Summary: The Council delayed in completing a financial assessment in respect of Mr C’s contribution towards the cost of his care. This was fault but the Ombudsman is satisfied the Council told Mr C’s family of the estimated charges and is entitled to seek to recover them. The Council’s finance team did not act insensitively by requesting payment shortly after Mr C died because it was unaware of his death.

The complaint

1. Mr B complains that:
• the Council delayed in completing a financial assessment in respect of his late father's contribution towards the cost of his care. It did not notify him of the contribution until after his father's death by which time he, as trustee of the estate, had distributed his late father's assets;
• the Council acted insensitively by requesting payment just a few days after his father died; and
• neither he nor his father were made aware that the NHS had stopped funding CHC for his father in May 2018.

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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. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. I have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
5. I have written to Mr B and the Council with my draft decision and considered their comments.

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What I found

Legal and administrative background

Charging for residential care

6. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the council incurs (Care Act 2014, section 14).
7. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014” and the “Care and Support Statutory Guidance 2014”.
8. When a council arranges a care home placement, it must follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. The Council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees. In doing so, it can take into account a person’s capital, savings and income subject to certain conditions (Care Act 2014; Department for Health Care and Support statutory guidance 2014).

NHS Continuing Healthcare

9. NHS Continuing Healthcare (CHC) is a package of care arranged and funded solely by the NHS. It can provide CHC at home or in a care/nursing home. The NHS is responsible for meeting the full cost of care in a care home for residents whose primary need for being in care is health-based. The 2012 regulations say the NHS should assess for CHC where it appears someone may need such care.
10. Eligibility for CHC does not depend on particular diagnoses or conditions. Rather, it rests on whether a person has a ‘primary health need’. This is where a person’s overall needs go beyond the limits of a local authority’s responsibilities.

Key facts

11. Mr B’s father, Mr C, was in a care home. His care was partially funded by CHC from June 2017. Before this Mr C’s care was funded by the Council and he paid a statutory contribution towards the cost of his care. His contribution stopped for the period of CHC funding.
12. Mr C’s CHC funding was reviewed by the NHS on 13 March 2018. It decided he no longer met the criteria and funding would end on 10 April 2018. Accordingly, the NHS made a referral to the social care team to begin relevant assessments.
13. On 19 March 2018 a social worker telephoned Mr B explaining a new care needs assessment and a new financial assessment were needed for the Council to take over funding Mr C’s placement and a new financial assessment. Mr B confirmed he did not have power of attorney but was his father’s main contact for finances.
14. On 30 April 2018 Mr B completed and signed an application for financial support form on behalf of his father. In doing so, he agreed that “The Applicant will pay each week towards the cost of the Applicant’s care, such amount as the Applicant is assessed to pay by the council in accordance with sections 22 and 26 of the National Assistance Act 1948”.
15. The social care team completed a care needs assessment and submitted this to the Council’s brokerage service on 8 May 2018 via the Council’s electronic social care record. They asked for funding for Mr C to remain in his current placement. The social worker telephoned Mr B to explain that the assessment had been sent to the brokerage service for them to approve and confirm the funding level. She explained she could not guarantee the brokerage team would approve the placement and, if there was a cost-effective alternative, Mr B may have to pay a top up in order for Mr C to remain in his current care home.
16. The brokerage service returned the assessment paperwork to the social worker on 10 May 2018 requesting amendments.
17. On 15 May 2018 a finance officer wrote to Mr B advising that his father’s estimated weekly contribution towards the costs of his care was £319.29 per week. She said the finance team would send a confirmed assessment and a contract in due course and that the Home would send invoices.
18. On 2 July 2018 the brokerage service sent a further request to the social worker for the amended documentation.
19. On 4 July 2018 a social care assessor telephoned Mr B who confirmed he was aware a contribution towards care costs was being considered. He agreed to send a copy of Mr C’s current bank statements.
20. On 26 November 2018 CHC contacted the social worker to find out what was happening in respect of Mr C’s funding. The social worker says she was unaware of the brokerage service’s request for amendments to the assessment paperwork until she received the request from CHC. She inputted the required amendments into the system on 21 December 2018.
21. Mr C died on 23 December 2018. Mr B spoke to the owner of the care home who confirmed that the care course had been covered by the NHS and there were no outstanding charges.
22. The finance team authorised the service provision on 27 December 2018 and wrote to Mr B on 7 January 19 confirming the cost of the placement and the assessed weekly charge of £319.29 per week.
23. On 4 January 2019 Mr B distributed Mr C’s assets to family members.
24. On 10 January 2019 Mr B telephoned the finance officer querying the letter he had received. He explained he had already distributed Mr C’s estate. He said he was unaware Mr C had to contribute towards his care costs and that retrieval of the money from the beneficiaries would cause hardship and distress. The Council maintained that Mr C’s estate was liable for the debt of £10,627.80.

