Summary: Mrs X complained the Council did not explain there would be a cost for the first six weeks of Mr D’s residential care, whilst his needs were assessed. The Council was at fault for providing inconsistent information about the nature of the placement and for not providing any information about the costs until after the six week assessment period had ended. To remedy this it should apologise and waive some of the costs.

The complaint

1. Mrs X complained, on behalf of her late father, Mr D, that the Council failed to explain there would be a charge for the first six weeks of residential care, following his hospital discharge. Mrs X understood this was an assessment period to determine if he needed more care than he received at home and there would be no charge for it. She says the Council did not give the family any information about the charges until after the assessment period ended. She considers Mr D should not have to pay for the first six weeks.

Back to top

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. 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.
4. 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)

Back to top

How I considered this complaint

5. I considered:
• the information provided by Mrs X and the Council;
• relevant law and guidance, as set out below; and
• our guidance on remedies.
6. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

Back to top

What I found

Relevant law and guidance

Assessment of care needs

7. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and, where suitable, their carer or any other person they might want involved.

Charging for social care services

8. 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)
9. Statutory guidance says councils must not charge for certain types of support, which must be arranged free of charge. This includes intermediate care, which must be provided free of charge for up to six weeks. (Care and Support Statutory Guidance, at para 8.14)
10. Intermediate care includes services provided to people for a limited period after they have left hospital to assist them to maintain or regain independence and return to their home. (Care and Support Statutory Guidance, at para 2.14)

Charging for temporary residential care

11. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt that permanent admission is required. The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance 2014 set out charging rules for temporary residential care. When the Council arranges a temporary care home placement, it has to follow these rules when undertaking a financial assessment to determine how much a person has to pay towards the costs of this stay. The Council can either charge the person under the rules for temporary residential charging or treat the person as if they are still living in the community (i.e. the non-residential rules for charging).

Charging for permanent residential care

12. 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. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
13. 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.

NHS continuing health care (CHC)

14. “NHS continuing healthcare (NHS CHC) is a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs that have arisen because of disability, accident, or illness.” (NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012).
15. The NHS can provide continuing healthcare 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 NHS Continuing Healthcare where it appears somebody may be in need of such care.

The trusted assessor model

16. The Council, with its health partners, operates what it calls a trusted assessor model. A trusted assessor carries out an assessment of a person in hospital and decides which of three pathways are appropriate for them:
• Pathway 1 – to return home with support;
• Pathway 2 – short term rehabilitation or short term transitional care;
• Pathway 3 – ongoing nursing care
17. The trusted assessor can refer the person for jointly commissioned beds at a local care home if pathway 2 is appropriate.

What happened

18. Mr D was living in his own home, with care calls three times daily and significant support from his family. He was admitted to hospital in April 2019 after a fall outdoors. He was in hospital for two weeks. When he was medically ready for discharge, Mrs X says a health professional told her they would arrange for respite care for Mr D whilst his needs were assessed. She says she understood the assessment period was free of charge.
19. A trusted assessor decided it was not safe for Mr D to return home because of his dementia but he did not meet the criteria for CHC. They recommended transitional care to determine his long term care needs under pathway 2. The trusted assessor could only refer Mr D for one of the jointly commissioned beds. Mrs X did not want Mr D to go to that care home so the trusted assessor made a referral to the Council to appoint a social worker.
20. Officer 1, a social worker, met Mr D and Mrs X in hospital in early May 2019. An initial care plan was completed, which stated Mr D needed a “transitional placement to establish level of long term need”. Mrs X visited two care homes and stated which she preferred. She asked if Mr D could be placed in the residential care unit rather than the elderly mental infirm (EMI) unit. Officer 1 confirmed she would ask the care home manager to assess Mr D and confirm the care home could meet his needs.
21. The care home manager completed their assessment the following day. The Council’s record of their telephone call to Officer 1 states the manager had agreed Mr D could be placed in the residential unit but that “family [were] aware a move to EMI will be required if unable to offer appropriate support on residential”. The manager said she was aware of some aggressive behaviours whilst Mr D was in hospital.
22. Mr D moved to the care home and settled well, although the care home reported he was “very confused”. The Council agreed to continue to fund a day centre for Mr D “during the 6 week assessment period” to provide continuity for him until his long term care needs were determined.
23. Records show that Mr D’s condition deteriorated during May 2019. He became more confused, became incontinent and the care home reported concerns about some of his behaviours, which required additional supervision by staff. His condition continued to decline, which the care home considered was a progression of his dementia, and in mid June it was agreed he should move to the EMI unit.
24. On 1 July 2019, officer 1 met Mrs X, who agreed Mr D should remain in the care home long term. Mrs X asked about CHC funding, which was explored but Mr D did not meet the criteria for this.
25. Also on 1 July, officer 1 sent an email to the family setting out the care costs, which were £735 per week for those residents paying their own costs in full. The Council did not carry out a full financial assessment because Mrs X confirmed Mr D had capital in excess of the £23,250 upper capital limit and would therefore need to pay his care fees in full. The fees were the same throughout the period under investigation and did not increase when Mr D moved to the EMI unit.

My findings

26. In April 2019, the trusted assessor decided it was not safe for Mr D to return home due to his dementia and recommended transitional care to determine his long term needs. The Council clearly kept open the option of him returning home, including continuing to fund his day care for the six week assessment period. Mrs X says she understood the six weeks was for assessment and there would be no charge. All this would suggest it was intermediate care, which the Council should not charge for during the first six weeks.
27. Other records, however, such as the assessment by the care home manager, indicate he was unlikely to be able to return home and would instead need more than basic residential care. Council records show Mrs X was aware of this, although she preferred the residential unit.
28. On the balance of probabilities, based on the information available in early May when Mr D moved to the care home, it was necessary for Mr D to go into a care home and it was unlikely he would be able to return home. On this basis, the Council was entitled to charge for the care.
29. Having said that, the Council acted inconsistently in continuing the day care funding and provided misleading information to Mrs X about the nature of the placement. This was fault.
30. In addition, I have seen no record to show the Council gave her any advice or information about the costs of the care. This was further fault.
31. This meant Mrs X did not know Mr D would have to pay for the costs of his care for the first six weeks and did not know what the weekly costs would be.
32. The Council, in response to a formal complaint, accepted it had not provided all relevant information in this period and waived the charges for one week. In my view, this was not sufficient, and it should waive a further one week of charges.
33. In the event, Mr D’s condition deteriorated and by the end of the six week period he had moved to the EMI unit. Mrs X has not disputed the care costs from the end of the six week assessment period. Mrs X did not pay the care costs for the first six weeks on behalf of her father and £3,675.00 remains outstanding, after the Council applied a credit note for one week.

Agreed action

34. The Council will, within one month of the date of the final decision:
• apologise for its failure to provide adequate information about the nature of Mr D’s placement and the likely costs involved; and
• reduce the outstanding debt by £735.00, which represents one week’s care costs. For the avoidance of doubt, this is in addition to the week it has already waived.
35. The Council will, within three months of the date of the final decision, review its processes to ensure that all relevant staff are aware of the need to provide clear information about the nature of placements and the likely costs of care.

Back to top

Final decision

36. I have completed my investigation. I found fault leading to personal injustice. I recommended action to remedy the injustice and prevent recurrence of the fault.

Back to top

Investigator's decision on behalf of the Ombudsman