Summary: We will not investigate Mrs B’s complaint about the Council placing her mother, Mrs C, in the wrong home in 2020. This is because we could not add to the Council’s responses or make a different finding of the kind Mrs B wants.

The complaint

1. Mrs B complained in 2021 and 2022 about the Council charging her mother, Mrs C for care she was told would be paid in full by the NHS following a stroke Mrs C suffered in 2020. Mrs B says the Council placed Mrs C in a residential care home when she should have been placed in a nursing home and did not include family members who hold Power of Attorney for Mrs C. Mrs B says the Council put wrong information in the Decision Support Tool (DST) which misled the NHS. Mrs B says the NHS told her if Mrs C had been correctly placed in a nursing home it would have paid for her care. Mrs B says the Council continues to invoice Mrs C for care and says it should waiver all charges.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
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)

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council wrote to Mrs B in May 2021 explaining as Mrs C’s family had refused to complete a financial assessment for her, Mrs C would be charged the full cost of her care. It explained the process for payment and said it will backdate charges to when Mrs C first received residential care.
7. Mrs B complained and said she believed care would be free of charge paid for by the NHS. The Council considered Mrs B’s complaint in July 2021. It accepted the allocated worker had miscommunicated information to Mrs B and agreed to waive a significant amount of the charges up to the point it became aware of the error in July 2021. It said it would complete an assessment of Mrs C’s finances to ensure any potential contribution would be at the correct rate, but the family refused to complete a financial assessment until the Continuing Health Care (CHC) appeal had been completed. The Council referred Mrs B to us at that time.
8. Mrs B complained to the Council again in November 2022. The Council confirmed its previous response stating it had agreed to waive charges up until July 2021 when it became aware of the error. It acknowledged a CHC appeal was being processed. The Council explained Mrs C would be liable for the charges from 12 July 2021 if the appeal was unsuccessful. The Council confirmed Mrs C had not been assessed as needing a nursing home and referred Mrs B to us.
9. Mrs B was advised Mrs C’s appeal for CHC funding was refused in March 2021.
10. Mrs B could have come to us in 2021 and 2022 at the latest if she was unhappy with the Council’s responses to her concerns. However, it is unlikely that further investigation by us could add to the Council’s responses. Mrs B says Mrs C would have received NHS free care if she had of been placed in a nursing home at the time, but in March 2021 the NHS refused CHC funding for Mrs C stating she did not have a primary health need and her needs were primarily personal and social.
11. It is not an administrative function of the Council to decide whether a person is eligible for CHC funding, nor can the Council decide not to provide CHC funding. In the absence of evidence from the NHS confirming Mrs C was eligible for CHC funding from 2020 to date, there is no fault with the Council for charging Mrs C for care it provided during this period. The Council acknowledged fault in 2021 and remedied this by cancelling care charges up until the error was identified in July 2021. We could not add to this.
12. If Mrs B has evidence that Mrs C would have been eligible for CHC funding from 2020 she can ask the NHS to consider a retrospective application.
13. If Mrs B is concerned Mrs C does not have enough capital and should not pay the full cost of her care she can complete the financial assessment form on her behalf and ask the Council to reassess her finances.

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Final decision

14. We will not investigate Mrs B’s complaint because further investigation by us could not add to the Council’s responses or make a different finding of the kind Mrs B wants.

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Investigator's decision on behalf of the Ombudsman