Summary: There is no fault in the way the Council considered concerns raised about Mrs D’s care. However the Council was at fault for failing to complete a care review for Mrs D. The Council’s actions caused Mr C confusion and he lost trust in the Council’s accounting process. The Council has agreed to apologise to Mr C and is already in the process of examining procedures to ensure people using services receive a yearly review.

The complaint

1. The complainant who I refer to as Mr C, complains about services and charges for his late mother’s (Mrs D’s) care.
2. Mr C complains the Council failed to review Mrs D’s care properly which resulted in her not applying for Continuing Health Care (CHC) funding. As a result of these failures Mr C considers the Council has inappropriately charged for care. Mr C also complains the care provided to his late mother was inadequate and that a full charge is not warranted.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
6. 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

7. I read the information Mr C provided and made enquiries of the Council. I considered:-
• relevant statutory guidance, legislation and local policy, detailed below;
• Council records which included:-
1. financial assessments;
2. complaint correspondence;
3. safeguarding records;
• the Council’s response to my enquiries.
8. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background information

9. Mrs D lived independently in her own home. In 2017 following a hospital stay she entered a residential care home. The Council arranged the care at the residential care home and was responsible for payments to the care home.

What should have happened

Safeguarding

10. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)

Charging for permanent residential care

11. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
12. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
13. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.

Reviews

14. Chapter 13 Care and Support Statutory (CASS) guidance provides guidance on section 27 Care Act 2014. It says that councils should ensure it reviews all those it has provided with a support plan. The reviews should be kept under regular review. Paragraph 13.32 says councils should review at least every 12 months.

Continuing Healthcare Assessments

15. 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 a 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.
16. Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.

What happened

17. Mr C completed a financial assessment and the Council established that Mrs D’s savings exceeded the threshold for funding from the Council. Mrs D would therefore have to pay the full cost of the care home. It advised Mr C of this by letter in August 2017.
18. In April 2018 Mrs D fell and hurt her forehead. After making some enquiries the Council decided to take no further safeguarding action as the incident did not meet the threshold for abuse or neglect. It concluded the injury was an accident and the actions taken by the care home suitable. The care home did not however contact Mr C about the fall. It was only when Mr C visited and saw Mrs D’s bruise that he became aware that she had fallen. The Council recorded that Mr C was happy with the care home, but because of this omission its communication could be better.
19. Following an annual financial review in June 2018 the Council reassessed Mrs D’s charges, it reduced and backdated the charge to 2 October 2017. Mrs D was no longer a full cost payer. Shortly afterwards Mrs D’s husband passed away. The Council completed a further financial assessment and assessed Mrs D as a full cost payer. It backdated the charge to 1 July 2018. In March 2019 Mr C stopped paying contributions towards Mrs D’s care.
20. In June 2019 Mrs D had another fall. The Council took no action as the incident did not meet the threshold for abuse or neglect and the actions taken by the care home appropriate.
21. In 2019 and 2020 the Council sent yearly financial review letters which it says Mr C did not return.
22. In March 2020 Mr C complained to the Council about:-
• inadequate care including, poor personal hygiene, badly washed clothes and unclean hair. He raised concerns about a general deterioration in Mrs D’s health, dementia, and mobility.
• its failure to advise him of Mrs D’s entitlement to CHC funding; and the GP’s action in processing a CHC application;
• his lack of confidence in the Council’s assessment of charge. This followed an initial early error by the Council;
• the care home did not offer value for money, there were frequent requests for extra items such as for nail and hair care;
• he could not pay for the care.
23. The Council responded to Mr C’s complaints. It advised Mr C to contact the finance team so it could assess Mrs D’s finances and provide information about what other support the Council could give. It advised Mr C to report his concerns to the care home and exhaust its complaints process first.
24. The Council also explained concerns about CHC funding were the Clinical Commissioning Group’s (CCG’s) responsibility. The Council advised Mr C to contact either the GP who made the referral/application, or the CCG for further guidance.
25. In August 2020, the Council arranged a review of Mrs D’s care needs. It contacted the care home who explained that Mrs D’s health had deteriorated and she was receiving end of life care. The Council notes the care home had updated Mrs D’s risk assessments and care plans. The Council contacted Mr C at the time with no response. On a second call a couple of weeks later Mr C told the social worker his mother had died a few days earlier.
26. In September 2020 Mr C complained to the Council about:-
• its failure to invoice properly;
• its failure to apply for CHC funding;
• the poor care his mother received; and,
• the Council’s phone call shortly after his mother’s death about a review of her care needs.
27. The Council responded to the complaint. It said that Mrs D was a full cost payer and the Council’s responsibility was limited to arranging the placement at the care home and undertaking financial reviews. The Council says it responded to Mr C’s concerns about two safeguarding alerts but took no further action as the care home had acted appropriately. It also referred to Mr C’s comments in April 2018 where he said that although the care home could be better with communication, overall he was happy with the care Mrs D received. The Council said there was no reason to waive care fees and the account was now in substantial arrears. The Council offered to discuss matters with Mr C.
28. The Council provided clarification about a CHC application. It said neither the GP nor care home had asked the Council to get involved. It was aware the GP had taken some action about an assessment and advised Mr C to raise any concerns with the GP; or the CCG who is responsible for processing CHC applications and dealing with any complaints or requests for reviews.
29. The Council apologised for contact by the social worker after Mrs D had died.
30. In response to our enquires the Council accepts there was no review or involvement from the Council between January 2018 and August 2020. It says there was no need for any involvement at the time because:-
• its main role was monitoring the contractual arrangement between the care home and Mrs D as she was a full cost payer;
• the care home raised no concerns which would trigger a review;
• Mr C did not come back to the Council after it advised him to raise the concerns he had at the time with the care home;
• neither the GP, nor the care home made any contact about the need for a CHC referral.

Is there fault causing injustice?

Assessment of charge

31. The law allows councils to assess and charge for residential care. In this case there were several changes in financial circumstances which resulted in Mrs D’s charges swinging from a full cost payer to an assessed charge. This caused Mr C some confusion, especially when the Council reduced Mrs D’s charge and backdated it seven months.
32. The Council is not responsible for changes in financial circumstances, nor does it have the resources to provide more than yearly financial reviews. The Council’s standard letters, which it sent to Mr C, advise people to contact the Council to tell them of any change in circumstance. There is no evidence that Mr C contacted the Council when Mrs D’s savings changed either above or below the savings threshold. As a result the Council could not take earlier action to revise the financial assessments. I therefore find no fault in the way the Council assessed Mrs D’s assessed charges.
33. The Council sent Mr C assessment forms in 2019 and 2020 which he did not complete. It is likely that by this time Mrs D’s savings had fallen below the required threshold. However without the completed forms the Council could not and cannot complete a financial assessment. Mr C says he cannot afford the full cost care charges and that he stopped paying any assessed charge from March 2019. While I understand Mr C had lost faith in the Council’s accounting processes he did not provide an opportunity for the Council to amend the account.
34. It is unclear whether, or if, Mr C owes the Council any money. Mrs D may well have overpaid for care fees between October 2017 and June 2018. To move the situation forward I would suggest the Council provides an itemised statement which includes what Mrs D’s charges were in different periods, the amounts paid, and if relevant any monies that are owed. I would also suggest at the same time Mr C provides bank statements to show Mrs D’s savings throughout the disputed period.

Progression of NHS CHC funding

35. The Council has a role to complete a decision support tool if it considers a person may be eligible for CHC funding. As stated above it is not the decision maker. In this complaint the Council was not aware that Mrs D’s needs had deteriorated to an extent where CHC funding might be applicable.
36. Even if I found fault in the Council failing to complete the decision support tool I would be unable to say this caused Mrs D any injustice. This is because either:-
• Mrs D’s GP made a CHC application, in which case Mr C would have had an opportunity to ask for a review of the CCG’s decision; or,
• in the event no application has been made Mr C could have asked for a retrospective review of Mrs D’s eligibility for CHC funding.

Annual reviews

37. CASS says councils should review support plans at least once a year. There was a two year period when the Council did not carry out a care review. The Council argues that as Mrs D was a full cost payer its role was to oversee the contract monitoring. I do not agree. The Council commissioned Mrs D’s care and produced a support plan; I therefore consider it had a responsibility to review the support plan yearly. The failure to do so was fault.
38. Had the Council completed a review in 2019 and 2020 it would have offered Mr C an opportunity to consider care and financial issues. This would have reduced some of the concern and anxiety Mr C had at the time.

Inadequate care

39. Over the course of nearly four years Mr C raised concerns three times. The first two concerned one off, unwitnessed falls. On each occasion the Council followed safeguarding procedures. The Council did not progress safeguarding as the threshold for “abuse” had not been reached. Mr C raised no further concerns at the time. I therefore find no fault in the Council’s actions in the way that it dealt with these issues.
40. In March 2020 Mr C raised concerns about his mother’s care. The Council advised Mr C to raise the matter with the care home first and that if he continued to have problems to come to the Council. Mr C did not contact the Council again. Without any extra information it is difficult to conclude the Council should have taken any other action. It provided Mr C with advice and what to do if he continued to be unhappy.

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Agreed action

41. I have found fault causing injustice, I recommended and the Council agreed to take the following actions to remedy the complaint:-
1. apologise to Mr C for the lack of yearly reviews and the uncertainty this caused;
2. offer to meet/discuss the ongoing charging issues with Mr C;
3. review procedures so that all those who have care commissioned by the Council whether full cost payers or not, have yearly reviews. The Council says it is already in the process of completing this action.
42. The Council should complete (a) and (b) within a month of the final decision and (c) within three months of the final decision.

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Final decision

43. I have found fault in the actions of the Council. I consider the actions identified above are appropriate to remedy the complaint. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman