appropriate.
- The Council’s Rapid Response Team provided the Navigator with details of two care homes with suitable vacancies. There was Care Home A at £575 per week for private payers and a top-up fee of £30, and Care Home B at a cost of £755 per week. (It later transpired the actual rate was £795 per week). The social worker asked the Navigator to discuss the options with Mr N’s family and let him know the outcome. However, the documentation indicates the Navigator only discussed the placement at Care Home B with Ms N. There is no mention of discussion about Care Home A. There is also no evidence the Navigator had any discussion with Ms N about top-up fees.
- Ms N complained she had no choice about the care home placement. The records I have seen indicate the Navigator only discussed one placement with
Ms N. The Navigator should have given Ms N details of both care homes with availability. The Council and Trust have not been able to provide any explanation as to why she did not. This was fault. One placement was around £200 per week more expensive than the other. Ms N had concerns about finances and affordability of care. On balance of probabilities it seems likely Ms N would have chosen the cheaper placement if the Navigator had offered both. This fault caused an injustice to Ms N (as Lasting Power of Attorney for Mr N’s finances). This is because she was denied the opportunity to choose from the two available placements, one of which was significantly cheaper than the other.
- The Navigator failed to confirm with Care Home B that Mr N was being discharged there, so when Ms N and Mr N arrived the Home was not aware he was coming. This lack of communication was fault. It caused an injustice to both Mr N and Ms N as they were distressed and confused about whether the placement was going ahead. Care Home B did then agree to assess Mr N and started his placement there.
- The Trust told us that normally it would send the discharge summary to the placement, with a written handover. The Trust has apologised and said the ward has since implemented a Discharge Checklist. The Discharge Checklist is to ensure that staff liaise with relevant teams and supply correct information to the discharge placement.
Whether an ongoing placement at Care Home B was needed
- Ms N complained that when the social worker assessed her father on 14 October, she decided Mr N could live in the community with a package of care. Ms N complained that both she and the staff at Care Home B felt this would be unsafe for him.
- Ms N said she did not agree with the outcome of the assessment. The social worker said the Council would need to appoint an IMCA and there would be a Best Interests Meeting to decide the matter. In the end, Mr N remained at Care Home B which was the outcome Ms N wanted in the first place.
- In relation to the social worker’s assessment, as outlined previously the Ombudsmen cannot question the outcome of an assessment where there is no evidence of fault in the way the organisation reached the decision. The social worker carried out a face-to-face assessment of Mr N in the presence of his wife, son and step-daughter who were in agreement with her conclusions and proposals. She also discussed the assessment with Ms N, who did not agree. There is no evidence the social worker failed to take into account relevant information as part of her assessment. In addition, as a result of Ms N’s objection the decision was deferred so a Best Interests Meeting could take place. I have seen no evidence of fault in this aspect of Mr N’s care.
Information provided about cost of care home placement – September to December 2016
- Ms N complained the Council and Trust did not give any options for an alternative cheaper placement than Care Home B, and did not tell her about top-up fees before the placement started. She also complained the Council continued to give vague and inadequate information about how the placement would be funded.
- As outlined earlier in this decision, it is unclear whether the Navigator was acting on behalf of the Council, the Trust or both. I have therefore attributed any findings of fault to both organisations.
- There is no record of the Navigator giving any information to Ms N about top-up fees. The only financial information discussed was that the rate was £775 per week (later confirmed as £795 per week) and that the family would have to arrange to pay this.
- Once Mr N was at Care Home B, records show the Council gave Ms N confusing, unclear and potentially misleading information about how the placement would be paid for, particularly in early to mid-October 2016. This compounded the fault by the Navigator in not providing details of both available placements and the costs involved.
- Information the social worker gave to Ms N suggested that part of the fees would be paid by the local authority from the outset. The social worker said the Council would only pay the local authority rate of £445.48 and that any private rate ‘top-up’ would be the family’s responsibility. She also said that NHS Continuing Healthcare was not funding Mr N’s care, and the placement at Care Home B would be paid for ‘through the Local Authority following assessment and you will be notified of what [Mr N’s] contribution to his funding will be. I have asked [Care Home B] to discuss their private third-party top-up fees when she sees you.’
- The Council told us that Mr N had only just been discharged from a previous respite stay where he was self-funding due to his means. On that basis, the Council had recent information available to suggest Mr N was likely to be self‑funding. However, the Council did not complete the first financial assessment until 6 January 2017, after Mr N had been at Care Home B for over three months. This assessment determined that Mr N was a self-funder. In addition to Ms N receiving unclear information about funding at the outset, she also received invoices directly from Care Home B for the cost of the placement and statements of account from the Council for some of the same fees. Understandably this caused confusion to Ms N.
- The Council said in its complaint response that there was nothing to indicate to staff including the social worker that Ms N had not actively chosen the placement at Care Home B as a preferred discharge destination. It said if this had been raised with the social worker, it could have explored other available options and top-up arrangements. The Council also said if it was aware Ms N had not actively chosen that placement, it could have considered top‑up arrangements if there were no other placements available within local authority rates or where fees could not be negotiated.
- As stated earlier in this decision, the fault by the Navigator in not discussing both care home placements led to the situation where Ms N only thought there was one option, at Care Home B. She did not exercise any active choice in where her father would be placed. I accept the social worker may not have been aware that Ms N had not actively chosen that placement. However, the fault by the Navigator created this situation, it was not of Ms N’s making.
- The Statutory Guidance states that where a council arranges care for a self‑funder, the council should assure itself that robust contractual arrangements are in place. These must clearly set out where responsibilities for costs lie, and ensure the person understands these arrangements. This did not happen in
Mr N’s case. For the period up to 1 January 2017, Ms N received invoices and statements of account from both Care Home B and the Council. There was no clear written agreement in place about how the fees would be paid. The Council has confirmed to us that it did not make any written agreements with Ms N about charging for Mr N’s placement at Care Home B (including any top-up fees) for the whole period of his stay there. This was fault. It caused an injustice to Ms N as she was unable to properly understand the financial implications of the placement. As a consequence, she could not make informed choices about her father’s care and how it would be paid for.
Information provided about cost of care home placement – 1 January 2017 onwards
- The Council started paying a contribution towards the cost of Mr N’s placement with effect from 1 January 2017. The Council determined this after a financial assessment on 1 March 2017 and backdated the decision. From 1 January (backdated), the Council paid £292.53 per week and Mr N’s assessed contribution was £152.95. There was no record of the amount of any top-up fee payable. The rates changed in April 2017 and the documents showed the payment split as £155.99 from Mr N and £304.05 from the Council. The total amount being billed by Care Home B was still £795 per week from 1 January 2017. This rose to £830 from 1 April. This meant there was initially a shortfall of £349.52 per week from 1 January. This was then a shortfall of £369.96 per week from 1 April onwards, between the amount Care Home B was charging and the amount of the combined payments from the Council and Mr N’s assessed contribution.
- Once Mr N’s capital fell below the threshold and he was no longer a self-funder, the Council was under a number of duties to Mr N and Ms N under the Care Act 2014.
- Where a Council arranges and manages a contract with a care provider, it should ensure there are clear written arrangements in place about how costs will be met including any top-up element. The Ombudsman’s report ‘Counting the Cost of Care’ (2015) makes it clear that Councils need to provide families with information in writing about the choice of care home. This includes the costs, how to meet them and whether a top-up will be payable. Councils should also have a written agreement with the person paying a top-up fee.
- Mr N had already been a resident at Care Home B for several months before the Council became responsible for paying for part of his care and support in January 2017. Nevertheless, at that point the Council should have ensured there were written agreements about the charges for the placement, including payment of any top-up fees. The Council has confirmed to us that no written agreements were made with Ms N about charging for Mr N’s placement at Care Home B (including any top-up fees) for the whole period of his stay there. This was still the case even after the financial assessment on 1 March 2017 determined that the Council should pay towards the costs of his care.
- At the point the Council started paying towards the cost of Mr N’s care, it was under a duty under the Care Act 2014 to ensure at least one accommodation option was available within Mr N’s personal budget that did not attract a top-up fee. The financial assessment provided for the period 1 January 2017 onwards states the weekly cost of the home was £445.48. This was split into an assessed client contribution of £152.95 and a Council payment of £292.53. There is no mention in the financial assessment document of the total weekly fee of £795, which would involve an additional payment of £349.52 per week to make up the total amount of £795.
- There is no evidence the Council considered offering a cheaper placement from 1 January 2017 onwards that did not involve payment of a top-up fee.
- An additional payment (top-up fee) must always be optional and never as a result of commissioning failures leading to a lack of choice. Councils must not ask for a top-up fee to be paid unless a person has actively chosen a more expensive placement. For the reasons detailed earlier in this decision, Ms N did not get a choice of placement and had not exercised any choice to select a more expensive placement that involved a top-up fee. It was fault that the Council did not either offer a placement which would not incur a top-up fee, or offer to increase the personal budget if there were no suitable alternative placements, from 1 January 2017 onwards. It was also fault that the Council did not enter into a written agreement with Ms N about the costs of the placement including payment of a top-up fee. I appreciate that the Council was waiting for a Best Interests Meeting in order to determine Mr N’s long term placement. However, this does not take away from its responsibilities to Mr N and Ms N under the Care Act 2014. This fault caused an injustice to Ms N. Care Home B continued to hold her responsible for paying the difference between the total weekly fees at the home and the amount being paid by the Council and by Mr N’s assessed contribution.
Information provided about whether Mr N could pay his top-up fee
- In March 2017 the new social worker told Ms N the top-up fee could be paid from Mr N’s own funds. On 11 May 2017 the Council wrote to Ms N to say Mr N should not be paying his own client contribution. It appears this email (when read in context) was actually referring to payment of the top-up rather than the client contribution.
- The Care Act and the Statutory Guidance state there are limited circumstances in which a person can pay their own top-up fee, rather than a third party paying it. These circumstances do not apply in this case. Therefore, the top-up should not have been paid from Mr N’s funds, and it was fault that the Council said this was the case. This caused an injustice to Ms N as she continued to find it difficult to understand the financial implications of the placement and how it would be paid for.
- The Council and Trust’s actions caused Ms N avoidable confusion and distress about financial matters. This was during a period when she was inevitably already distressed about Mr N’s ill-health, and ensuring his health and social care needs were met and his finances were managed appropriately.
- Ms N was denied the opportunity to choose between the two available placements, one of which was significantly cheaper than the other. She was also denied the opportunity to make informed choices about her father’s longer-term care placement and how it would be funded.
- Had there been no fault, it seems likely that Ms N would have chosen the cheaper placement at Care Home A from 28 September 2016 onwards, bearing in mind the concerns she voiced about finances and affordability. As a result of the fault, her father (a self-funder due to his capital) was placed at Care Home B which was considerably more expensive.
- In addition, Care Home B continued to hold Ms N responsible for paying the difference between the total weekly fees and the amount of the Council and Mr N’s combined contributions, from 1 January 2017 onwards.
- Ms N suffered avoidable stress over a relatively prolonged period, above and beyond the expected stresses of dealing with a situation like this.
- Ms N also said she had time off work due to the stress of dealing with the complaint and related financial matters, resulting in a loss of income. Although I have found fault, this was inevitably a stressful situation due to Mr N’s rapidly deteriorating health and a fraught family situation including disputes about Mr N’s care and finances. I cannot discount the possibility that this situation in itself could have caused enough stress to lead to time off work. Whilst the fault by the Trust and Council is likely to have aggravated the situation, I cannot say even on balance of probabilities that Ms N would not have missed time from work in any event.
