Summary: Mr D complained about incorrect advice the Council gave his mother about emergency COVID-19 charging rules. The Council said it would fund a respite placement for his father. It later realised this was wrong advice but did not honour its promise. It also did not stop the placement when his father left the care home. We have decided there is evidence of fault causing distress. But we cannot recommend the Council waives all the fees.

The complaint

1. The complainant, whom I shall refer to as Mr D, complains on behalf of his mother (Mrs E). They complain the Council:
• unilaterally altered an agreement made with Mrs E that it would pay the fees for her late husband’s (Mr E) stay in respite care. The agreement was made when the Council misunderstood emergency COVID-19 funding rules;
• charged Mrs E for the respite placement for a period after Mr E had been admitted to hospital.
2. Mr D says the Council’s mistake about the fees caused Mrs E a great deal of distress. Their view is the Council should have “the integrity to honour its original agreement to fully fund [the] respite care”.

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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’. 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)
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)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr D;
• made enquiries of the Council and considered its response;
• spoken to Mr D;
• sent my draft decision to Mr D and the Council and invited their comments.

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What I found

Legal and administrative background

Charging for council funded residential care at the start of the COVID-19 pandemic

6. The government publishes a Hospital Discharge Service: Policy and Operating Model for use by NHS and social care staff. The policy says its scope does not include mental health inpatient services.
7. In March 2020, the government published COVID-19 Hospital Discharge Service Requirements. This set out some changes to the hospital discharge policy and operating model during the pandemic. This included changes to funding. Relevant to this complaint was the following:

“The Government has agreed to fully fund the cost of new or extended out-of-hospital health and social care support packages, referred to in this guidance, for people being discharged from hospital or who would otherwise be admitted into it for a limited time, to enable quick and safe discharge and more generally reduce pressure on acute services.”

The Council’s “SW Residential Charging Leaflet”

8. The Council has sent me a leaflet it gives to service users in Council arranged residential care. This explains the Council’s charging policy. The leaflet says:

“Will I have to pay the charges if I go away on holiday or I am in hospital?

Yes. Everyone has to continue paying for their accommodation if they are away from their care home for any period of time.”

What happened

Background

9. Mrs E lived with her husband Mr E. Mr E had a diagnosis of Alzheimer’s disease. Mrs E was his main carer, with no home care in place. The Council says Mr E had had an earlier period of respite stay at the end of 2019. Before the pandemic meant the day centre closed, Mr E was attending a day centre twice a week. This gave Mrs E a break from her caring duties.

Mr E’s move to respite care and the incorrect advice

10. From the start of the COVID-19 pandemic, Mr and Mrs E were shielding. In June 2020 Mrs E asked the Council for an assessment for emergency respite care. Mrs E explained she felt she was “at breaking point”. One of the issues affecting Mrs E’s ability to care for Mr E was that he had recently had a fall. Mrs E had not been able to get Mr E back up again. The Council’s notes say Mrs E’s view was that, if the respite stay worked well, she would consider a permanent placement.
11. The Council carried out its assessment at the end of June. The Council’s record of the assessment notes Mr E’s care needs. It does not note any physical disabilities or pressing need for medical care. The Council agreed to help Mrs E find respite care. Its case notes say:

“[Mrs E]…has been advised and will be sent out the NHS Covid-19 funding letter which will initially cover the costs of Mr [E]'s care until this funding has been withdrawn and normal residential care charges will apply - a financial assessment will take place to determine Mr E’s contribution.”

12. On 11 July, Mr E moved to a care home for an initial six week respite placement. On 13 July the Council sent Mrs E a letter about the funding for the respite. It set out the emergency COVID-19 funding arrangements. The letter said:

“This letter confirms the current arrangements for funding your package of care under the emergency arrangements put in place in response to the Covid-19 Pandemic. … Any care provided during this emergency period … is arranged by the local authority and provided free of charge for a period of time to support your recovery…”

13. On 15 July the Council’s social worker contacted a manager, after she had been advised Mr E’s placement was not covered by the emergency COVID-19 funding rules. The social worker advised:

• “the issue … is Mrs [E] could have potentially had Mr [E] admitted to hospital and he would have then been deemed eligible for this funding, but because we became involved she did not do this as she knew we were planning/finding respite for him…”
• “I think I may have misunderstood [the rules] ... I am not sure myself now the more I think about the situation the more complicated the details become”.

