The Ombudsman's final decision:
Summary: Mrs X complained the Council failed to advise her that COVID-19 NHS funding for her mother, Mrs Y’s care had ended, or that it had completed an assessment of her needs. The Council was at fault as it did not share a copy of the assessment with Mrs X and delayed telling her the funding had ended. This meant Mrs Y avoidably incurred care home fees. If the Council had given clear, timely information she would have moved in with Mrs X sooner. The Council has agreed to apologise to Mrs X and to refund some of the care fees to Mrs Y.
- Mrs X complained the Council failed to advise her when an assessment of her mother, Mrs Y’s, care needs was completed, which she was waiting for to determine whether she could care for Mrs Y at home, and failed to tell her when COVID-19 NHS care home funding would end.
- This caused Mrs Y a financial loss in having to pay an unexpected care home bill as Mrs X would have taken her home to live with her sooner had she known this was a possibility.
The Ombudsman’s role and powers
- 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)
- 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.
- 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 have considered the information provided by Mrs X and have discussed the complaint with her on the phone. I have considered the information provided by the Council in response to our initial enquiries about the complaint.
- I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I receive in reaching a final decision.
What I found
Assessment and Charging
- 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. Where local authorities have determined that a person has any eligible needs, they must meet these needs.
- 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.
- The rules state that people who have savings 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 March and April 2020, the Government allocated additional funding for NHS and social care discharge support. The aim of the funding (which I refer to as COVID-19 funding) was to free up NHS capacity via the rapid discharge of patients out of hospital. This was to help support the NHS during the COVID-19 pandemic.
The Ombudsman’s guidance
- We have produced guidance for councils on the principles of good administrative practice. We expect councils to be open and clear about any policies and procedures and to ensure information and any advice provided is clear, accurate and complete. The additional guidance we have produced on good administrative practice during the response to COVID-19 sets out that ‘the basis on which decisions are made and resources allocated, even under emergency conditions, should be open and transparent. Any new criteria, thresholds and timescales should be clear to service users and staff’.
- In January 2020, Mrs Y was admitted to hospital after a fall. She had some confusion. She was discharged to another hospital for rehabilitation and then discharged, in March 2020, to a care home as a short-term placement, funded by the NHS using the COVID-19 funding.
- In mid- April 2020, a social worker carried out a post-discharge review. They were unable to meet Mrs X or Mrs Y due to COVID-19 restrictions but spoke to Mrs X and the care home by telephone. They noted Mrs X felt she might move Mrs Y into her home after lockdown and she was waiting to visit to see how Mrs Y was doing. The social worker advised Mrs X they would reassess Mrs Y once the COVID-19 funding arrangements were coming to an end.
- In June 2020 the social worker noted they spoke with Mrs X about Mrs Y’s care post COVID-19 funding. They noted Mrs X was considering moving Mrs Y in with her in the long run as this is what Mrs Y had wanted. She noted Mrs Y was very happy in the home and she would await the social worker’s review at the end of June to decide on the future. She said the home had agreed to send her Mrs Y’s care plan to help her decide if she could care for her at home.
- The social worker assessed Mrs Y in late June 2020. They noted she needed support and prompting in most areas. They noted ‘current needs and her overall wellbeing are better served by this placement at this time and that a full review can be undertaken once the lockdown period is over and when fuller and more detailed assessment can be undertaken. This will enable us to explore [Mrs Y’s] views and capacity to make decisions regarding her long-term future’.
- In August 2020 the social worker noted a telephone discussion with Mrs X. They noted Mrs Y was still health funded and would not be charged until COVID-19 funding arrangements ended. Mrs X was waiting for the results of a dementia screening assessment and was still wanted to take Mrs Y home to live with her if this was feasible in the longer term.
- The social worker started an assessment of Mrs Y in late August 2020. They noted ‘this is a review of the short term placement as we come to the end of the COVID funded period and look at the longer term requirements/needs of [Mrs Y]’. The social worker noted Mrs Y was in need of 24 hour care and her needs were being met at the home and ‘to that end the placement should be made permanent now that the COVID funded period is ending’. They noted Mrs X said Mrs Y had settled well but Mrs X had agreed Mrs Y would live with her if she required it in the future. She was unsure if she could manage Mrs Y 24/7 and was still thinking it through.
- On 4 September 2020 the social worker noted ‘to review her placement as COVID funding is coming to an end’. They noted they had spoken to Mrs X and would speak with the home manager and then complete the review of the placement.
- On 21 September 2020 an officer from the Council’s finance team telephoned Mrs X. The notes of the conversation record ‘t/c to daughter [Mrs X] regarding f/a required for when covid-19 funding ceases. She informed me that mum is still over the capital limit for funding but it won’t be long till she is under. Advised her any care after covid funding end that she would be full cost and to contact when mums savings approach the £23,250 figure and apply for part funding'.
- On 28 October 2020 the Council wrote to Mrs X to advise her the COVID-19 NHS funding had ended on 8 September and so Mrs Y was required to pay the care home fees from that date. Mrs X telephoned the social worker in early November to query this. The social worker told Mrs X the COVID-19 funding ended when they reassessed Mrs Y and they had explained at the time the funding stream would change. They noted Mrs X was keen to move Mrs Y either to live with her or to a care home near where she lived. The social worker spoke to the care home and noted Mrs Y would like to live with her daughter. She was happy in the home but did ask after Mrs X and loved her daily phone call with her daughter. The social worker agreed Mrs X could liaise with the care home to make arrangements for Mrs Y to live with her.
- In early November 2020 Mrs X complained to the Council about the charges. Mrs X also spoke to an officer in the Council’s social care benefits team about the ending of the funding. She advised she would have arranged to move Mrs Y out of the care home sooner had she known the funding had stopped at the beginning of September. The officer advised they were only notified of the funding change on 23 October and wrote to Mrs X on 26 October. Mrs X also spoke to the care home who advised they were notified on 30 October that the funding had ended.
- Mrs X arranged to take Mrs Y home the following week. However, due to a further lockdown she X was unable to do so.
- The Council responded to Mrs X’s complaint in November 2020. It did not uphold the complaint. It apologised for the delay in issuing the invoice for the care charges and said this was due to the high demand for financial assessments at that time. It said the Council did not know in advance that the funding would cease nor was it given extensive warning about it ending. It said it was advised that it finished from 1 September and it chose locally to continue to fund for any additional time between this date and the date of review to try and minimise a sudden ending of funding for the individuals who were being assessed to contribute.
- A different social worker reviewed Mrs Y’s needs late in November 2020. They spoke to Mrs X who was looking to commission a private care package to support Mrs Y and had received some equipment to support Mrs Y at home. The social worker provided Mrs X with a copy of the review and care plan and Mrs Y moved in with Mrs X in early December 2020, when the lockdown was lifted.
- Mrs X remained unhappy and complained to us in December 2020.
- There is no evidence the Council told Mrs X the COVID-19 funding had ended until she received the Council's letter of 28 October. This is fault. The Council knew the funding had ended on 1 September 2020. It told Mrs X the COVID-19 NHS funding was time-limited but there is no evidence it confirmed funding had ended at the time of Mrs Y’s assessment in early September 2020. There is no evidence the Council advised Mrs X it had completed the assessment of her needs and there is no evidence she was provided with a copy of the assessment. This is fault.
- When the finance officer spoke to Mrs X on 21 September 2020, two weeks after the funding had ended, the notes still refer to discussing what would happen ‘when COVID funding ceases’ and ‘after COVID funding end’. This suggests the officer believed funding was still in place at that time and had not ended at the time of the call.
- In line with our principles of good administrative practice I would have expected the Council to provide Mrs X with appropriate and timely information about the ending of the funding which would have enabled her to make a decision about organising Mrs Y’s care sooner.
- Throughout the records it is clear Mrs X’s intention was always to move Mrs Y home to live with her, subject to Mrs X being able to manage her needs once the Council had assessed these. Due to the COVID-19 pandemic Mrs X was unable to visit Mrs Y. She was therefore reliant on the social worker’s input and the needs assessment so she could determine whether she could care for Mrs Y at home.
- On the balance of probabilities, I am satisfied if the Council had advised Mrs X earlier than 28 October that the funding was ending on 8 September, she would have moved Mrs Y home to live with her sooner. As a result of the fault Mrs Y has had to pay for care home fees she probably would not otherwise have incurred. Mrs Y remained in the care home until early December due to a further lockdown period. Although this is unfortunate, I cannot hold the Council responsible for the delays caused by the national lockdown.
- The Council has agreed, within one month of the date of this decision to:
- apologise to Mrs X for the frustration caused by its faults.
- refund Mrs Y the care home fees she paid between 8 September 2020 and 28 October 2020 when Mrs X was informed in writing the funding was ending.
- I have completed my investigation. There was evidence of fault causing injustice which the Council has agreed to remedy.
Investigator's decision on behalf of the Ombudsman