- Ms N told us she had to stop working to support her father as the organisations failed to provide the support required. The fault I have identified relates to the provision of information. I have not found that the Trust and Council failed to provide suitable care to meet Mr N’s needs. On that basis, I have not found a link between the fault I have identified and this claimed injustice.
- Ms N said the Trust’s failure to share discharge information with Care Home B meant her father was left without the specialist bed he required. I have not found this to be the case. Mr N had a respite dementia bed, and it was later considered to be in his best interests to remain at that placement long-term. I have not seen evidence that the placement did not meet his needs.
- Mr N and Ms N suffered avoidable distress as a result of the failure to confirm the placement at Care Home B. They were unclear about whether the placement was able to go ahead when they arrived.
- As Mr N has sadly died since these events, it is not possible to remedy the injustice caused to him in terms of distress. I made the following recommendations to remedy the injustice caused to Ms N as a result of the faults I have identified. The Council and Trust have accepted the recommendations.
- I have taken account of the ‘Guidance on good practice: Remedies’ published by the Local Government and Social Care Ombudsman, and the Parliamentary and Health Service Ombudsman’s guidance on financial remedy. Both organisations aim to put the person or people affected back into the position they would have been in without the fault, if this is possible. Where this is not possible, they may recommend financial payments as a symbolic acknowledgement of the distress or difficulties caused by the fault.
- The Council and Trust will write to Ms N within one month to acknowledge the faults I have identified and apologise for the impact of this on her and her late father.
- Within two months the Council and Trust will arrange to reimburse Ms N / Mr N’s estate for the monies that would not have been paid if Mr N’s care home placement had been arranged without the faults I have identified. The Council should review this case and calculate the amount due to Ms N / Mr N’s estate as a reimbursement. The Council should also determine whether any care fees outstanding, either to Care Home B or to the Council, should now be written off. As outlined above, this recommendation aims to put Ms N / Mr N’s estate back in the position it would have been in if there had not been fault. The Council and Trust should split this payment equally (50:50).
- To acknowledge the stress and upset caused to Ms N by the faults I have identified, and her time and trouble in pursuing the complaint, within two months the Council and Trust will pay her £350 (in total) in financial redress. The Council and Trust should split this payment equally (50:50).
- The Council will consider what action it needs to take to ensure:
- it offers at least one care home placement within a service user’s personal budget and without the requirement for a top-up fee;
- where there is more than one placement option available, the available options are discussed so there is genuine choice;
- it does not arrange care home placements which require a top-up fee when no written top‑up agreement is in place;
- it provides clear information in writing about the responsibility for care home costs, including payment of any top-up fees, and that the service user / their representative understands this; and
- it gives accurate information to service users / their representative about the limited circumstances in which a service user can pay their own top-up fees.
- The Trust and/or Council will ensure that when a patient / service user is being discharged from hospital to a placement, it confirms the placement before the discharge takes place and relevant information is provided to the placement.
- The Council and Trust will write to Ms N within two months to explain how they have or will change their procedures and practice to stop similar faults happening again. This should include the matters I have listed at paragraphs 90 and 91. They should include an explanation of how they will monitor the effectiveness of any changes made.
- The Council and Trust will copy their correspondence to Ms N, to the Ombudsmen and to the Care Quality Commission. The Trust will copy its correspondence, along with a copy of this decision statement, to NHS Improvement.
- There was fault by the Council and Trust in relation to the information provided to Ms N about her late father’s care home placement, including how it would be paid for. This caused Ms N unnecessary stress and confusion, and potentially left her / Mr N’s estate out of pocket. There was no fault by the GP Practice. The Council and Trust have accepted our recommendations, so the Ombudsmen have completed their investigation.
Investigator’s decision on behalf of the Ombudsmen
Investigator's decision on behalf of the Ombudsman