The Ombudsman's final decision:
Summary: Mr X says the Council did not explain the financial cost of a stay in a residential home for his father in the summer of 2017. There was fault by the Council because it did not explain the cost in writing to Mr X and his father. However, this failing did not lead to significant injustice. Mr X’s father would have had to pay the cost even if the fault had not occurred.
- Mr X says the Council did not explain the potential financial cost of a stay in a care home for his father in the summer of 2017. Mr X says:
- Neither he nor his father were told there would be care home charges.
- There was a delay in providing reablement care to his father which meant he stayed in the care home for longer than was necessary and incurred additional charges.
- He was told by the care home manager there would not be any charges for his father’s residence.
- The options were not fully explained to them.
The Ombudsman’s role and powers
- 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we would find fault, or
- the fault has not caused injustice to the person who complained, or
- the injustice is not significant enough to justify our involvement, or
- it is unlikely we could add to any previous investigation by the Council, or
- it is unlikely further investigation will lead to a different outcome, or
- we cannot achieve the outcome someone wants, or
- there is another body better placed to consider this complaint, or
- it would be reasonable for the person to ask for a council review or appeal.
(Local Government Act 1974, section 24A(6), as amended)
- 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)
How I considered this complaint
- I reviewed the complaint and background information provided by Mr X and the Council. I made formal enquiries of the Council and considered its comments on the complaint and information it provided. I sent a draft decision statement to Mr X and the Council and considered the comments of both parties in reply.
What I found
- The Care Act 2014 and associated regulations set out the charging principles to be followed by local authorities when meeting the needs of eligible people requiring care.
- The local authority is not permitted to charge for aftercare provided under section 117 of the Mental Health Act 1983 and intermediate or reablement care services for the first six weeks.
- Local authorities now have discretion under section 14 of the Care Act to charge for any type of care. However, this is subject to the restriction in the Charging and Assessment of Resources Regulations 2014 of which regulation 12(1) prohibits the local authority from providing any assistance to a person in a care home who has resources above the financial limit. This means the local authority is still required to recover the full cost of providing residential care to a person with sufficient capital resources.
- The amount of the charge for care and support provided under the Care Act is to be determined by a financial assessment carried out in accordance with section 17 of the Act and the Charging and Assessment of Resources Regulations 2014.
- Chapter 8 of the care and support statutory guidance from the Department of Health provides information on charges for respite care. Paragraph 8.34 states:
‘Where a person is a temporary or short-term resident in a care home, a local authority may choose to charge based on its charging policies outside of a care home. For example, where a person is resident in order to receive respite care, for the first 8 weeks a local authority may choose to charge based on its approach to charging for those receiving care and support in other settings or in their own home.’
- Annex F to the guidance states:
‘A local authority can choose whether or not to charge a person where it is arranging to meet needs. In the case of a short-term resident in a care home, the local authority has discretion to assess and charge as if the person were having needs met other than by the provision of accommodation in a care home.’
- Lancashire County Council’s charging policy requires it to assess and charge a person who needs short term residence in a care home.
- Reablement is a short and intensive service, usually delivered in the home, which is offered to people with disabilities and those who are frail or recovering from an illness or injury.
- The purpose of reablement is to help people who have experienced deterioration in their health and/or have increased support needs to relearn the skills required to keep them safe and independent at home.
- Reablement services are run by local authorities, so eligibility can vary depending on where a person lives. They tend to be targeted at those for whom reablement will be most likely to lead to improvement. This means prioritising those people who are most likely to benefit by regaining physical function and improving their independence.
- People using the service must be medically stable and safe to be at home between visits. Reablement is usually free for the first six weeks.
- Mr X’s elderly father was discharged home from a stay in hospital in July 2017. As part of discharge planning, it was agreed the Council’s reablement service would be provided to him at his home.
- On 20 July 2017, an officer from the service visited Mr X’s father’s home but could not see him. It emerged that Mr X’s father was on his way back to hospital. The officer visited him later on the same day at his home. Mr X and his wife were present during the visit. A social worker as well as an occupational therapist were also present.
- All were concerned about the stability of Mr X’s father. The occupational therapist suggested equipment that would help support Mr X’s father. The Council agreed to provide ‘crisis care’ to Mr X’s father for a 24-hour period. This was fully funded by the Council with no charge to Mr X’s father.
- The social worker telephoned Mr X on the following day to discuss his father’s situation. The social worker also liaised with the crisis care team. This led to an urgent review visit on the same day. The social worker, an occupational therapist and a nurse attended Mr X’s father’s home. Mr X and his father were present.
- The professionals were concerned about the level of support Mr X’s father needed. Crisis support could only be provided for a maximum of 72 hours and so a short-term placement in a residential setting where he could receive the necessary support was considered to be the only viable option. The Council says the discussion included the possible financial implications of going into a care home. The social worker recorded both Mr X and his father as saying ‘money does not matter as the care is needed’.
- The crisis support was extended to the full 72 hours. The social worker liaised with the crisis care provider. The officer noted Mr X’s father required the assistance of two people for his personal care and transfers.
- The social worker visited Mr X’s father’s home along with a nurse on 24 July. Mr X, his wife and father were present. They identified a need for 24-hour support. The officer provided a list of available care homes to Mr X and his wife. The Council agreed to a further 24-hour period of crisis support for Mr X’s father. The social worker noted that she explained the financial implications of residence in a care home to Mr X a few days earlier and repeated the explanation to both of them again.
- The social worker then discussed Mr X’s father’s functional abilities with an officer from the Council’s reablement team. The reablement officer offered to visit Mr X’s father in the care home to provide some chair based exercises that he could complete while recovering in the care home.
- The social worker telephoned the manager of the care home chosen by Mr X’s family on 25 July. The officer also telephoned Mr X to let him know the time for his father’s arrival; the reablement team would provide chair based exercises for his father during his residence in the care home; and his father would be assessed by therapists and social workers while in the care home to plan for his future needs. The social worker says the financial implications around Mr X’s father’s residence were also discussed. This included the client contribution and potential top up fees. The social worker recorded that Mr X questioned the amount to be paid by his father but she was unable to answer the question as it would depend on the financial assessment.
- Mr X’s father stayed in the care home for five weeks. He received support from physiotherapists while in the care home. The reablement team continued the support when he went back to his home.
- The Council’s finance team contacted Mr X’s father in September 2017 when he was at his home. They conducted a financial assessment. Mr X’s father was liable to pay the full amount for his stay in the care home.
Mr X’s account
- Mr X says the social worker told him on 24 July 2017 that the crisis support ended after 72 hours and, as his father was unable to get in and out of bed, he would require 24-hour support in a residential setting. He says she advised him that this was the only option. He says his father had been in receipt of IHSS, which is Intermediate Home Support Service and many abbreviations were used without clear explanation.
- Mr X says the social worker telephoned him and gave a list of care homes with vacancies and used the term 'top-up' after some of them but there was no clear explanation of top up provided. He says they were given a couple of hours to find a placement for his father and this did not allow him to make an informed choice. Mr X says he and his father were aware that there could be a charge for the stay in the care home but insists they were not given information on the cost and were simply advised 'possibly'. Mr X says he was now aware there is a leaflet produced by the Council to provide information on the charging costs for stays in care homes but they did not receive this until September 2017.
- Mr X says his father agreed to the short stay because the social worker advised them this was the only option.
- Mr X says from the first day of his father’s stay in the care home he was an active participant in physiotherapy and progressed well. Mr X says this shows his father should have been considered for residential intermediate care to enable his father return to his home sooner. Mr X says the intermediate care service is free for up to six weeks although it can be extended further if required. Mr X says the Council failed to consider this option or ignored it so as to reduce, delay or prevent his father’s need for services.
- Mr X made a complaint on his father’s behalf in October 2017. He did not receive a response until March 2018. In the meantime, his father received letters which threatened the use of debt collectors. This exacerbated the distress caused by the delay in responding to the complaint.
- Mr X wants the Council to waive the cost of his father’s residence in the care home.
The explanation of the potential cost of residence in a care home
- It is clear from the accounts of both Mr X and the social worker that the social worker discussed the potential cost of residence in a care home for Mr X’s father as well as the possibility of a top up payment being required from Mr X. But Mr X says there was no proper explanation of the cost and invites the Ombudsman to make a finding on this point.
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- Here, on the balance of probabilities, I find it likely the social worker gave oral explanations of the potential cost of the stay in the care home.
- However, the social worker should have provided the explanation in writing. The social worker could have simply provided the Council’s leaflet on the Council’s charging policy. I note the leaflet was provided to Mr X and his father by the Council’s finance team at a later stage. The question mark over the extent of the explanation provided by the social worker could have been avoided had the information leaflet been provided following her discussions with Mr X; his wife and his father. I find fault because the social worker did not provide Mr X with a written explanation of the potential cost.
- And the injustice?
- We consider the injustice by assessing what would have happened but for the fault. Had the social worker provided the explanation in writing would Mr X’s father still have been charged for his stay in the care home? The answer is affirmative. So, I do not find Mr X’s father suffered significant injustice as a consequence of the identified fault. He still would have been charged for his residence in the care home. So, the outcome is not different from what would have happened without any fault in the process.
The reablement service
- Mr X contends that his father should have received a reablement service at his home rather than reside in a care home.
- However, the state of his father’s health at the time the decision was made that he needed support in a care home setting does not lead me to share Mr X’s conviction. For the reablement service to be provided a person must be stable and safe to be at home between visits. The circumstances in July 2017 do not suggest Mr X’s father was stable or safe to be at home without support.
- I note the social worker contacted the occupational therapist as well as Mr X to enable some form of reablement within the care home. I note the therapy that was to be provided would depend on the progress made by Mr X’s father. Mr X is correct to say that his father made progress when at the home but this does not mean the Council should have provided a full reablement service from the start of the placement. I do not find fault with the incremental approach taken by the Council given the state of health of Mr X’s father before he went into the care home.
The delay in the complaints process
- I find there was unreasonable delay by the Council in its handling of Mr X’s complaint. The Council apologised for the delay and placed a hold on recovery of the debt while it considered Mr X’s complaint.
- I consider the apology was the appropriate remedy for the understandable distress felt by Mr X and his father because of the delay. I note Mr X’s father’s distress because of the threat of the use of debt recovery agents. However, Mr X’s father was liable to pay the charges and it is not unusual for councils to use debt collectors to recover charges. I do not therefore consider a further remedy from the Ombudsman is warranted.
The statement by the care home manager
- Mr X says the care home manager told him his father would not have to meet the costs of his stay in the home. It is evident that Mr X was aware of the potential costs and so sought clarity from the care home manager. But the care home manager does not conduct financial assessments on behalf of the Council nor is the Council responsible for statements made by the care home manager during the conversation with Mr X.
- There was fault by the Council. However, the identified fault did not lead Mr X’s father to suffer a significant injustice that warrants further pursuit of the complaint by, or a remedy from, the Ombudsman.
Investigator's decision on behalf of the Ombudsman