Summary: Ms X complained the Council failed to involve her in her mother, Mrs Z’s, financial assessments even though she has power of attorney, failed to assign Mrs Z a social worker between 2017 and 2019 and did not carry out proper needs assessments. The Council was not at fault when it did not assign Mrs Z a social worker. It was at fault when it did not send Ms X copies of Mrs Z’s annual financial assessments but this did not cause an injustice. The Council should remind staff of the need to send financial assessments where someone holds power of attorney. The Council was also at fault when it took too long to review Ms Z’s care and support plan but there is no evidence she missed out on care she needed. If Ms X believes Ms Z was entitled to funded nursing care she can make a retrospective application to the NHS.

The complaint

1. Ms X complained that following her mother’s admission to a care home in May 2017 the Council:
1. has failed to involve her as power of attorney in her mother’s financial assessments since 2016;
2. failed to allocate her mother a social worker in 2017;
3. has failed to carry out proper needs assessments since 2017; and
4. breached the General Data Protection Regulations (GDPR) and failed to provide social care and financial records.
2. Ms X says that had the Council carried out a full needs assessment earlier her mother would likely have received NHS continuing healthcare (CHC) funding sooner.

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What I have investigated

3. I have investigated complaints 1a), 1b) and 1 c) and explain the scope of my investigation in more detail in paragraphs 5 and 6. I have not investigated complaint 1d) and explain my reasons why in paragraph 51.

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The Ombudsman’s role and powers

4. 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)
5. I have decided to exercise my discretion and investigate complaint 1b) from 2017 onwards. This is because Ms X said she was unaware the Council should have allocated Mrs Z a social worker until the Council responded to this matter as part of her complaint in 2019.
6. I will not exercise my discretion and consider the complaints 1a) and 1c) from 2017. This is because Ms X complained to the Council about these matters in 2017. The Council signposted her to the Ombudsman if she remained unhappy but Ms X did not come to us at that point and I can see no good reason why she did not. Therefore, I will investigate these complaints from September 2018 to September 2019 which is the 12 month period up to when Ms X complained to us.
7. We normally expect someone to refer the matter to the Information Commissioner (ICO) if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
8. 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)
9. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
10. 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)
11. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

12. I considered Ms X’s view of the complaint, and evidence she provided.
13. I made enquiries of the Council and considered the information it provided.
14. I wrote to Ms X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

The law

15. The relevant law is the Care Act 2014, the Care and Support Statutory Guidance 2014 and the the Care and Support (Charging and Assessment of Resources) Regulations 2014.

Care and support plans

16. The Act specifies that care and support plans must be kept under review generally. The expectation is that councils should conduct a review of the plan no later than every 12 months.
17. Councils should establish systems that allow the proportionate monitoring of both care and support plans to ensure that needs are continuing to be met.

Financial assessments

18. The Act gives councils the power to charge for care and support services they provide or arrange. Where a council decides to charge it must do so in line with the Care and Support (Charging and Assessment of Resources) Regulations. It must assess how much the person can afford to pay by completing a financial assessment.
19. Councils should have regard to ensuring the planned review is proportionate to the circumstances, the value of the personal budget and any risks identified. There should be a range of review options available, which may include self-review, peer-led review, reviews conducted remotely, or face to face reviews with a social worker or other relevant professional.
20. In all instances, the method of review should, wherever reasonably possible, be agreed with the person and must involve the adult to whom the plan relates, any carer the adult has and any person the adult asks the authority to involve.
21. Councils must regularly reassess a person’s ability to meet the cost of any charges, usually every 12 months.
22. Where a person lacks capacity, the council must establish whether a person has a deputy of the Court of Protection or a person with Lasting Power of Attorney acting on their behalf.
23. People who have savings over the upper capital limit of £23,250 have to pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they have to pay an assessed contribution towards their fees. The council will carry out a financial assessment to decide how much they can afford to pay towards this. This will take into account income such as pensions and benefits. The Council must leave the person in the care home with a personal allowance which is set by government. This is currently £24.90 a week.

NHS funded continuing health care (CHC) and funded nursing care (FNC)

24. The NHS is responsible for meeting the cost of care provided by registered nurses to residents in all types of care homes. Council funded and self-funding residents who need to move into care homes with nursing should have a comprehensive assessment to identify any nursing needs, including the possible need for NHS-funded continuing healthcare (CHC) or for NHS-funded nursing care (FNC).
25. If someone is unhappy with the NHS decision not to award CHC or FNC, they can appeal to the relevant section of the NHS. It is also possible to ask for funding to be approved retrospectively.
26. If a council is responsible for any part of the person’s package of care, it should continue to carry out annual reviews.

What happened

Background

27. Ms X’s mother, Mrs Z, used to be a resident at a residential care home. In April 2017, because of declining health, Mrs Z moved to Orchard House Nursing Home. Ms X has power of attorney for Mrs Z who has dementia.
28. A Council social worker visited Mrs Z when she first moved into the nursing home and carried out a social care needs assessment. Ms X contributed to the assessment and her comments were recorded in the care plan.
29. The Council carried out a financial assessment for Mrs Z. The Council asked Ms X to provide Mrs Z’s bank statements so it could determine how much savings she had. Initially, Ms X did not do so and so the Council based the financial assessment on Mrs Z’s pension alone. It calculated Mrs Z could afford to contribute £257 a week towards the costs of her care. The Council sent Ms X a copy of the financial assessment.
30. The social worker left the Council which did not allocate Mrs Z with a replacement.
31. In August 2017, Ms X complained to the Council. One of her complaints was that the Council did not involve her in Mrs Z’s financial assessment when she moved to the nursing home although she had power of attorney for finances for Mrs Z.
32. The Council responded and provided Ms X with a chronology of its actions, including details of Mrs Z’s financial assessment, which was based on her bank statements and her income from private and state pensions. It did not uphold Ms X’s complaint and directed her to complain to the Ombudsman if she remained unhappy. Ms X did not do so.
33. The Council carried out a light touch financial assessment in 2018. It said it based this on any national changes to the benefits Mrs Z received.
34. In September 2018, a social worker telephoned the nursing home to carry out a telephone review of Mrs Z’s care plan. The nursing home manager refused to take part because she said it would be a breach of data protection legislation to carry out the review on the telephone. The manager asked for the review to be held in person at the nursing home.
35. The Council took no further action at the time. In February 2019 it allocated Mrs Z’s case to another social worker who visited Mrs Z to carry out a care review in March 2019. The social worker referred Mrs Z for a funded nursing care assessment.
36. The funded nursing care assessment took place on 8 May 2019. This found Mrs Z was eligible to receive funding.
37. Also in 2019, the Council carried out another light touch financial assessment. Again, it based this on any changes to Mrs Z’s benefits.
38. Ms X’s legal representative complained to the Council in June 2019 about the issues outlined in paragraph 1 of this decision statement. The Council responded in July 2019. It said:
• the reasons for the delay in carrying out Mrs Z’s care assessment in 2018 was due to resource issues; and
• Mrs Z’s financial reviews were light touch and in April each year these were carried out based on any changes to benefits. The Council admitted it had failed to send these to Ms X.
39. The Council informed Ms X that Mrs Z owed around £33,000 in nursing home fees which required paying.
40. Ms X remained unhappy and complained to the Ombudsman.

My findings

Allocation of a social worker to Mrs Z and assessments of Mrs Z’s care

41. It is common practice for social workers to be allocated for time-limited work. For example, they may be assigned to carry out a needs assessment or to review someone's care. When that work is complete the social worker's involvement may cease.
42. I can see no reason why Mrs Z required a social worker once she had moved into the nursing home. There was no fault in the Council’s actions.
43. The law says councils should regularly review people’s care needs to ensure their support plans are appropriate. This should be every 12 months. The Council assessed Mrs Z in June 2017 but then, after its attempt to carry out the review by telephone failed, did not carry another review until March 2019, around 21 months later. This is not in line with the legislation and the delay is fault.
44. There is no evidence Mrs Z experienced any injustice with regard to the level of care she received because of the delays in carrying out the review. If Ms X has evidence or believes that her mother would have been eligible for CHC funding funded nursing care earlier she can ask the NHS to consider a retrospective application.

Financial assessments

45. Mrs Z’s capital, which includes her savings, was below the lower threshold which meant the Council did not take this into account when calculating what Mrs Z could afford to pay. Instead, the Council based her contributions on her income, which came from her pensions. This is line with the relevant legislation.
46. The regulations state that councils should have regard to ensuring financial reviews are proportionate to the circumstances, the value of the personal budget and any risks identified. The Council was aware Mrs Z’s income derived from her pension and other benefits which remained static, other than annual increases by the government. It carried out a desk-top assessment of Mrs Z’s finances which, in these circumstances, was proportionate. There was no need to meet with either Mrs Z or Ms X. There was no fault in the Council’s actions.
47. After each annual assessment, I would have expected the Council to provide Ms X with a copy of Mrs Z’s annual review because she has power of attorney for Mrs Z. The Council failed to do so and this is fault.
48. However, this did not cause Mrs Z or Ms X an injustice. The assessments were carried out without fault and Mrs Z received the care she has been charged for.

Agreed action

49. Within two months of the date of the final decision, the Council should remind staff of the requirement to send financial assessments to representatives who hold power of attorney for clients.

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Final decision

50. I have closed my investigation. There was fault but this did not lead to any injustice.

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Parts of the complaint that I did not investigate

51. I have not investigated the complaints below that the Council:
• has failed to involve her as Power of Attorney in her mother’s financial assessments since 2016 – I have looked at this complaint from 2018 onwards. This is because Ms X has already complained to the Council about this in relation to the 2016 financial assessment. If she was unhappy with the outcome, she could have complained to us, as she was signposted to do in the Council’s complaint response. She could also have done so if she was unhappy with the 2017 financial assessment.
• failed to carry out a proper needs assessment in 2017 – if Ms X was unhappy about this she could have complained to the Council and then to us at the time. Ms X has provided no good reason why she did not do so. Therefore I have investigated from September 2018.
• breached the General Data Protection Regulations (GDPR) and failed to provide social care and financial records - the ICO is the UK’s independent body established to uphold information rights. It deals with complaints about public authorities’ failures to comply with data protection regulations and legislation and access to information. The Ombudsman cannot determine whether the Council has breached the GDPR nor can we compel the Council to provide records to Ms X. It is therefore reasonable to expect Ms X to contact the ICO about such matters.

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Investigator's decision on behalf of the Ombudsman