Analysis

Delay in completing a financial assessment

25. Mr B says the Council’s delay in notifying him of his father’s contribution towards his care costs led him to believe there were no costs to pay. He says he did not realise CHC funding had ceased because the care home told him this would not happen and that his father was fully funded by the NHS. He therefore believed the costs were covered.
26. The Council says Mr B was aware Mr C would have to contribute towards the cost of his care when CHC funding ended.
27. Councils have a legal duty to charge people for residential care. Mr B agreed to a financial assessment for his father’s care in April 2018. The Council did not carry this out until December 2018 because the social work team failed to provide the necessary information to the brokerage team so it could not process the request for funding. The Council has apologised for the delay.
28. The delay in completing the financial assessment was fault. But this did not cause a significant injustice to Mr C. He received care and was required to pay for it. Mr B had signed a financial assessment form and so was aware Mr C’s finances would be assessed and Mr C would need to pay a contribution towards his care charges. The Council gave Mr B an estimate of Mr C’s weekly contribution in May 2018 and Mr B confirmed on 4 July 2018 that he was aware Mr C would be required to contribute towards the cost of his care.
29. For the reasons set out above, I consider there is no fault in the Council’s decision to seek to recover the amount owing in respect of Mr C’s contribution towards the costs of his care from his estate.

Insensitivity

30. Mr B says the Council acted insensitively by writing to him about his late father’s contributions just a few days after he died and by not acknowledging his father’s death in the letter.
31. The Council has explained that the finance team was unaware Mr C had died at the time it sent the letter. It only became aware of this when Mr B telephoned on 10 January 2019. Mr B does not accept that the finance team was unaware of his father’s death but there is no evidence to suggest that they were.
32. It was unfortunate that the brokerage team wrote to Mr C at such a difficult time but, as there is no evidence to suggest it was aware of the situation, there are no grounds to criticise it for doing so.

Failure to notify Mr B that CHC funding had stopped

33. Mr B says neither he nor Mr C were made aware that the NHS had stopped CHC funding in April 2018.
34. It is clear from the documents provided by the Council that it explained to Mr B in March and May 2018 that CHC funding would end. It appears the NHS continued to fund Mr C’s placement beyond April 2018 as it was waiting for the Council to take over the funding. This is normal procedure to avoid vulnerable people being left without care. Once the Council had completed the financial assessment, it would have taken over funding from the NHS and this would have been backdated to April 2018 when Mr C ceased to be eligible for CHC funding.
35. The care home told Mr B nothing was owing because the NHS had continued to pay for the placement in the meantime. But it should have advised him to contact the relevant clinical commissioning group (CCG) or the Council to confirm the position.
36. Mr B considers CHC funding should not have ended as his father was still eligible. It is not the Ombudsman’s role to determine whether people are eligible for CHC. This decision must be made by suitably qualified medical professionals. Mr B could have complained to the relevant Clinical Commissioning Group about the decision that Mr C no longer qualified for funding. It remains open to him to pursue this with the Parliamentary and Health Service Ombudsman.

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Final decision

37. I find the Council was at fault in that it delayed in confirming Mr C’s assessed contribution towards the cost of his care. However, I do not consider this caused a significant injustice because Mr C received the care he needed and was required to pay for it.
38. I find no fault in the Council’s decision to seek to recover the amount owing in respect of Mr C’s contribution towards the costs of his care from his estate. Mr B was aware of the estimated contribution and the onus was on him to check with the Council before distributing Mr C’s estate.
39. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman