Summary: Mrs X complained that the Council failed to properly assess the amount her father could afford to pay towards his care. Mrs X has successfully appealed the decision of the NHS not to award her father continuing health care. This means the NHS will pay for his health and social care costs from June 2017. The Council will also write off any outstanding fees from before June 2017. The Ombudsman will not investigate this complaint because it is unlikely we could achieve anything more.

The complaint

1. Mrs X complained the Council failed to properly assess how much her father, Mr F, could afford to pay towards the costs of his care.
2. Mrs X said this caused Mr F financial hardship and stress and has also affected her health.

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The Ombudsman’s role and powers

3. 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 further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

4. I spoke to Mrs X and considered her views of the complaint.
5. I considered the information provided by Mrs X.
6. I wrote to the Council about any outstanding debt for the period up to June 2017.
7. Mrs X and the Council had the opportunity to comment on my draft decision.

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What I found

The law

Paying for care

8. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.
9. Where a council has decided to charge it must carry out a financial assessment of what the person can afford to pay. Councils must ensure that a person’s income is not reduced below a specified level after charges have been deducted.
10. In assessing what a person can afford to contribute a local authority must apply upper and lower capital limits.
11. A person with assets over the upper capital limit will be deemed able to afford the full cost of their care. Capital below the lower capital limit should be disregarded.

Continuing healthcare

12. Continuing healthcare (CHC) is a package of care arranged and funded solely by the health service. CHC is for people whose main care need is health related, who are not in hospital and who have complex ongoing health needs. It is fully funded by the health service and the person pays no contribution.
13. Decisions about who is eligible for CHC are made by the local Clinical Commissioning Group (CCG). CCGs are part of the NHS.

What happened

14. After having a stroke together with other health conditions, Mr F required 24 hour care in his own home.
15. Mr F used to pay for his care, but in 2017 his capital fell to a level where he was approaching the lower threshold. Mrs X, therefore, asked the Council to assess Mr F to determine how much he could afford to contribute towards his care.
16. Mrs X was unhappy with the financial assessment and also believed Mr F qualified for CHC.
17. The CCG assessed Mr F for CHC and decided he did not qualify.
18. In 2019, the Council sent Mr F a bill for the amount he owed for his care. Mrs X complained. The Council replied and said Mr F could afford to make the contribution identified in his assessment.
19. Mrs X appealed the CCG’s decision to NHS England about whether Mr F qualified for CHC. She also complained to the Ombudsman about the Council’s financial assessment of Mr F.
20. In May 2020, NHS England upheld Mrs X’s appeal. It backdated Mr F’s CHC for three years to June 2017. NHS England cannot backdate appeals any further than three years.
21. Mrs X said this meant there was still a period of several months prior to June 2017 when the contributions Mr F made towards his care were incorrect.
22. I asked the Council for an update on its intentions with regard to any outstanding care fees from before June 2017. The Council said it was not intending to take any further action and would write off any amounts still owing.

My findings

23. 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 we cannot achieve anything further. Following Mrs X’s successful appeal to NHS England, the CCG must now pay all of Mr X’s costs from June 2017. The Council has said it intends to write off any outstanding care fees from before June 2017. There is nothing further I could achieve. Therefore, I have discontinued my investigation.

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Final decision

24. I have discontinued my investigation. This is because an investigation could achieve nothing further.

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Investigator's decision on behalf of the Ombudsman