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Wiltshire Council (21 005 541)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 07 Apr 2022

The Ombudsman's final decision:

Summary: Mr X complained on behalf of his father, Mr P, that the Council did not carry out a timely assessment of Mr P’s care needs following hospital discharge. There was also poor communication with his family about a financial assessment and changes to funding for his care package. The Council was at fault. It has already reimbursed Mr P for the care charges he paid. It has agreed to make separate payments to Mr P and Mrs X to recognise their distress and inconvenience.

The complaint

  1. Mr X made this complaint on behalf of his father, whom I shall call Mr P. Mr X has Lasting Power of Attorney for health and welfare for Mr P. Mr X gave consent for his wife, Mrs X, to liaise with us about this complaint.
  2. Mr X complained about the Council’s failure to carry out a timely assessment of Mr P’s care needs and to ensure he received adequate support following his discharge from hospital in 2020. The Council gave the family incorrect information about Mr P’s entitlement to financial assistance and wrongly stopped funding his care from July 2020. There was also a failure to communicate effectively with family members and answer their enquiries.
  3. Mr & Mrs X say Mr P suffered avoidable stress and worried about how he would fund his future care. Mrs X was put to considerable time and trouble in pursuing her complaint and liaising with the Council to point out the errors and put them right.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I have spoken to Mrs X and considered all the information she provided. I considered the Council’s response to my enquiries and relevant documents from Mr P’s social care records.
  2. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal background

  1. The Government guidance relevant to hospital discharges in England during the period of this complaint is “COVID-19 Hospital Discharge Service Requirements”, which was published on 19 March 2020 and withdrawn on 25 August 2020. It said patients had to be discharged from hospital as soon as it was clinically safe to do so. It covered the cost of restarting care packages that were in place before the person was admitted to hospital.
  2. The guidance also:
    • said the NHS will fully fund the cost of new or extended social care support for a limited time to relieve the pressure on hospitals;
    • introduced a “discharge to assess” (DTA) model consisting of four “pathways” (0-3). Pathway 1 was for people who could be discharged home with support from health and/or social care.
  3. On 21 August 2020 the government issued revised guidance on hospital discharge. For people who were discharged from hospital between 19 March 2020 and 31 August 2020 with a care package, it said health, care or financial assessments for longer-term care needs should be carried out as soon as practicable. The cost of care for those awaiting an assessment would be met meanwhile from a ringfenced fund.
  4. Reablement support services are for people after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help someone preserve or regain the ability to live independently. Regulations say local authorities must not charge for the first six weeks of intermediate care or reablement services. They may charge where services are provided beyond the first six weeks, but should consider continuing providing them without charge because of the preventative benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)
  5. The Care Act 2014 requires councils to complete an assessment for any adult who appears to need care and support, regardless of whether or not it thinks the individual has eligible needs or their financial situation.
  6. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
  7. Councils must assess a person’s finances to decide what contribution they should make to the costs of their care. The Council can take a person’s capital and savings into account subject to certain conditions. A person with capital or savings over £23,250 is not entitled to any financial assistance with the costs of care.
  8. Under section 4 of the Care Act 2014, councils must provide information and advice services about care and support for everyone in their area. The Government’s Care and Support Statutory Guidance (CSSG) says that:
    • councils are responsible for ensuring that all adults including carers in their area can access information and advice about care and support;
    • this includes information about finances;
    • this is to support people to make informed choices about care and support; and
    • information must be accurate, up-to-date and clear. This means the person receiving it must be able to understand and act on it.

Mr P’s circumstances

  1. Mr P is in his eighties and lives alone at home. He has medical conditions which affect his physical health and limit his mobility. Mr P fractured a bone during a fall in April 2020. In early June 2020 Mr P was admitted to hospital with an infection. He was discharged home in mid-June.
  2. Before he went into hospital, Mr P had a self-funded home care package. Two carers called four times daily to meet his personal care needs and prepare meals and drinks.
  3. Mr & Mrs X live some distance away. They visit Mr P every week and Mrs X deals with his correspondence and manages his finances. They pick up his letters when they visit. Mr P’s other son and daughter-in-law live locally and visit every other day.

Key events in the complaint

  1. Mr P was entitled to reablement support following his discharge from hospital in June 2020. His existing care package with the care agency resumed the day after he left hospital. The Council commissioned this care and it was funded by the NHS COVID-19 hospital discharge funding stream from 17 June.
  2. An Occupational Therapist from the Council’s Reablement team visited Mr P on 8 July 2020 to assess his needs and set reablement goals. Mr & Mrs X were also present. The Occupational Therapist noted that Mr P could not manage to prepare drinks and meals and needed a care assistant to do this. He needed support from one care assistant with to dress, use the toilet and wash. She noted that Mr P wanted to reduce the level of support to a single carer. She set goals to increase his mobility and independence.
  3. Mr P’s Support Plan and care package was amended following this assessment from two carers to a single carer making four calls every day. The Occupational Therapist identified Mr P’s need for long term support through an ongoing care package. She requested a review by the local Ongoing Support team.
  4. The Council accepts Mr & Mrs X should have been informed of the outcome of the assessment at the time but that did not happen due to an oversight.
  5. On 20 July 2020 the Council sent two letters directly to Mr P. The first letter explained what would happen when the NHS stopped funding his support under the COVID-19 Hospital Discharge Service Guidance. It said the Adult Social Care Team would assess his social care needs under the Care Act 2014 when the temporary NHS funded care provision ended. It said that may lead to a change in the level of support or the agency providing the care. It also explained that if Mr P was required to contribute, or pay for, the whole cost of his care and support, that would only start when NHS funding stopped. The Council said it would inform him of the relevant date.
  6. The second letter was from the Council’s Financial Assessment & Benefits (FAB) team. It said the NHS COVID-19 funding of his care package was expected to end on 31 July. Any care provided after this date would be funded by the Council and would be chargeable under the Care Act 2014. The Council therefore needed to complete a financial assessment to decide how much Mr P had to contribute to the cost of his care. The letter asked Mr P to complete and return a financial declaration, and provide evidence to verify his income and capital, by 31 July 2020.
  7. Mrs X says that she did not see the first letter and she does not think Mr P received it. The Council accepts it sent the letters to Mr P in error. They should have been sent directly to Mrs X because the social care records noted she was the main point of contact for Mr P.
  8. Mrs X saw the financial assessment letter and contacted the FAB team to ask for more time to submit the required documents. She provided them in early August 2020.
  9. On 25 August the FAB team completed a financial assessment. Mr P’s income was relatively low. But his total savings exceeded the upper £23,250 capital limit which meant he was not entitled to financial assistance. The Council backdated the assessment to 27 July 2020.
  10. On 26 August 2020 the FAB team informed Mrs X of the outcome of the assessment. Mrs X then started to pay the care agency the full weekly cost of his care package - £418.95 – from Mr P’s savings. The weekly charge increased in April 2021.
  11. The Council says Mr P’s case should not have been referred to the FAB team in July 2020 because at that time his care package was still being funded under the NHS COVID-19 stream.
  12. The Council says the temporary NHS COVID-19 funding should have stopped on 31 July 2020 after Mr P received six weeks of free reablement care. However that did not happen. My understanding is that the Ongoing Support team did not act on the referral made by the Occupational Therapist until February 2021. And as Mr P’s needs for long term care and support had not been assessed, the NHS COVID-19 was due to continue in accordance with the August 2020 guidance summarised in paragraph 10.
  13. The Council says Mr P’s case should have been reviewed by the Ongoing Support team within 12 weeks. Due to an error, and changes in working processes introduced during the pandemic, that review did not happen.
  14. It was not until early February 2021 that a social care practitioner in the Ongoing Support Team contacted Mrs X about reviewing Mr P’s needs. She initially said she would complete a Care Act assessment. However when Mrs X explained that Mr P had savings above the upper capital limit, and had been self-funding his care, the practitioner wrongly cancelled the assessment. She then closed Mr P’s case on 3 March 2021.
  15. At no time did Mrs X receive any communication from the Council to confirm the date when the NHS COVID-19 funding would end. That was contrary to the assurance given in the first letter the Council sent on 20 July 2020. It was only when she queried an invoice from the care agency showing an increased charge in April 2021, that this came to light.  
  16. The Council acknowledged that the social care practitioner wrongly closed the case in March. A person who self-funds their care is entitled to a Care Act needs assessment.
  17. The Council says there is no clear rationale why Mr P’s NHS COVID-19 funding continued after 31 July 2020 as it should have ended then. It says several other customers who received COVID-19 funding became self-funding from 19 July 2020. It says this is the only case where the funding continued.
  18. In May 2021 the care agency contacted the Council to report that Mr P’s care and support needs had increased. Mrs X also lodged a complaint with the Council in mid-May 2021. The Council arranged for a social worker and Occupational Therapist in the Ongoing Support team to make a joint visit Mr P to start a new needs assessment. They visited Mr P on 28 May without giving prior notice to Mrs X.
  19. Mrs X says Mr P gets very stressed when unfamiliar people come to his home. Mrs X reported her concerns to the Council. A manager found Mrs X’s mobile number had not been recorded correctly on the front screen of Mr P’s case records so staff had not contacted her. The manager apologised for this error. Mr & Mrs X were invited to meet Mr P’s social worker on 4 June and the needs assessment was finalised in July 2021.
  20. The Council refunded £10,174.50 to Mr P on 14 May 2021. This covered the care charges he paid from 15 July 2020 until 3 March 2021.
  21. Mrs X complained to us in mid-July 2021 so our investigation does not consider the Council’s actions since then. Mrs X is satisfied that the Council has now refunded Mr P’s care charges. But she is convinced the Council would not have identified this significant error, and made the refund, if she had not contacted them in April 2021 to express concern about the increased invoice for care charges. Mr P knew he was using his savings to pay the care agency charges and they were rapidly decreasing. Mrs X says he was very anxious about how he would meet his future care costs.
  22. Mrs X also says she was put to the time and trouble of corresponding with the Council to raise her concerns and make a formal complaint. She considers the Council’s communication with her was poor and it did not involve her fully in the care assessment and planning process.
  23. In response to my enquiries, the Council offered to pay £200 to acknowledge Mr P’s distress and £100 to Mrs X for her time and trouble.

