Summary: The Council completed a review of adult social care needs, which showed a change was needed to the care and support plan. The Council failed to then complete an assessment, in accordance with statutory guidance. The Council failed to follow its Continuing Healthcare policy as it did not complete a Checklist in this case or provide a copy to the Clinical Commissioning Group. This caused the complainant some time and trouble, and uncertainty about whether the outcome might have been different, for which the Council will apologise. The Council will remind staff to follow its policy, the law and statutory guidance.

The complaint

1. The complainant, who I will call Mr C, says the Council failed to follow the National Framework for NHS Continuing Healthcare (CHC) and NHS-funded Nursing Care. Mr C says these breaches are maladministration, gross negligence and a failure in its duty of care towards his mother (Mrs D).
2. Mr C says a nursing home and a residential care home also failed in their duty of care towards Mrs D and acted negligently. The Care Providers’ failed to log with the Clinical Commissioning Group (CCG) that Mrs D was not eating, taking medication, had become doubly incontinent and had limited movement. This all meant the family had to extend Mrs D’s stay and incurred the associated costs.
3. The family asked the Council for an assessment for CHC, and say the Council never properly completed and recorded it. Had the Council done so the family would have understood the rationale for the Council’s decision on eligibility and there would have been information for the CCG to work from.
4. Mr C says the Council put pressure on the family to move their mother to a residential care home, which meant his sister had to concentrate on this rather than spending time with her mother in the last month of her life. As the Council did not complete a Checklist, there is no paper trail and nothing for the family to appeal. Mr C says the last period of their mother’s life was more uncomfortable than it should have been because the Council forced her to move from a nursing home. Mr C wants the Council to pay £9000 which was the cost of Mrs D’s care.

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What I have investigated

5. I have investigated Mr C’s concerns about the actions of the Council. The end of this statement explains why I have not investigated the rest of the complaint.

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The Ombudsman’s role and powers

6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
8. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

9. I considered:
• Information provided by Mr C and the Council.
• The Care Act 2014 and associated statutory guidance.
• The National framework for NHS Continuing Healthcare and NHS-funded Nursing Care issued by the Department of Health & Social Care.
• The Council’s policy ‘HCS 861’ regarding Continuing Healthcare.
• Responses from the Council and Mr C to previous drafts of this statement.

