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Hertfordshire County Council (19 011 176)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 09 Dec 2020

The Ombudsman's final decision:

Summary: The Council was at fault for failing to properly consider and communicate with Mrs C the decision not to fund a care home. I cannot say now whether, but for the faults identified the outcome would have been different. However the Council’s actions have caused Mrs C uncertainty and frustration. The Council has agreed to remind/train staff to improve future practice and to make Mrs C a payment of £200 to acknowledge the uncertainty and anxiety its actions have caused.

The complaint

  1. For the purposes of anonymity I refer to the complainant as Mrs C and her late mother as Mrs D.
  2. Mrs C complains the Council:-
      1. failed to properly and in a timely manner assess Mrs D’s care needs and finances while she was in hospital;
      2. failed to give Mrs D’s family relevant information and advice about her care and financial assessments;
      3. delayed in considering the complaint.
  3. Mrs C says the Council’s actions delayed her mother from leaving hospital and returning to a respite care home where she had hoped to stay. Mrs C says the family could not make informed decisions about Mrs D’s care and accommodation because the Council did not tell them how her finances and assets would affect the level of support available to her. Mrs C says that if the Council had completed assessments promptly, Mrs D may have lived longer.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
  2. 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)
  3. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
  • their personal representative (if they have one), or
  • someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)

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How I considered this complaint

  1. I considered written information from Mrs C and verbal information she provided to a colleague. I made enquiries of the Council which included asking questions and for documentary evidence. I also considered:-
    • Case recording, care assessments and support plans;
    • Council’s complaint policy “ASC Have your say”;
    • Care Act 2014 and Care and Support Statutory guidance (CASS);
    • The (Choice of Accommodation) Regulations 2014 (SI 2014/2670);
    • Care and Support (Charging and Assessment of Resources) Regulations 2014
  2. Mrs C and the Council had an opportunity to comment on my draft decision. I considered any comments made before reaching a final decision.

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What I found

What should have happened

  1. The rules say that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees.
  2. The (Choice of Accommodation) Regulations 2014 (SI 2014/2670) sets out what people should expect from a council when it arranges a care home place for them. It says once a needs assessment has determined what type of accommodation will best suit the person’s needs, and a personal budget which is sufficient to pay the cost of that accommodation; the person will have a right to choose the particular provider or location, subject to certain conditions.
  3. If a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:
    • The person can find someone else (a ‘third party’) to pay the top up - the difference between the personal budget and the cost of a home.
    • The resident has entered a deferred payment scheme with the council and is willing to pay the top up fee themself.
  4. In such circumstances, the council needs to ensure the person paying the ‘top-up’ enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.
  5. The Council’s complaints procedure “ASC Have your say” says it will acknowledge a complaint within three working days. The next stage is “Local Resolution” where a Team Manager will investigate and respond within 10 to 25 working days and no later than 65 working days.

What happened

  1. Mrs D lived in the community. She went into hospital after a fall. Due to her general frailty the Council assessed Mrs D as needing two weeks of support in a care home so it could assess her long term care needs.
  2. Mrs D chose a care home, which for confidentiality I will call, X. X did not have a contract with the Council and charged more than the Council would usually pay. However as it was Mrs D’s preferred option it agreed to contract with the home if Mrs C paid the top up which was over £500 per week.
  3. Before the care ended Mrs C contacted the Council to discuss further support. Mrs C says the Council agreed to fund a further two weeks of care. Mrs D returned to hospital shortly afterward. Mrs C wanted Mrs D to return to X on discharge from hospital. X was happy to hold Mrs D’s place. On 7 February 2020 X contacted the Council to ask about discharge plans for Mrs D.
  4. On the same day, a Council officer met with Mrs C. At this point the Council was aware Mrs D owned a property abroad. It decided that because Mrs D had equity over the upper financial limit for Council involvement Mrs D would have to pay the full cost of her care. Later that day the Council told X it would not pay for extra respite as Mrs D was a full cost payer and the family would need to make a private arrangement.
  5. The next day the team manager told Mrs C, Mrs D needed a reassessment to see whether she could live with support in the community. Mrs C explained she was concerned her mother’s health had declined in hospital and she wanted her to return to X as soon as possible.
  6. In response to Mrs C’s complaint the Council said Mrs D’s reassessment was to find out whether her needs had deteriorated to an extent where she needed nursing care. It accepts officers did not properly explain this to Mrs C and that she would have felt as if Mrs D’s eligibility for long-term care was in question.
  7. The Council sent a “funding pack” on 13 February and a letter on 14 February. This letter explained top-ups. The next day an officer records asking a manager whether a third-party top up would be appropriate in this case. The manager consulted two senior managers and recorded this was inappropriate because:-
    • the risk of the Council becoming fully responsible for the placement were too high and there was no letter of undertaking for the sale of the property abroad;
    • Mrs D had only stayed at X for two weeks so there was little impact on her well-being moving to an alternative care home if it met her needs;
    • X did not accept Council rates and the third-party top up was high.
  8. The Council acknowledges and accepts it could have communicated its decision better. It has apologised for this and taken some action with the officers concerned to improve future practice.
  9. The records show that the Council told Mrs C about an alternative vacancy on 22 February and was actively looking for vacancies. The Council received an assessment notification and discharge date for 25 February from the hospital. This put the Council on notice that Mrs D was ready for discharge and needed to have an assessment. On 26 February it identified a care home which would accept the Council rates in the short term until Mrs D had liquidated her assets and was able to fund her placement independently. Mrs D moved into a new home on 1 March. She died on 8 March.
  10. Mrs C says the reassessment was unnecessary as one had already been completed, and that it delayed her mother’s discharge from hospital. Mrs C considers her mother would have lived longer and had a better quality of life had the Council arranged care for her discharge earlier, at X.
  11. Mrs C also says the Council failed to follow its complaints procedure. The Council accepts it initially delayed in investigating Mrs C’s complaint. At the time it acknowledged its error and apologised to Mrs C. The Council met with Mrs C on 25 March and wrote a response to the complaint on 7 May updating Mrs C in the interim. Mrs C says she did not receive minutes of the meeting.

Was there fault causing injustice?

Delay in assessment and discharge

  1. There is no independent record about whether the Council assessed Mrs D for long term care before her hospital admission. Even if this had occurred the Council was entitled to reassess Mrs D as it had to consider whether there was a change in her needs following her hospital admission. I therefore do not find fault with the Council reassessing Mrs D’s needs.
  2. The Council accepts it failed to communicate its decision making properly with Mrs C and has apologised for this. The failure to do so caused Mrs C frustration and anxiety.
  3. I cannot say the Council delayed in discharging Mrs D. While there was some initial confusion about the property abroad the Council made reasonable enquiries and sought a resolution. Once the Council had assessed Mrs D as needing long term residential care it made a concerted effort to find a suitable care home. Within a matter of days it found a care home which could meet Mrs D’s needs and would contract within the Council’s rates.

Long term placement at X

  1. The Care Act and CASS allow individuals to choose care homes that cost more than a council would pay to meet that individual’s needs. However this is conditional. In this complaint there is no question X could meet Mrs D’s needs. The Council had to decide whether it could contract with X, and if the substantial third-party top up was sustainable. If the third-party top up went unpaid there was a risk Mrs D would have to move care home. Or the Council would have to pay a large added cost which it would not ordinarily have done.
  2. The Council has already accepted it could have communicated its decision to refuse funding X with Mrs C better. However I also consider it was at fault for failing to properly consider whether the top up was a long term viable option for Mrs C. There is no record of discussions with Mrs C about her financial circumstances or potentially others within the family. Indeed an officer told X Mrs D would not be returning prior to any discussion with Mrs C.
  3. I do not know now if the Council had acted without fault it would have reached the same conclusion. Mrs C will however have the uncertainty and frustration associated with the Council’s failure at the time.

Delay in dealing with the complaint

  1. The Council has apologised for an initial delay of a month in acknowledging a complaint. Unfortunately by the time the Council investigated the complaint Mrs D had died.
  2. Mrs C feels that if the Council had acted sooner in dealing with the complaint it may have resolved issues and Mrs D would have been able to move into X. For the reasons set out above I cannot say what decision the Council would have reached if it had acted properly. It is however likely that Mrs C would have received a clearer explanation about how the Council had reached its decision earlier and reduced her concern and frustration.

Agreed action

  1. The Council met with Mrs C and addressed her complaint. Its written response to Mrs C acknowledged errors and apologised for the lack of communication. This approach is welcomed by the Ombudsman. While it is unclear whether the decision made about X would have been different if the Council had acted without fault; the poor communication deeply affected Mrs C.
  2. As a result the Council has agreed to take the following additional actions:-
      1. apologise to Mrs C for the failure to properly consider/record whether a third party top up was sustainable;
      2. make Mrs C a payment of £200 to reflect the uncertainty and anxiety caused by the Council’s actions;
      3. review the complaints process to provide a check to ensure complaints are not missed;
      4. remind staff about the Choice of Accommodation regulations, the process officers should follow, and the importance of recording how officers have reached decisions;
      5. remind staff about communicating, where possible in writing, reasons for decisions.
  3. The Council should complete actions (a) and (b) within one month of the final decision and (c) to (e) within three months of the final decision.

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Final decision

  1. I have found fault causing injustice. I have now completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman

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