The Council’s response

  1. The Council accepts it made several errors in handling the case and it has apologised to Mrs X. It says it has taken the following steps:
    • Updated Mr P’s records to ensure they have the correct contact details for Mrs X and noted that all correspondence should be sent to her;
    • Reminded staff to check and record customers’ preferred communication methods;
    • Issued guidance to all staff reminding them that Care Act needs assessments must be offered to any person who appears to need care and support regardless of their financial position;
    • Undertaken a review which confirmed this was an isolated case – it found no other unresolved cases where NHS COVID-19 funding had continued due to delay in arranging a Care Act assessment.

My analysis

  1. Adult social care services were working under extreme pressure in the COVID-19 pandemic. Government guidance on hospital discharge changed over time, services had to be reconfigured and working processes had to adapt quickly. However the Council made a series of errors in handling Mr P’s case:
    • it sent important letters to Mr P in July 2020 about changes to funding which should have been sent directly to Mrs X - she was named in the records as the main contact for Mr P and she managed his finances;
    • the referral to the Financial Assessment & Benefits team in July 2020 should not have been made because Mr P’s COVID-19 NHS funding had not ended pending the Care Act assessment of his long term care needs;
    • the Reablement team did not inform Mrs X about the outcome of the assessment and send her the amended Support Plan in July 2020;
    • the Occupational Therapist’s referral in July 2020 to the Ongoing Support team for a review of Mr P’s long-term care needs was not acted on until February 2021. There should have been a planned review within 12 weeks of the Reablement team ending its involvement;
    • the social care practitioner wrongly cancelled the referral when the case was finally picked up in February 2021 in the mistaken belief that self-funders are not entitled to an assessment;
    • Mrs X was not informed at the time that NHS COVID-19 funding stopped in early March 2021 when the social care practitioner closed Mr P’s case - she only found this out when she made enquiries after getting the care agency’s invoice the following month;
    • Mr P’s Care Act assessment did not start until late May 2021 and it only happened then because Mrs X made a complaint;
    • Mrs X was not informed in advance about the assessment visit made to Mr P in May 2021 because her contact number was wrongly recorded in Mr P’s records.
  2. Mr P’s NHS COVID-19 funding may well have ended sooner if there had been no delay in carrying out the Care Act assessment. This NHS funding stream was not intended to provide long term funding for care needs following hospital discharge. However Mr P’s funding continued for several months due to the Ongoing Support team’s failure to pick up and act on the referral from the Reablement team.
  3. These errors had an impact on Mr P and Mrs X. The main injustice was that Mr P paid the care charges from his savings for several months when the Council was still receiving NHS COVID-19 funding for his care package. Mr P had sufficient funds to pay the care agency so his needs were met. The Council refunded the care charges in May 2021 and Mrs X is satisfied this is settled.
  4. Mr P lost interest on his savings while he was paying the care charges between August 2020 and March 2021. However the amount was negligible due to low interest rates. However Mr P knew his savings were decreasing and he was anxious about whether he would be able to pay for future care. Mrs X said he sometimes panicked and called her in the night to ask if he had enough money to meet future care charges. She did her best to put his mind at rest but he still worried. A modest payment to recognise Mr P’s distress is justified in these circumstances.
  5. Mrs X corresponded with the Council and made a formal complaint before it identified its errors and put them right. She justifiably feels the Council did not communicate properly with her about Mr P’s assessments and it did not provide timely and accurate information about the end date for NHS COVID-19 funding. I do not consider the Council’s communication with her met the standards required by section 4 of the Care Act 2014. This also merits a modest payment for her inconvenience and time and trouble.

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Agreed action

  1. Within one month of my final decision, the Council will pay:
    • Mr P £300 for distress;
    • Mrs X £200 for its poor communication with her and the inconvenience this caused.
  2. I did not make any recommendations for service improvements. I have taken into account that the Council has already identified what went wrong and taken appropriate remedial action. Its review of other cases confirmed this was an isolated case and other service-users with NHS COVID-19 funding were not similarly affected. The government guidance on hospital discharge which applied in this period has been withdrawn.

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Final decision

  1. I have completed the investigation and found Mr P and Mrs X suffered injustice due to the Council’s fault. The Council has already apologised and refunded Mr P’s care charges for the relevant period. The Council has agreed to provide a suitable financial remedy for distress and time and trouble.

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Investigator's decision on behalf of the Ombudsman

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