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What I found

10. The Council was providing Mr C’s mother (Mrs D) with care at home; Mrs D’s partner (Mr E) was her main carer.
11. Mr E was finding it difficult looking after Mrs D due to her decreased health. The family placed Mrs D in a nursing home temporarily to decide what should happen for Mrs D’s long-term care. The family arranged this without any help from the Council. Mrs D’s daughter, Mrs F, contacted the Council asking to talk to someone about Continuing Healthcare funding (CHC) as Mrs D’s health had gone downhill. CHC funding is free social care arranged and funded solely by the NHS for some people with long-term complex health needs. The Council said it would do an assessment for Mrs D’s long-term care planning and would complete a Decision Support Tool. The Council’s role on CHC funding is to complete a Checklist to decide whether a full NHS assessment is needed. The NHS assessment is the Decision Support Tool. The Council’s reference to a Decision Support Tool is an error, and the Council should have said it would complete a Checklist.
12. Councils which are social care authorities have a duty to co-operate with relevant partners, including the NHS, in meeting their responsibilities both generally and in specific cases. That may include seeking NHS involvement if they consider a person may be eligible for NHS continuing care. A family member or care provider may refer a person to the NHS for continuing care assessment if the council does not. It is the responsibility of the relevant NHS body, not the council, to assess the person’s needs and decide whether they are eligible for continuing care.
13. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
14. Where someone is already receiving services from the Council, such as Mrs D, a change in circumstance will trigger an unplanned review to decide whether the existing support plan needs revising. If revision is necessary, the Council should consider a full reassessment and support planning. The care support and statutory guidance says “when revising the plan the local authority must involve the person, their carer and any other persons the adult may want involved, and their advocate where the person qualifies for one. The local authority must take all reasonable steps to agree the revision. The revision should wherever possible follow the process used in the assessment and care planning stages. Indeed, the local authority must if satisfied that the circumstances have changed in a way that affects a care and support or support plan, carry out a needs or carer’s assessment and financial assessment, and then revise the plan and personal budget accordingly. The assessment process following a review should not start from the beginning of the process but pick up from what is already known about the person and should be proportionate.”
15. The Council completed a Care Act review with Mrs D, Mrs G (Mrs D’s other daughter), and the manager of the nursing home where Mrs D was staying. The Council decided Mrs D’s care needs could no longer be met at home; she needed 24-hour care in a residential care home specialising in dementia care. The records show the nursing home manager agreed Mrs D did not have nursing needs; the family dispute this.
16. Because the review triggered a change to Mrs D’s care plan, the Council should then complete a full reassessment of needs and finances. The Council should then revise the support plan and personal budget accordingly. The Council did not do this.
17. During the care review the Council considered the CHC Checklist; its record states “[Mrs D] does not meet the criteria for Continuing Healthcare assessment and both [Mrs G] and [the nursing home manager] agreed with this after going through the checklist to see if she would trigger for a Decision Support Tool”. Mrs G disputes that she agreed this.
18. The family quickly moved Mrs D to a residential care home after the review, despite disagreeing with the Council’s view and feeling Mrs D needed nursing care. Mr C says they received no reason Mrs D failed the CHC assessment so had no recourse to challenge the decision for residential care and could not afford to keep paying for nursing care. If the Council had followed the proper process the family would have received a written outcome about the NHS Checklist and information on how to appeal to the Clinical Commissioning Group (CCG).
19. The family have since found out Mrs D appeared to have significant weight loss while at the nursing home and following her move. The Council does not mention weight loss in the care review. The Council has asked about food and fluid as there is reference to it in the review document. The Council recorded Mrs D’s weight as 60.4kg, which was the weight the nursing home had recorded almost two weeks before. On the day of the review the nursing home recorded Mrs D’s weight as 56.5kg. As there are no times stated I cannot know whether this weight was recorded later in the day, and therefore was not known about at the Council’s review. The Council should have done a full reassessment following the review, due to the revision in the care plan. Weight loss may have been considered in more detail when looking at nutrition management and the drop in weight would have been known about.
20. The NHS National Framework Guidelines say there are many situations where it is not necessary to complete a Checklist, but where someone requires a care home placement it expects a Checklist to be completed. The Council’s policy complies with this and says “unless it is clearly evident that the individual does not have a need for NHS Continuing Healthcare, health and social care staff should always use the Checklist to screen for consideration of NHS CHC whenever an individual is placed in a care home.” The Council failed to complete the Checklist in accordance with its policy.
21. The NHS guidelines say it is good practice to send the Checklist to the relevant CCG for information, even where a full assessment is not necessary. The Council’s policy says, “All completed Checklists whether going for a full CHC assessment or not MUST BE emailed to the continuing care department within the CCG in which the person’s GP is registered.” The Council failed to send the Checklist to the CCG as its policy.
22. The Council says once it sends the Checklist to the CCG it is the NHS’s responsibility to provide a written decision so the individual can understand the rationale for the decision and provide details on how to challenge it. A flowchart within the Council’s policy says, “Write to individual with outcome and copy of Checklist, if not eligible for full assessment advise they can ask CCG to reconsider Checklist or outcome.” The Council has taken the flowchart from the NHS guidelines. The Council’s policy is not clear that this part is down to the NHS and could be misconstrued that it is the Council’s responsibility.
23. Within a few weeks of moving to the residential care home Mrs D went to hospital and died. Mr C feels this might not have happened had the Council allowed Mrs D to stay at the nursing home. Mr C feels Mrs D would have been more comfortable in her last few weeks had she not had to move and had got CHC. The NHS has recently retrospectively awarded CHC to Mrs D; in the letter I have seen the NHS has not stated what period it will pay for.

Was there fault causing injustice?

24. The Council failed to manage expectations when the family first contacted it for a CHC assessment. The Council should have clarified its role in assessing social care needs and support planning, along with completing the CHC Checklist and the CHC process to consider health needs. It would have been good practice to explain the process or direct the family to some form of information source such as its website or provision of a leaflet.
25. Although the family asked for a CHC assessment, the Council would be at fault to not complete its own care review. The Council cannot only look at whether care should be funded by the NHS, it has a duty to assess care and support needs.
26. The Council acted correctly to complete its Care Act review by meeting with Mrs D, a member of her family, and the nursing home manager where she was living. Because the review changed how Mrs D’s needs would be met, the Council should then have completed a reassessment. This would have fully identified all Mrs D’s needs to properly assess how they would be met. I cannot say whether the Council still would have decided Mrs D’s needs could be met in residential care, or whether the outcome would have been different.
27. I cannot say if the Council had known about weight loss that it would have changed its decision about where Mrs D’s needs should be met. Weight management can be managed in residential care, for example by referral to a dietician or GP.
28. Because the Council did not complete a full reassessment, the family did not understand the rationale for residential care and did not know how to challenge the decision. The Council’s failure to complete a full assessment leaves the family with some uncertainty about whether the outcome might have been different if the Council knew the full extent of Mrs D’s decline in health. The full assessment would also have been another opportunity for the Council to consider the NHS Checklist, considering all relevant information. If the Council had given full information to the family, and followed the correct process, it’s possible the family might have decided to keep Mrs D at the nursing home until the Council’s full assessment. Mrs D might not have had to move.
29. Although the Council considered the Checklist at the review, it did not complete a Checklist document and failed to send a copy of the Checklist to the CCG. This is not in accordance with its policy and is fault. By not sending the Checklist to the CCG, it meant Mrs D and her family were not given a clear rationale for the decision, and information on how to appeal. Mr C has spent time researching the correct CHC process, and time and trouble complaining. We do not know what would have happened if the Council had followed the correct process. The family will never know whether Mrs D would have received an NHS support package in her lifetime to improve the quality of her life at the end.
30. Mr C says the Council’s actions meant his sister was spending time dealing with the financial side of paying for the residential care home, rather than spending quality time with her mother at the end of her life. How to fund Mrs D’s care until the CCG decided the CHC application would always have been an issue, even if the Council had done everything correctly.
31. Mr C says the Council bullied the family to move Mrs D from a nursing home on monetary grounds. Mr C says because of the Council’s actions the family were of the belief Mrs D had no nursing needs, they could not afford to keep her at the nursing home without CHC funding, so felt there was no option but to move her. I have found no evidence to support the Council bullied the family. As explained in paragraphs 28 and 29 Mrs D might not have had to move if the family had the full and correct information with which to make an informed decision. The NHS is refunding the family for the care fees Mrs D incurred when she should have had CHC funding.
32. The Council’s fault has caused uncertainty, distress, time and trouble.

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Agreed action

33. To recognise the impact on Mr C, the Council will:
1. Apologise for failing to complete an assessment after the review showed a revision was needed to Mrs D’s care and support plan. Apologise for failing to complete the NHS Continuing Healthcare Checklist document and failing to provide a copy to the NHS Clinical Commissioning Group.
2. Remind staff to follow the relevant procedure on Continuing Healthcare.
3. Remind staff to follow the Care Act 2014 and associated statutory guidance, when a review identifies a revision is needed to a person using services’ care and support plan.
4. Improve the wording of its ‘HCS 861 Continuing Healthcare’ document to make clear what are its responsibilities, and which are those of the NHS.
34. The Council should complete recommended actions a to c within one month of the Ombudsman’s final decision, and recommendation d within three months. The Council must provide evidence of its compliance.

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Final decision

35. I have completed my investigation on the basis the agreed action is enough to acknowledge the impact on Mr C.

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Parts of the complaint that I did not investigate

36. I have not investigated complaints about the actions of the care providers. At the time of the original complaint to the Ombudsman, Mr C had not exhausted the complaints procedures with the nursing home and residential home. He has now done so, and the Ombudsman is considering separate cases against those care providers.
37. Any complaint about the CCG should be directed to the Parliamentary and Health Service Ombudsman.

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Investigator's decision on behalf of the Ombudsman