14. The manager advised that Mr E was not eligible for the emergency funding. The social worker contacted Mrs E to advise of the error in advice about the funding. She said she would send out a complaint leaflet. And that the Council might refund the charges she had paid from 11 to 15 July.
15. Mr D describes Mrs E as being then “at her wits end”. She was not physically or mentally able to do anything for days after the Council contacted her. It took several days for the message to feed through to him and for them to realise what the Council was saying.

Mr E’s move to hospital

16. Mr E’s initial stay at the care home was for six weeks, with a view to an assessment for a longer term stay. But on 11 August the care provider arranged for Mr E to be admitted to hospital, as he had pneumonia.
17. The care provider did not advise the Council of Mr E’s move. On 17 August its social worker contacted the care home to arrange a review. The care home told the social worker Mr E was in hospital.
18. The social worker contacted Mrs E. They discussed how Mr E was very unwell and getting worse. The social worker advised Mrs E she would be involved in planning Mr E’s discharge, when the time was right – the hospital would need to tell her Mr E was medically fit for discharge back to the care home.
19. On 28 August the social worker contacted the hospital and discussed Mr E’s discharge planning. A nurse advised it needed to reassess Mr E first (planned for 1 September). The social worker spoke to Mrs E after this to discuss the plan.
20. The Council says on 1 September, after the hospital’s assessment, it established the bed in the care home would not be a suitable place for Mr E to return to. So it closed his placement there.

The complaint

21. Mr D first complained to the Council at the end of August 2020. His view was the Council had a duty of care to meet all of Mr E’s care home costs. And that its 13 July letter was a legally binding contract. The Council responded at the end of September. It noted it had reduced Mrs E’s bill by £158.87 for the first four days of respite: the period before it advised Mrs E of its error. It also apologised.
22. Mr D complained to the Ombudsman. The Council’s response to my enquiries said:
• if somebody was identified with a need to go to hospital, respite would not be an appropriate alternative;
• if somebody was stable enough that respite was suitable, then hospital would not be the right place for them; but
• it acknowledged that hospital admissions sometimes did happen when there were no available respite beds and the person would be at risk at home.

Analysis

23. The Council has accepted fault in the advice it gave Mrs E. I agree. The Council’s officers seem to have not correctly understood who the COVID-19 funding rules were for. There is no mention in the Council’s records of any reason Mr E might need hospital admission. And his care needs arising from his Alzheimer’s disease was not a route to the funding (see paragraph 6).
24. Mr D says the Council had both a duty of care and a legally binding reason to fund all the care, once it had agreed to do this. We cannot make decisions on whether Mr D is right about this. That would need a court to adjudicate on the basis of contract law.
25. Mr D also says the injustice to Mrs E was that she might have considered having Mr E admitted to hospital, but for the Council’s advice. The Council’s social worker provides some support for that assertion (see paragraph 13
26. I assume this refers to para 13? We have not said it was an email.
). But there was a respite placement available and no clinical or acute reason why Mr E needed hospital admission. So, on the balance of probabilities, it would not have been appropriate for Mr E to go to hospital – respite was the correct option. This would have been even more so during the early stages of the COVID-19 pandemic.
27. Considering the above, I cannot say that, but for the fault, Mrs E might have not had care home fees. But Mrs E was caused some distress by the wrong advice. That is an injustice.
28. With the ending of the placement, I accept the Council’s explanation that it ended the placement when it became clear Mr E would not be able to go back to the care home. Its records support this assertion. Until then, as the Council’s policy says, Mrs E would have been responsible for the care home fees, to keep the bed available (see paragraph 8). So I cannot uphold this part of the complaint.

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Agreed action

29. The Council has already reduced part of the fees for the first four days of Mr E’s stay. It has also apologised. I recommended, as a symbolic recognition of the distress the faults led to, it reduced the amount Mrs E owes by an additional £150 within a month of my final decision. The Council agreed to this recommendation.

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Final decision

30. I uphold the complaint, because of fault by the Council. It has agreed to my recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman