Summary: Ms B complained the Council wrongly charged adult social care fees from her late father’s estate. Ms B thinks the costs should have been covered by ‘discharge to assess’ funding because suitable care assessments had not been carried out. We found no fault by the Council in this matter.

The complaint

1. The complainant, who I shall call Ms B, complained the Council has wrongly charged adult social care fees from her later father’s (Mr Y) estate. Ms B thinks the costs should have been covered by ‘discharge to assess’ funding because suitable care assessments had not been carried out.
2. Ms B also complained about the quality of the care received by her late father.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. If we are satisfied with an organisation’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)

Back to top

What I have and have not investigated

6. I have investigated Ms B’s concerns the Council are wrongly charging adult social care fees from her late father’s estate.
7. I have not investigated Ms B’s concerns about the quality of care received by her late father. Ms B raised concerns about Mr Y’s care with the Council in 2020 and 2021 but did not approach us until February 2023. This is more than two years after Ms B became aware about concerns about his care. The law says we would expect complaints to be made within 12 months of complainant’s becoming aware of a matter. We can exercise discretion to disapply this restriction however I am not aware of grounds to exercise discretion and investigate this matter now.

How I considered this complaint

8. I considered Ms B’s complaint and all the information she provided. I considered the Council’s response to my enquiries and the relevant documents it provided.
9. I set out my initial thoughts on the complaint in a draft decision statement and I considered Ms B’s comments in response.

Back to top

What I found

10. The Government guidance relevant to hospital discharges in England during the period of this complaint is “COVID-19 Hospital Discharge Service Requirements”, which was published on 19 March 2020 and withdrawn on 25 August 2020. It said patients had to be discharged from hospital as soon as it was clinically safe to do so. It covered the cost of restarting care packages that were in place before the person was admitted to hospital.
11. The guidance also:
• said the NHS will fully fund the cost of new or extended social care support for a limited time to relieve the pressure on hospitals;
• introduced a “discharge to assess” (DTA) model consisting of four “pathways” (0-3). Pathway 2 was for people who could be discharged into rehabilitation in a bedded setting.
12. On 21 August 2020 the government issued revised guidance on hospital discharge. For people who were discharged from hospital between 19 March 2020 and 31 August 2020 with a care package, it said health, care or financial assessments for longer-term care needs should be carried out as soon as practicable. The cost of care for those awaiting an assessment would be met meanwhile from a ringfenced fund.
13. Reablement support services are for people after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help someone preserve or regain the ability to live independently. Regulations say local authorities must not charge for the first six weeks of intermediate care or reablement services. They may charge where services are provided beyond the first six weeks, but should consider continuing providing them without charge because of the preventative benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)
14. The Care Act 2014 requires councils to complete an assessment for any adult who appears to need care and support, regardless of whether or not it thinks the individual has eligible needs or their financial situation.
15. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
16. Councils must assess a person’s finances to decide what contribution they should make to the costs of their care. The Council can take a person’s capital and savings into account subject to certain conditions. A person with capital or savings over £23,250 is not entitled to any financial assistance with the costs of care.
17. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning. It should confirm the final amount of the personal budget through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be enough to meet the person’s care and support needs.
18. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
19. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
20. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
21. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.

What happened

22. In late 2019 Mr Y was admitted to hospital.
23. In early spring 2020 Mr Y moved to a rehabilitation unit. The unit provides rehabilitation for people who cannot safely return directly home from hospital. There was no charge for Mr Y’s care at the unit as it was a pathway 2 setting under the DTA policy.
24. Following the move Mr Y began to experience a medical condition that made it difficult for him to undertake therapy and he often refused to engage with staff.
25. The Occupational Therapist working with Mr Y completed a mental capacity assessment for him. It found Mr Y lacked capacity around his care and support needs. Ms B agreed with the assessment.
26. The Council completed an assessment of Mr Y’s needs. It said:

• It was not possible to visit Mr Y because of COVID-19 restrictions. Information for the assessment was gathered from staff working with Mr Y and from Ms B.
• Mr Y’s mobility was significantly reduced and he needs help from two people for transfers and is at a significant risk of falls. He needs help with personal care and continence.
• Therapy staff at the rehabilitation unit assessed Mr Y. They said his medical condition mean he is not benefitting from rehabilitation. He cannot engage with staff to undertake therapy and refuses interaction.
• Despite some improvement in Mr Y’s mobility he was not engaging enough to warrant remaining in the rehabilitation unit.
• It proposed Mr Y move to a nursing home to recuperate further. This is a best interest decision as Mr Y lacks capacity.

27. As part of the assessment Mr Y received an indicative personal budget of £1009.80 per week for his care.
28. Entries in Mr Y’s care records show Ms B was aware that a financial assessment was required to establish the contribution Mr Y would need to pay towards his care costs once he moved to a nursing home. The entries are prior to Mr Y leaving the unit.
29. In early summer 2020 Mr Y moved to a nursing home.
30. The Council assessed Mr Y’s needs again in early autumn 2020. The assessment said:

• There was significant improvement in Mr Y’s mobility. However, he was still at risk from falls.
• Mr Y’s medical condition has subsided. He explained what his wishes for the future were. He said he wanted to be near his children so he could see them once COVID-19 restrictions ended. He wanted to live in his own space and have more independence.
• It was not clear if Mr Y would manage if he returned home or if other accommodation such as Extra Care Housing would better meet his needs.
• Following discussion with Mr Y and Ms B it was consider the fitting next steps would be for Mr Y to move to a placement in a residential home nearer his children. This would allow further time to assess the possibility of him returning home.
• Mr Y does not have savings over the threshold and will have a financial assessment to decide his contribution to his care costs.

31. As part of the assessment Mr Y received an indicative personal budget of £795.00 per week for his care costs.
32. Following the assessment Mr Y moved to a residential home.
33. Care records show that Ms B was aware Mr Y would need to complete a financial assessment to decide his contribution to the cost of his care. The Council sent Ms B a financial assessment form to complete. The care records show the Council offered Ms B help in completing the financial assessment.
34. Mr Y’s mobility improved and in late 2020 plans for him to return home began.
35. In early 2021 Mr Y died at the residential home.
36. In spring 2021 the Council wrote to Ms B saying it would be charging her late father the full cost of his care since leaving the rehabilitation unit. It said it was treating him as a self-funder because a financial assessment was not completed. It offered Ms B the opportunity to provide the financial information it needed.
37. A completed financial assessment was not returned and so, in summer 2021 the Council issued an invoice for £32,148.68 for the cost of Mr Y’s care since leaving the rehabilitation unit.
38. Also, in summer 2021 the Council contacted Mr Y’s relative to see if he could help it complete a financial assessment for Mr Y.
39. In autumn 2021 the Council sent a reminder invoice for Mr Y’s care costs and wrote to his brother asking him to complete a financial assessment for Mr Y.
40. In late 2021 a probate application for Mr Y’s estate was submitted.
41. In early 2022 Ms B’s solicitor made a complaint to the Council. It said that under the DTA policy a patient’s care costs should be paid for up to six weeks pending a social care or NHS Continuing Health Care assessment and a decision about ongoing care and support. If assessments are not completed by the end of six weeks then care funding will continue until care planning is completed. Ms B’s solicitor said the Council was not commissioned to provide a short break for Mr Y and he was discharged from hospital to assess his ongoing care and support needs. Therefore, Mr Y’s care fees following discharge from hospital should be met by DTA funding.
42. The Council replied. It said Mr Y was placed in a DTA Pathway 2 setting following his discharge from hospital. Mr Y received funding for this placement for more than six weeks.
43. In early spring 2022 Ms B’s solicitor submitted a Subject Access Request (SAR) to get documents to support her complaint. The Council said a letter of administration would be required before it could process the SAR.
44. In early 2023 probate was granted. Ms B’s solicitor provided this to the Council in and it completed the SAR request in spring 2023.
45. Unhappy with the Council’s response to her complaint Ms B approached the Ombudsman. She complained about the Council’s decision to charge her late father’s estate for his care costs after leaving the rehabilitation unit.
46. In response to our enquiries into this matter the Council said:

• Mr Y received DTA funding for his stay at the rehabilitation unit. It completed care assessments before he left the unit and so funding for his subsequent care could not be funded under the DTA policy.
• It could not complete a financial assessment for Mr Y because it did not receive the information it asked for and so, it had to consider Mr Y as a self-funder. Therefore, Mr Y’s personal budget was not established.
• If Ms B provides the information needed to complete a financial assessment for Mr Y it is willing to retrospectively review the contribution for Mr Y’s care costs.

Finding

47. The Ombudsman generally expects complainants to approach him within 12 months of becoming aware of the relevant issue. We will not normally accept a complaint where a person has waited for longer than this without good reason.
48. However, we have decided to exercise discretion and investigate Ms B’s complaint about the Council charging Mr Y for his care costs after leaving the rehabilitation unit. This is because she complained to the Council and was then seeking additional information from the Council in respect of her complaint.
49. It is argued that Mr Y’s placements at a nursing home and residential home should have been funded under the DTA policy. I do not agree. Mr Y was discharged from hospital into a bedded rehabilitation setting, a pathway 2 setting under the DTA policy. He remained there, with the cost covered by the DTA policy until assessments about his longer-term care needs were completed in summer 2020.
50. I note a mental capacity assessment for Mr Y found he did not have capacity to make decisions about his care. In the absence of a person with lasting power of attorney for health and welfare the Council made a best interests’ decision. This is documented in the assessment of his needs.
51. The Council assessed Mr Y’s needs in summer 2020 and autumn 2020, when his needs were reviewed. The assessments show that all the professionals involved in his care were consulted as well as Ms B. I do not consider there was fault with the assessment process.
52. Care records show that Ms B was aware Mr Y would need to complete a financial assessment to decide what contribution he should make towards the cost of his care after leaving the rehabilitation unit. While the Council has not provided copies of letters explaining the changes to his funding it is clear from these records that Ms B was aware that Mr Y would need to contribute to his care costs.
53. The Council did not complete a financial assessment for Mr Y and so it did not establish a personal budget for him. However, I do not consider this is fault by the Council. Evidence provided shows the Council sought information to complete a financial assessment from Ms B, but its efforts were unsuccessful. I also note it offered Ms B help with completing the assessment.
54. In the absence of information needed to decide a financial assessment the Council must treat Mr Y as a self-funder. The Council has said it will complete a financial assessment and reconsider Mr Y’s contribution to his care costs should Ms B provide the necessary information.

Back to top

Final decision

55. I have completed my investigation and do not uphold the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman