The Ombudsman's final decision:
Summary: Mr X complained the Council failed to inform him or his brother’s Care Home that his brother, Mr Z was a self-funder. The Council provided both Mr X and the Care Home with timely information about Mr Z’s status as a self-funder. It was at fault when it continued to pay Mr Z’s fees to the Care Home, but this did not cause an injustice.
- Mr X complained the Council failed to take appropriate steps to inform him and his brother’s care provider, The Orders of St John Care Trust, that his brother, Mr Z, should have funded the full cost of his care. He says the Council continued to pay the care provider’s monthly invoices until two months after Mr Z died.
- Mr X also says the care provider failed to ask him to sign a contract and told him there was no need to as the Council was paying Mr Z’s care fees.
- Mr X says that if he had known Mr Z should have funded his care, he would have requested a further Continuing Health Care (CHC) assessment. Because he did not do so, he says has been financially disadvantaged. He also says he has experienced stress because the Council continued to chase him for the outstanding amounts of money.
The Ombudsman’s role and powers
- We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
- their personal representative (if they have one), or
- someone we consider to be suitable.
(Local Government Act 1974, section 26A(2), as amended)
- We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. Part 3A covers complaints about care bought directly from a care provider by the person who needs it or by a representative, and includes care funded privately or with direct payments under a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
- In this complaint, the Council arranged and commissioned the care. Therefore, we consider the actions of the care provider as if they were the actions of the Council.
- We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
- 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)
- 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 spoke to Mr X and considered his view of his complaint.
- I made enquiries of the Council and considered the information it provided. This included a copy of Mr Z’s case files from 2017 to 2019 and complaints correspondence.
- I considered the relevant legislation. This included the Care Act 2014 and the Care and Support Statutory Guidance 2014.
- I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.
What I found
The law and statutory guidance
- 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.
- 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.
- A council’s approach to charging for care and support needs must be clear and transparent, so people know what they will be charged.
NHS funded continuing health care (CHC) and funded nursing care (FNC)
- 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).
- The first step in assessment is for a health or social care professional to complete a CHC Checklist. If the completed Checklist indicates the person may be eligible for CHC, the next step is a full multi-disciplinary assessment.
- A nurse will usually co-ordinate the multi-disciplinary assessment and complete a Decision Support Tool (DST). The DST is a record of the relevant evidence and decision-making for whether the person is eligible for either CHC or FNC.
- If someone is unhappy with the NHS decision not to award CHC or FNC, they can appeal to the relevant section of the NHS and ask for funding to be approved retrospectively.
- Mr X is Mr Z’s brother. In 2017, Mr Z’s wife died and following concerns from Mr Z’s GP and neighbours about Mr Z, the Council became involved.
- Mr Z did not want to go into a care home. Therefore, it was decided to set up a package of home care instead. In June 2017, a Council social worker visited Mr Z to carry out a financial assessment. Mr X was present. The social worker assessed Mr Z could afford to contribute £104 a week towards the costs of his care.
- In August 2017, Mr Z was admitted to hospital. At the end of August 2017, the hospital social worker requested Mr Z was discharged to either another hospital ward or a care home where he could be assessed and a decision made about whether he was eligible for CHC or FNC.
- Mr Z was discharged on 6 September 2017 to Chestnut Court Care Home for assessment. The care notes record the hospital social worker telephoned Mr X and explained why Mr Z was being assessed. The notes said “I informed him that there is no charge for the D2A [assessment] bed and it will be for two weeks initially… he will have a CHC/FNC assessment… and longer term plans will be considered”.
- Mr Z was admitted to hospital almost immediately because he had been discharged with the wrong medicine. When he was brought back by ambulance the following day, he refused to get out of the ambulance and so returned to hospital. By this stage his mental health had deteriorated and his behaviour was challenging.
- Mr Z remained in hospital until 28 September, when he was discharged back to the Care Home.
- Following a mental health assessment at the end of October 2017, Mr Z was deemed to lack mental capacity to make decisions about his finances or care. Mr X met with the social care assessor and community mental health nurse on 31 October 2017 for further assessments, including the CHC Checklist. This indicated Mr Z was not eligible for CHC or FNC.
- Everyone agreed Mr Z could not return home with a package of care but needed to remain in a residential placement. The notes recorded “Social Care Assessor explained now that all health assessments had been completed and as [Mr Z] not eligible for any NHS funding he would transfer into a respite bed which is a chargeable service and that a further… [financial] assessment may need to be completed”. The financial assessment would determine whether or not Mr Z was a self-funder.
- On 3 November, the social care assessor sent the health assessments to the CHC nurse assessor. Mr X also sent proof that he had Lasting Power of Attorney for property and affairs for Mr Z. This meant he had the legal power to make decisions on Mr Z’s behalf.
- On 4 November, Mr X emailed the social care assessor and asked if Mr Z could have another CHC assessment.
- On 15 November, the Social Care Assessor carried out another CHC Checklist with Mr X present. This indicated Mr Z might qualify for CHC or FNC and needed a DST completing.
- Throughout December 2017 to March 2018, Mr X and the social care assessor chased the NHS to complete the DST. The NHS CHC assessor carried this out on 14 March 2018. Mr X was present. The CHC nurse assessor concluded Mr Z was not eligible for CHC but was eligible for FNC which would be backdated to the date the CHC Checklist was requested.
- The social care assessor also carried out a financial assessment which determined Mr Z was a self-funder. The Council dated this from 10 March 2018. Mr X was advised to contact the Council when Mr Z’s funds became close to the upper threshold.
- On 19 March 2018, the social care assessor emailed Mr X some financial information and wrote “Please can you let me know if, after reading the information, you wish to apply for a deferred payment as I will need to make a referral to our Deferred Payment Team. Once I have written confirmation from Continuing Health Care that the Funded Nursing Care (FNC currently 155.05/week paid by NHS) has been verified I will complete a full assessment with the recommendation of 24 hour nursing dementia care at Chestnut Court. In the meantime [Mr Z] remains in respite”.
- Mr X replied on 20 March and thanked the social care assessor for the information. He said he would make enquiries and respond.
- On 17 April 2018, Mr X telephoned the social care assessor. They discussed his savings and the assessor advised Mr X that Mr Z remained above the threshold and, therefore, was a self-funder. The notes show the assessor advised Mr X to apply for certain benefits for Mr Z and to discuss the fees with the Care Home manager about the possibility of negotiating a reduced fee.
- The case notes show the social care assessor telephoned the Care Home manager on 18 April 2018 and confirmed Mr Z was a self-funder.
- On 20 April 2018, the social care assessor emailed the Care Provider who owned the Care Home and asked it to confirm whether it would continue to allow Mr Z to remain at Chestnut Court once Mr Z’s funds dropped below the threshold and he was no longer a self-funder.
- Also on 20 April 2018, the case notes record the assessor contacted Mr X to explain:
- they had spoken to the Care Provider about Mr Z’s financial position and from 12 April 2018, the arrangements for paying the care home fees would no longer be through the Council;
- the Care Home needed to set up a contract with Mr X;
- the weekly dementia rate was £1,370 inclusive of FNC;
- Mr X could try to negotiate a lower fee and should check the Care Provider would allow Mr Z to remain at the Care Home once he was no longer a self-funder;
- the FNC element would be paid directly to the Care Home; and
- Mr X would receive invoices from the Council for the period up to 11 April 2018.
Financial information provided to Mr X
- The Council provided clear advice to Mr X throughout the process. It involved him in the CHC and FNC assessments and informed him of the outcomes. It made him aware of the implications of Mr Z’s status as a self-funder. It provided advice to Mr X about the Care Home fees and what he should do when Mr Z’s funds dropped to the threshold. The financial assessment did not take place until March 2018, but the delays were not due to the Council’s actions and in any case, the Council did not begin to treat Mr Z as a self-funder until it had completed the financial assessment. The Council informed both Mr X and the Care Home that Mr Z was a self-funder. Throughout the process, the Council’s interactions with Mr X and the Care Home were clear and transparent. There was no fault in the Council’s actions.
- Mr X said the Care Home manager told him that Mr Z was Council-funded and so a contract was not required and Mr Z did not have to pay the fees. I cannot know what was said. However, the Council had clearly informed Mr X on a number of occasions that Mr Z was a self-funder and it was open to him to query the matter with the Council. I will not investigate this matter any further.
- At the point when the Council determined Mr Z was a self-funder, it informed the Care Home of this. At this point the Care Provider should have begun to directly invoice Mr X, who had power of attorney. However, the Care Home failed to inform its Head Office who therefore continued to invoice the Council. As a result, the Council continued to pay the fees instead of Mr X. Because the Council arranged and originally commissioned Mr Z’s care, although the errors were primarily made by the Care Home, it is the Council who bears responsibility for the fault.
- However, this did not cause Mr Z an injustice because he received the care he needed.
- Mr X says he was caused an injustice because the Council chased him for the outstanding fees and he has lost out on part of his inheritance. However, Mr X is left in the same financial position whether the fees were paid out of Mr Z’s funds when he was alive, or his estate after he died. And the Council was entitled to chase for money it was owed.
- Mr X also says he would have requested another CHC assessment if he had realised earlier Mr Z was a self-funder. If Mr X has evidence or believes that Mr Z would have been eligible for CHC or FNC, he can ask the NHS to consider a retrospective application. If successful, the NHS has the power to backdate the CHC or FNC award.
- The Council was at fault when it continued to pay Mr Z’s fees even though it had assessed him as a self-funder. However, this did not cause Mr Z or Mr X an injustice. Therefore, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman