Summary: There was fault as the Council did not invite Ms B to its Care Act assessment of her relative, Mr C. The Council continued to pay Mr C’s care home fees for several months, even though Mr C was a self-funder. This meant that Ms B then received a large invoice which had to be paid immediately. The Council has agreed to apologise and make a small payment to Ms B to reflect the distress caused by the fault.

The complaint

1. Ms B complains on behalf of her relative, Mr C, who has died. Mr C was living at Brook View Nursing Home in Ferndown. Ms B says the Council:
• Failed to carry out an assessment of Mr C’s needs under the Care Act.
• Did not carry out an appropriate financial assessment of Mr C.
• Did not inform her that Mr C became a self-funder until she received a large invoice.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)

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How I considered this complaint

4. I have discussed the complaint with Ms B and I have considered the information that she and the Council have sent and the relevant law, guidance and policies. I have offered both sides an opportunity to comment on the draft decision.

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What I found

Law, guidance and policies

Care Act 2014

5. The Care Act 2014, the Care and Support Statutory Guidance 2014 (CASS Guidance) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge. The Council also has its own policies.

Assessment

6. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan.
7. The threshold for eligibility is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. Council must consider whether:
• The adult’s needs arise from a physical or mental impairment or illness.
• As a result of the adult’s needs the adult is unable to achieve 2 or more of the specified outcomes.
• As a consequence of being unable to achieve these outcomes there is a significant impact on the adult’s wellbeing.
8. The outcomes are:
• Managing and maintaining nutrition
• Maintaining personal hygiene
• Managing toilet needs
• Being appropriately clothed
• Being able to make use of the home safely
• Maintaining a habitable home environment
• Developing and maintaining family or other personal relationships
• Accessing and engaging in work, training, education or
• Making use of necessary facilities or services in the local community
• Carrying out caring responsibilities for a child.

Finances

9. There is a difference in the charging rules for residential care and for non-residential services.

Non-residential services

10. Councils have discretion to choose whether or not to charge for non-residential services. Where a council decides to charge it must do so in line with the regulations and CASS Guidance.
11. Where the council has decided to charge, it must carry out a financial assessment of what a person can afford to pay. 

Residential care

12. If a person needs residential care and has capital over the limit of £23,250, the Council is precluded from paying towards the cost of care and the person will have to pay for their own care.
13. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.

NHS funded care

14. NHS-funded Nursing Care is the funding provided by the NHS to care homes with nursing, to support the provision of nursing care by a registered nurse for those assessed as eligible for NHS-funded Nursing Care.
15. NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’.
16. There is an appeal process if a person is not satisfied with the eligibility decision for CHC. The third stage of the appeal process is to refer the case to the Parliamentary and Health Service Ombudsman. The Local Government and Social Care Ombudsman (LGSCO) does not investigate these complaints as we do not investigate complaints about the NHS.

What happened

17. Mr C was an older man who required care and support. He had the mental capacity to make decisions about his health and care. Ms B has not said what capital Mr C owned but it is my understanding that he had capital (outside of property) which was over £23,250.
18. I have summarised what happened insofar as it was relevant to the complaints that Ms B has made.
19. Mr C had been living at home with a support package but was admitted to hospital in December 2021. Mr C was ready for discharge from hospital in January 2022, and a multi-disciplinary meeting was held to discuss the discharge plan. Mr C agreed to move to a care home (the Home). Mr C was a self-funder as he had capital over the £23,250 threshold. However, his discharge happened during the COVID-19 epidemic. The NHS funded discharges to care homes at that time, even if a person was not eligible for Council funding under the Care Act.
20. The Council has confirmed that Mr C was discharged under ‘NHS England COVID-19 hospital discharge arrangements’ so the discharge was not funded by the Council.
21. The hospital social worker sent an email to Ms B on 24 January 2022 and said:
• Mr C had been assessed by the Home and they had confirmed they could meet his needs.
• Mr C’s case would be discharged under NHS COVID-19 funding for up to four weeks.
• A social worker would be allocated to carry out an assessment of Mr C’s needs as soon as possible to determine his long-term needs.
• If Mr C had capital over £23,250 then he would have to self-fund his care package. If he had capital under £23,250 , he would need a financial assessment to establish what his contribution to the cost of the care package would be.
• The social worker would contact Ms B when the assessment was booked.
22. Mr C was discharged to the Home on 28 January 2022.
23. Ms B called the hospital social worker on 31 January 2022 as she was worried about the COVID-19 funding end date and wanted to know whether a social worker had been allocated. She was informed that Mr C would not be charged until the assessment was completed.
24. There was a delay in the following months and Mr C’s initial social worker left and a new social worker was allocated. The social worker booked a virtual meeting to assess Mr C on 24 June 2022.
25. The assessment was completed on 24 June 2022.The social worker considered each of the Care Act outcomes and Mr C’s needs and noted that he required 24/7 care in a nursing home. The social worker noted:
• Mr C required full assistance in eating and drinking. He had maintained his weight since admission to the Home.
• He was doubly incontinent and required two staff to maintain his continence care routine.
• He was unable to meet his needs for personal care and needed two staff to assist.
• He was unable to dress himself and needed full assistance in this.
• He was at high risk of pressure ulcers which needed ongoing management.
• He needed a hoist and two staff for all transfers.
• Mr C was able to engage in meaningful conversation for the duration of the assessment. He displayed good attention and concentration abilities.
• Mr C had the mental capacity to make decisions about his care. There were no deprivation of liberty safeguards in place. Ms B assisted him with complex decision making with Mr C’s involvement.
• Mr C’s finances were managed by Ms B. Previously they were managed by another member of his family who had repeatedly reported that Mr C had capital over £23,250. The assessment noted that financial assessment paperwork would be sent to Ms B to determine funding status.
• The assessment also said on the final page that financial leaflets would be sent to Mr C’s daughter. (Mr C does not have a daughter).
26. The social worker spoke to Ms B on 30 June 2022 and made a note of the conversation. The note said:
• ‘[Ms B] has advised that [Mr C] has savings above the LA threshold. I have advised [Ms B] that [Mr C] will be a self-funder commencing 24 June 2022.’
27. There was a further note on 7 July 2022 that Ms B had been advised on 30 June that Mr C was a self-funder as he had savings over the threshold. The note added: ‘the financial assessment cancelled and case archived’.
28. Ms B rang the social worker on 7 July 2022 as she wanted the social worker to send her a copy of the Care Act assessment. The Care Act assessment was sent to Ms B on 11 July 2022.
29. It is our understanding that the Council continued to pay the Home until 28 August 2022 and then sent the invoice for the charges to Ms B in October 2022.
30. Ms B contacted the Council on 27 October 2022 as she had received the Council’s invoice for Mr C’s care from 25 June 2022 until 15 October 2022 and the Home’s invoice from 29 August 2022 until 20 November 2022.
31. Ms B said she was unhappy about the whole process which started with the Care Act assessment which was inaccurate to the point that it referred to Mr C’s daughter.
32. The Council’s finance officer checked the invoices and said they were correct. The Council’s invoice was dated 15 October 2022, but it only covered the time between 25 June 2022 until 28 August 2022 when the Council stopped funding the Home. The Home’s invoice related to the time from that date, 29 August 2022. The Council said that any concerns about the invoice from 29 August 2022 would have to be directed to the Home, not the Council.
33. Ms B sent an email to the Council on 2 November 2022 and said:
• She had never been informed that Mr C was a self-funder.
• She had received an invoice from 24 June 2022 to 13 October 2022.
• Section 17 of the Care Act said the Council should have carried out a financial assessment and provided her with a record of this assessment, but she had not received this.
• The Council had not followed the correct process under the Care Act and she therefore did not accept that Mr C was a self-funder.
34. Ms B sent an email to the Home on 8 November 2022 and said:
• The Council had not informed her that it would end Mr C’s funding and she was pursuing this with the Council.
• Until the Council had completed the correct process, she was not in a position to complete any paperwork or make any payments to the Home.
35. The Council responded to Ms B’s email on 22 November 2022 and said:
• The Council carried out a Care Act assessment of Mr C on 24 June 2022.
• At this time, the social worker spoke to Ms B. Ms B told the social worker that Mr C had capital above £23,250 and the social worker informed Ms B that Mr C would therefore be a self-funder from 24 June 2022.
• The Council did not inform the Home of this and continued to pay the Home until 28 August 2022 so this is why the Council then had to invoice Mr C to repay the fees from 25 June 2022 to 28 August 2022.
• The Council did not have to carry out a financial assessment of Mr C as he had capital above the £23,250 threshold.
• If Mr C’s capital was nearing the £23,250 threshold, the Council would be happy to carry out a financial assessment. The Council included the financial assessment declaration form with the letter.
36. The Home emailed Ms B on 7, 13 and 14 December 2022 and said:
• Mr C was a self-funder and therefore the Home’s invoice from 29 August to 18 December 2022 was overdue for payment.
• Failure to pay may result in the Home adding interest to the fees, legal action and may affect Mr C’s residency.
• If Ms B appealed the decision with the Council and if the appeal was successful, the Home would refund any overpaid moneys.
37. Ms B wrote to the Council on 15 December 2022 as she had been informed on 20 July 2022 that Mr C qualified for Funded Nursing Care (FNC). She said:
• She wanted the FNC to be deducted from the amount that Mr C owed to the Council and the Home.
38. Ms B instructed a solicitor and her solicitor emailed the Council on 24 January 2023 and said:
• It was unclear how the Care Act assessment was carried out as there was no record of the social worker visiting Mr C or of a virtual meeting on 24 June 2022.
• Ms B had not been present during the assessment. She should have been invited.
• Ms B spoke to the social worker on 30 June 2022 when the social worker asked her whether Mr C had capital over £23,250.
• The Council had not carried out a financial assessment of Mr C.
39. The Council did not reply to the solicitor’s letter. The Council chased Ms B for payment of its invoice in May 2023.
40. Ms B complained to the Council on 24 July 2023 and said:
• She had not been involved in the Care Act assessment of Mr C on 24 June 2022.
• The social worker did not visit Mr C at the Home when she carried out the assessment.
• Some of the assessment was copied from a previous assessment.
• The assessment referred to a daughter, when Mr C did not have a daughter.
• The assessment said the financial assessment paperwork would be sent to her but that did not happen.
• As the Council had not carried out an assessment as set out in the Care Act , it had not discharged its responsibility and Mr C had been ‘unlawfully charged.’
• The Council had also failed to comply with CHC legislation as a person should not be charged until a CHC assessment had taken place.
• Her solicitor had not received a reply to their letter from January 2023.
• She was ‘coerced’ by the Home to pay the fees with threats of legal action which put her under ‘enormous stress, anxiety and pressures which were very negative for my wellbeing and health.’
• Mr C could have moved to a cheaper care home and had been paying more that ‘he would have wanted to pay.’
41. The Council replied on 18 September 2022 and said the Council had explained its position in its letter on 22 November 2022 and the position was unchanged. It informed Ms B of her right to refer her complaint to the Ombudsman.

Further information

42. The Council has said the following in relation to the FNC payment in its reply to the Ombudsman:
• ‘FNC was awarded from 25 July 2022. We have in response to this requested Brook View credit Dorset Council for the period from 25 July 2022 – 28 August and will adjust the outstanding invoice with [Ms B] to reflect this.’

Analysis

Assessment

43. In terms of the needs assessment, I agree there was a delay in carrying out the assessment. The Council said it would carry out the assessment within four weeks, but did not do so until June 2022. So there was a delay, but Mr C did not suffer any injustice as a result of this. On the contrary, it meant that he continued to receive COVID-19 NHS funding for four months, which was not means-tested.
44. The social worker assessed Mr C’s needs for care and support on 24 June 2022. I agree that the social worker did not visit Mr C at the Home in person to carry out the assessment, but she assessed Mr C during a virtual meeting. I find no fault in that respect. There is no requirement for the assessment to be carried out in person and a virtual meeting would have been sufficient.
45. In terms of the assessment itself, I note the following, the social worker used the correct criteria from the Care Act 2014 to assess Mr C. She considered each outcome as set out in the Care Act and assessed whether Mr C was able to achieve the outcome or needed support to achieve the outcome. I find no fault in that respect. The assessment was clear that Mr C needed residential care on a permanent basis and that Mr C could not return home.
46. I agree that there was an error in the assessment insofar that the assessment referred to a daughter which Mr C did not have. Unfortunately, social workers often overwrite assessments which is one of the reasons why this type of errors sometimes occurs. I agree it was fault, but that did not invalidate the entire assessment or meant that the assessment did not take place.
47. However, I uphold the complaint that Ms B should have been invited to the assessment. Ms B had said that she wanted to be present and the Council knew that she supported Mr C in decision making. Therefore, it should have invited her and its failure to do so was fault.
48. I cannot say, for certain, what injustice Mr C suffered from the fact that Ms B was not present during the assessment. However, I note the following:
• Mr C had the mental capacity to make decisions about his care.
• There was no indication that Mr C disagreed with the outcome of the assessment.
• Mr C was satisfied with living at the Home and never indicated that he wanted to move from the Home.
• The social worker sent the assessment to Ms B on 7 July 2022. If Ms B had any concerns about the assessment or the choice of care home, she could have raised her concerns at this stage.

Finances

49. In terms of the finances, I find no fault in the Council’s decision not to complete a full financial assessment. The Council assessed Mr C’s finances insofar that it enquired about his capital. The Council correctly assessed that, as Mr C’s capital was over £23,250, Mr C was a self-funder. The Council informed Ms B of this decision on 30 June 2022 by telephone.
50. Of course, if Mr C’s capital was running out or was entirely tied up in a property, then a more detailed financial assessment could have been helpful. However, there is no indication that this was the case for Mr C. I note that the Council offered a financial assessment to Ms B on 22 November 2022 if Mr C’s capital was near the threshold and Ms B did not take up the offer.
51. There was fault in the Council’s actions following the decision that Mr C was a self-funder. The Council failed to inform the Home of this decision and continued to pay the Home until 28 August 2022. That was fault. The Council then stopped paying but still did not send the invoice to Ms B until October 2022. That was further fault. Clearly something went wrong in the Council’s internal and external communications but the Council should have stopped paying the Home on 25 June 2022 and should have sent the invoices to Ms B from that date.
52. In terms of injustice, I note that the Council informed Ms B verbally, on 30 June 2022 that Mr C had become a self-funder from 24 June 2022 onwards. I agree that the Council should have put this in writing, but Ms B was aware that Mr C had become a self-funder from 24 June 2022 so the injustice is limited.
53. I agree there was injustice in the fact that Ms B then had the stress of having to pay a large sum in one payment rather than paying it on a monthly basis. The Home threatened Ms B with legal action if she did not pay and I accept that this would have been distressing for Ms B.
54. There was also fault in the Council’s failure to respond to Ms B’s solicitor’s letter dated 24 January 2023. I accept that the Council may have thought that the legal challenge was without merit but it should still have responded and its failure to do so was fault.
55. In cases such as this one, where the injustice is distress, the Ombudsman can recommend a small financial symbolic payment to reflect the distress. I recommend the Council pays Ms B £150.
56. In terms of the FNC, the Council should have responded to Ms B’s question about FNC and its failure to do so was fault. The Council has said it has asked the Home to credit Dorset Council for the period from 25 July 2022 to 28 August and will adjust the outstanding invoice to reflect this FNC amount.

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Agreed action

57. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise to Ms B in writing for the distress she suffered as a result of the fault.
• Pay Ms B £150 as a symbolic payment for the distress.
58. The Council has also asked the Home to credit the Council for the FNC payments from 25 July to 28 August 2022 and the Council has said it will adjust the Council’s outstanding invoice to reflect this FNC amount. The Council has agreed to:
• Send the revised invoice to Ms B within one month of the final decision.

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Final decision

59. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman