Summary: Mrs B complained the Council failed to review her mother’s care needs which meant it did not consider a referral for continuing healthcare, failed to follow procedures when setting up a deferred payment arrangement and unreasonably pursued the family for care fees when a continuing healthcare assessment is outstanding. The Council was at fault for not carrying out annual reviews but not for the way it set up the deferred payment arrangement or for seeking repayment of care fees from the family. An apology is satisfactory remedy for the injustice caused.

The complaint

1. The complainant, whom I shall refer to as Mrs B, complained about the way the Council dealt with her mother’s care needs. Mrs B complained the Council:
• failed to review her mother’s care needs between 2013 and 2017 which means it did not consider a referral for continuing healthcare;
• failed to follow its procedures when setting up a deferred payment arrangement; and
• unreasonably pursued the family for care fees when a continuing healthcare assessment is outstanding.

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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 an injustice, we may suggest a remedy. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Mrs B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1) and 26A(1), as amended and section 34(3))
3. 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

4. As part of the investigation, I have:
• considered the complaint and Mrs B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided;
• considered Mrs B’s comments on my draft decision; and
• gave the Council an opportunity to comment on my draft decision.

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What I found

Background

5. Mrs B’s mother went into residential care in 2011. As Mrs B’s mother owned a property and could not afford to cover her care fees her power of attorney signed a deferred payment arrangement. That allowed the Council to pay the difference between what Mrs B’s mother could afford to pay and her full care fees. The agreement allowed the Council to recover that amount either when Mrs B’s mother sold her property or 90 days after her death. Both in correspondence with the power of attorney and in the deferred payments agreement the Council said it would place a charge on Mrs B’s mother’s property to enable it to recover the amount owed.
6. The Council did not place a charge on the property and did not identify its failure to do that until 2016. So, the Council asked the power of attorney to complete the paperwork again so the Council could register the charge. Unfortunately the Council did not complete that action before Mrs B’s mother sadly died in May 2017.
7. On 8 June 2017 the Council sent the executors of the estate a bill for £56,127.96 which was the amount the Council had paid towards Mrs B’s mother’s care. Mrs B contacted the Council and said because it had not completed reviews between 2013 and 2017 it was possible her mother would have received continuing healthcare. Mrs B said the family had applied for that retrospectively. Mrs B told the Council she did not consider it should recover the outstanding amount until it knew the decision from the continuing healthcare assessment. That is because that could either reduce or wipe out the amount owed. Mrs B also queried whether the deferred payment agreement was valid as the Council had not complied with some parts of it, including placing a charge on the property.
8. The Council conceded it had not carried out reviews between 2013 and 2017 and apologised. The Council told Mrs B it considered the deferred payments agreement valid and the balance outstanding. That was because the Council had clear evidence Mrs B’s mother received residential care and her power of attorney had agreed to pay for that care.
9. When the Council did not receive payment it took legal advice. The Council’s solicitor wrote to the executors of the estate on 14 May 2019, asking for payment within 14 days. The letter told the executors the Council reserved the right to take further action, including legal action, if it did not receive payment. The letter also told the executors if the continuing healthcare assessment resulted in a financial award the Council would honour that finding and refund any amount owed to the estate. I understand since that letter the executors have paid the outstanding amount to the Council.

National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care Guidance

10. Where adults receive care and support from local authorities they normally do so under the provisions of the Care Act 2014, subject to them meeting national eligibility criteria for care and support and usually subject to means testing, which may require them to make a financial contribution towards the cost or to meet the full cost themselves.
11. Where individuals receive care, treatment or support from the NHS this is normally under the provisions of the National Health Service Act 2006. This support is provided free at the point of delivery to the individual.
12. To assist in determining which health services it is appropriate for the NHS to provide under the NHS Act, and to distinguish between those and the services that local authorities may provide under the Care Act 2014, the Secretary of State has developed the concept of a ‘primary health need’. Where a person has been assessed to have a primary health need, they are eligible for NHS Continuing Healthcare and the NHS will be responsible for providing for all of that individual’s assessed health and associated social care needs, including accommodation, if that is part of the overall need. Determining whether an individual has a primary health need involves looking at the totality of the relevant needs. In order to determine whether an individual has a primary health need, an assessment of eligibility process must be undertaken by a multidisciplinary team (MDT) which must use the national DST.
13. An individual has a primary health need if, having taken account of all their needs (following completion of the Decision Support Tool), it can be said the main aspects or majority part of the care they require is focused on addressing and/or preventing health needs. Having a primary health need is not about the reason why an individual requires care or support, nor is it based on their diagnosis; it is about the level and type of their overall actual day-to-day care needs taken in their totality.

Analysis

14. Mrs B says the Council failed to review her mother’s care needs between 2013 and 2017. Mrs B says her mother’s health declined between those dates. Mrs B says if the Council had carried out an annual assessment it would likely have identified that and the need to apply for continuing healthcare. Mrs B says her mother would likely have received that. Mrs B says it would have affected the amount the Council later sought under the deferred payments agreement.
15. The documentary evidence I have seen satisfies me the Council only carried out reviews in 2012 and 2013. As the Council has noted, the Care Act 2014 guidance says local authorities should carry out a review of care plans no later than every 12 months, which is also the Council’s practice. So, failure to carry out reviews between 2013 and 2017 is fault. The Council has accepted that and apologised, which I welcome.
16. The issue is therefore whether the Council would have made a referral for continuing healthcare had it carried out reviews between 2013 and 2017. I have considered the documentary evidence. I have identified no evidence of either family members or the care home raising concerns with the Council about the decline in Mrs B’s mother’s health and the implications for her care. I see no reason Mrs B would have known to talk to the Council about the possibility of continuing healthcare funding. However, the home would have known about that. I would expected the home to have contacted the Council if it had identified Mrs B’s mother needed extra care due to declining health and that this could create a primary health need. I would also have expected the home to contact the Council if it considered Mrs B’s mother’s health was declining rapidly at the end of her life which would have warranted a fast-track continuing healthcare assessment. I have seen no evidence of that.
17. I have taken into account the time that has passed, the fact Mrs B and other family members did not ask for a review despite being aware of annual reviews in 2012 and 2013 and the lack of contact from the home about a decline in health. I also note the continuing health care assessment is not completed which means I cannot speculate about whether Mrs B’s mother will be entitled to continuing health care. Taking those matters into account, I could not reach a safe conclusion about whether the Council would have identified the need for a continuing healthcare assessment had it carried out reviews between 2013 and 2017. Nor could I say the Council was at fault for not making a referral for a fast-track continuing healthcare assessment towards the end of Mrs B’s mother’s. That is because there is no evidence family members or the home raised concerns with the Council about her declining health. I therefore consider Mrs B’s injustice is limited to the time and trouble she had to go to pursuing her complaint and her doubt about whether the outcome would have been different had the Council carried out the reviews as it should have done. I consider the apology the Council has already given satisfactory remedy for that as I cannot speculate about what would have happened had the Council carried out reviews.
18. Mrs B says the Council failed to follow its procedures when it set up a deferred payment agreement. Mrs B says the Council did not place a charge on the property, did not carry out annual inspections, did not provide a copy of tariffs and notice of costs and did not seek evidence of house insurance. Mrs B is referring here to various sections of the deferred payment agreement. However, I have seen nothing in the deferred payment agreement to suggest it is invalid if the Council does not register a charge on the property, does not carry out inspections or does not seek evidence from the owner of the property. The point of the deferred payment agreement is the Council agrees to cover the costs of the charges for the care home on the basis it can recover those charges from the owner of the property. So, whether the Council registered the charge, carried out the inspections or carried out any of the other actions noted by Mrs B does not, in my view, invalidate the agreement.
19. There is, however, a requirement in the care and support guidance for the Council to have issued six monthly statements. Those statements should set out the amount of fees deferred, interest and administrative charges accrued to date, the total amount due and the equity remaining in the home. I have seen no evidence the Council issued six monthly statements in this case. That is fault. However, I do not consider anything other than an apology necessary in this case. That is because I am satisfied the power of attorney knew the weekly fee the Council was paying and that this would be repayable. I do not consider failure to produce six monthly statements means the Council could not recover the money due.
20. Mrs B says the Council should not have pursued the family for the outstanding care fees when it knew they had applied for retrospective continuing healthcare. Mrs B says because the assessment may result in a fall in the amount owed to the Council, or no amount due at all, the Council should not have chased repayment. I understand why Mrs B would take that view. I at first asked the Council to consider putting recovery of the money on hold awaiting the continuing healthcare decision. However, the Council declined to do that as it could not say when the assessment would complete and it considered the amount due. I remain of the view it would have been helpful for the Council to put recovery on hold to await the continuing healthcare decision. However, on balance I could not say the Council was at fault for not doing so. That is because there is no guarantee the continuing healthcare assessment will result in an award. Irrespective of that, the fact remains the power of attorney for Mrs B’s mother had signed an agreement in 2012 which provided for the Council to recover the amount it had paid. That agreement made clear the amount was due to the Council either on the sale of the property or within 90 days of Mrs B’s mother’s death. In this case the amount was due in August 2017 and much time has passed since then. In those circumstances I cannot criticise the Council for seeking repayment of the money. I welcome its agreement though to refund the family any funds which are due should the continuing healthcare assessment result in an award.

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Recommended action

21. Within one month of my decision the Council should apologise to Mrs B for failing to issue six monthly statements as referred to in paragraph 19. The Council has already apologised for the failure to carry out annual reviews between 2013 and 2017.

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Final decision

22. I have completed my investigation and found fault in part of the complaint which caused an injustice to Mrs B. I consider the action the Council will take is sufficient to remedy Mrs B’s injustice.

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Investigator's decision on behalf of the Ombudsman