Summary: We have discontinued our investigation into Mr Y’s complaint because he has been aware of the Council’s intention to seek repayment of his mother’s care and support costs since 2019 and two years before he approached the Ombudsman. The matters complained about happened too long ago for us to investigate and there is no good reason for us to exercise our discretion.

The complaint

1. The complainant, whom I will call Mr Y, complains the Council completed a financial assessment for his mother, Mrs X, before completing the necessary care assessment and support plan.
2. Mr Y also complains the Council continues to pursue unpaid care charges and has issued over 40 invoices despite his ongoing appeal for NHS Continuing Healthcare (CHC).
3. As a result of the above, Mr Y says he has experienced unnecessary stress and pressure from the Council.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(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 discussed the complaint with Mr Y and considered any information he provided. I also made enquiries of the Council and considered its response.
8. I consulted the relevant law and guidance around care planning and charges, which I have cited where relevant in this statement.
9. I put my provisional findings in a draft decision statement and invited comments from Mr Y and the Council which I considered before making a final decision.

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What I found

What should happen

10. 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.
11. If the local authority considers the person has eligible needs, it must provide a care and support plan and conduct a financial assessment. The plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the local authority must involve any carer the adult has. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
12. The local authority may charge the adult when it arranges care and support. The Care Act and supporting statutory guidance is intended to make charging fairer and more clearly understood by everyone. The overarching principle is that people should only be required to pay what they can afford. People will be entitled to financial support based on a means-test and some will be entitled to free care.
13. Some adults may be entitled to care funded solely by the NHS. This is called NHS Continuing Healthcare (CHC) and its purpose is to meet physical or mental health needs that have arisen because of disability, accident, or illness. (NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012).
14. The Regulations say the NHS should assess for Continuing Healthcare where it appears somebody may be in need of such care. Complaints about CHC are dealt with by the Parliamentary and Health Service Ombudsman (PHSO).

What happened

15. Mrs X went to hospital on 3 December 2018. Her family made a referral to the Council seeking an assessment of her care and support needs prior to Mrs X’s discharge. The Council allocated the case to a social worker soon after and met with Mrs X and Mr Y on 19 December 2018. The social worker completed two assessments: one regarding Mrs X’s care and support needs and another to assess her mental capacity to make decisions about her care and support.
16. The care and support assessment, dated 21 December 2018, concluded that Mrs X had several eligible needs, and it was in her best interests to return home with a package of formal domiciliary care. The assessment document contains the following record, “[Mr Y] has enduring PoA [Power of Attorney] for property and affairs and this has been seen and scanned to LAS. [Mr Y] confirms [Mrs X] has over the threshold in savings and owns her own property, and he has been made aware she will need to fund the full cost of her package of care at home. Finance leaflet has been emailed to him for his information”
17. Before Mrs X’s discharge from hospital on 21 December 2018, the Council discussed the proposed package of care with Mr Y, “Tel call to [Mr Y] to advise of above - he advised he would rather have mum home with crisis care and no telecare than her go to a residential setting. We agreed [Mr Y] will come to the hospital in the morning and accompany mum home in the ambulance. I advised I will email [Mr Y] with contact details of all agencies involved and of my senior SW colleague [name removed] being available over the weekend if required. I will call [Mr Y] on 27/12 to see how things are progressing”
18. Mrs X’s package of care, which consisted of four calls per day with two care staff, started on 27 December 2018. In the meantime, Mrs X received care via a ‘crisis’ team and Mr Y confirmed his satisfaction regarding the arrangement, “[Mr Y] advised that mum has had a great night’s sleep and had not needed the overnight carers. She has also not needed the hoist and has been walking small distances. [Mr Y] is very happy with the carers. He will assess whether the hoist is still needed when the P.O.C [package of care] begins later this week”.
19. The Council contacted Mr Y on 18 January 2019 to arrange an assessment of Mrs X’s finances. The notes show that Mr Y agreed for a telephone assessment to take place on 22 January 2019. However, when the assessor called, Mr Y was not available and re-arranged the appointment for 8 February 2019.
20. The Council’s records show that it was unable to complete the assessment on 8 February 2019 and wrote to Mr Y on 13 February 2019 outlining its intention to charge Mrs X for the full cost of her care in the absence of any conflicting information. Mr Y later arranged for an assessment to take place on 21 March 2019. This concluded that Mrs X needed to pay the full cost of her care due to having savings and assets over the relevant threshold.
21. In the meantime, Mr Y continued to seek CHC funding. However, to date Mrs X has not received any funding from the NHS because, upon assessment, she was not deemed eligible. Mr Y continues to challenge this decision.
22. The Council confirms it has issued 16 invoices for care charges following the financial assessment it completed in March 2019. Mr Y has opted not to pay the invoices as he continues to seek CHC funding. Consequently, the Council’s system has generated a first reminder letter after 21 days of each unpaid invoice, and a second reminder letter 14 days thereafter. In total, the Council has issued 48 reminder letters to Mr Y.

Our analysis

Assessment of finances before the care assessment and support plan

23. Mr Y says the Council has not acted in accordance with the Care Act because it decided that Mrs X was obliged to pay the full cost of her care before the Council had completed the care assessment and support plan.
24. The contemporaneous records show the Council completed Mrs X’s care assessment on 19 December 2018 and issued a support plan on 21 December 2018 and before her discharge from hospital. The financial assessment followed in March 2019. Prior to this, Mr Y had been informed that Mrs X would likely need to pay the full cost of her care because she had savings over the threshold.
25. It is my view that Mr Y was informed of the likely need to pay for care in December 2018 and this was later confirmed in March 2019. The Council’s initial advice about funding was provided to Mr Y almost three years ago. I see no good reason why Mr Y was unable to pursue a complaint sooner if he disagreed with the outcome of the Council’s financial assessment. I have not investigated this point further as per Section 26(B) of the Local Government Act 1974.
26. In any event, it is unlikely the Ombudsman would find fault on this part of Mr Y’s complaint because the records show the Council followed the correct process in assessing Mrs X’s care and support needs before deciding how much she needed to contribute to the cost of her care.

Pursuit of care charges pending CHC appeal

27. The Council told Mr Y of the likely need to pay care charges in December 2018. The Council issued its first invoice in March 2019 and reminder letters were generated by the Council thereafter.
28. Mr Y was aware of the Council’s intention to seek contributions from Mrs X as early as March 2019. However, he did not formally complain to the Council until February 2021. His complaint to the Ombudsman followed in March 2021.
29. Mr Y had been aware of the Council’s decision to recover charges two years before he complained to the Ombudsman. The records demonstrate that Mr Y has been able to challenge the Council’s decisions during that period and he has also pursued appeals for CHC funding which continue to this date. I see no reason why Mr Y was not able to complain about the Council’s invoices sooner, and I have not investigated this point further as per Section 26(B) of the Local Government Act 1974.

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Final decision

30. We have discontinued our investigation and issued a final decision for the reasons explained in this statement.

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Investigator's decision on behalf of the Ombudsman