Essex County Council (21 010 309)

Category : Adult care services > Charging

Decision : Upheld

Decision date : 19 Apr 2022

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to clearly communicate or respond properly to his queries about the payment arrangements for his late mother, Mrs Y’s care. The Council was at fault. There were errors in communication around Mrs Y’s finances, delays in responding to his complaint, and it failed to keep Mr X updated about Mrs Y’s care. The Council has agreed to apologise and pay Mr X £200 to acknowledge the uncertainty and frustration this caused. It has agreed to review its procedures to prevent a recurrence of the faults.

The complaint

  1. Mr X complained the Council failed to clearly communicate or respond properly to his queries about the payment arrangements for his late mother, Mrs Y’s care. It also failed to respond to his request for updates about her care and occupational therapy referrals. This caused him frustration and time and trouble.

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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 considered the information provided by Mr X and have discussed the complaint with him on the telephone. I have considered the Council’s response to my enquiries.
  2. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered the comments I received in reaching a final decision.

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What I found

Charging for Care

  1. 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.
  2. 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.
  3. The Care and Support Statutory Guidance sets out that a person with more in capital than the upper capital limit can ask the council to arrange their care and support for them. Where the person’s needs are to be met by a care home placement, the council may choose to meet those needs and arrange the care but is not required to do so.
  4. During the COVID-19 pandemic, the Government allocated additional funding for NHS and social care discharge support. The aim of the 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.

What happened

  1. Mrs Y lived alone in a flat in a sheltered housing complex. She received a home care package of support. Mr X has power of attorney for Mrs Y’s finances and health and welfare. In March 2021 Mrs Y had a fall which resulted in a hospital admission. In hospital the Occupational Therapist (OT) recommended Mrs Y was discharged to a residential home for short term therapy and Mrs Y was discharged to the care home later that week. The care home placement was funded by the NHS using COVID-19 funding.
  2. In mid-April the Council telephoned Mr X and completed a financial assessment for Mrs Y. The financial assessment team then wrote to Mr X. The letter titled ‘charges for your care services’ set out Mrs Y was required to pay the full cost of her care. It stated ‘you accept that you must pay the charge and make regular and prompt payments for the services you receive’. It said ‘a direct debit form has also been enclosed for completion and return to assist you with the payment of your ECC invoices’. Mr X completed and returned the form.
  3. An OT contacted Mr X. They noted Mr X discussed his concerns and they advised him they would report on their assessment and his views would be important.
  4. The OT assessed Mrs Y in the care home. They noted her balance was diminished and she needed two people to assist her walking with a walking frame. The OT considered Mrs Y may need two carers, night support plus additional equipment to support her at home. They found Mrs Y was not distressed at being in the care home and the domiciliary care costs may outweigh the residential care costs. A physiotherapist also assessed Mrs Y.
  5. Mr X telephoned the Council and requested that it managed and invoiced Mrs Y for her care. The community support worker sought advice on whether this was possible. They were advised that as Mrs Y was a self-funder there would need to be a direct contract between her and the care home.
  6. In a further call Mr X advised the community support worker he was looking to extend Mrs Y’s stay at the care home but then was considering finding an alternative home. The officer emailed Mr Y and said he would need to make a direct contract with the home.
  7. A community support worker held a virtual meeting with Mrs Y later that month to review her support plan before the placement was due to end. They took into account the OT and physiotherapist reports. The social worker noted Mrs Y required support with washing and dressing, personal care, food, nutrition and hydration. They noted the possible risk of Mrs Y getting up during the night and her balance issues. Mrs Y reported she was happy to stay at the care home.
  8. The community support worker noted the Council had carried out a financial assessment and she had over the upper capital limit. They noted Mrs X was assessed as full cost and would be privately funding her placement.
  9. In early May Mr X emailed the community support worker and asked for an update on any meetings that had been held regarding Mrs Y’s welfare. Mr X said he had left a message for the OT whom he had last spoken to in mid-April and was particularly anxious to know if referrals were made regarding Mrs Y’s hearing and balance. Mr X said he believed Mrs Y was settled but wanted an expert opinion on whether the care home could provide for her needs. Mr X said the OT has previously seemed confident Mrs Y would be fit enough to return to her flat at some stage but Mr X had worries about her safety.
  10. The community support worker noted they spoke to Mr X although there were no details of what was discussed. They noted they had emailed the OT and asked that they phone him. The OT responded to the community support worker and advised that for hearing referrals the care home should refer Mrs Y to her GP.
  11. In late May 2021 Mr X called the Council to query if Mrs Y’s care was provided via the Council. He said the care home had asked him to pay her care costs but he had completed a Council direct debit mandate the previous month. He followed this up with an email in early June. Mr X said he had contacted the financial assessment service who confirmed they had received his direct debit mandate which was passed to the payments section. Mr X rang the payments section who advised it was held up as it was awaiting information from social services. Mr X said he understood he had an agreement with the Council in respect of payments for Mrs Y’s residential care. Mr X was also unhappy he had not had any update around any best interest meetings or any further update since he spoke to the OT in April. He said he had expected confirmation of what was the best plan for Mrs Y and whether referrals were made regarding her hearing and balance. Mr X explained he was unwell and due to his health conditions he could not travel to deal directly with Mrs Y’s affairs and sought help from the Council in resolving the issues.
  12. The community support worker sought advice from colleagues on the way forward. They noted Mr X had asked to stay under the Council to manage the payments. They noted the financial assessment team advised it had carried out a temporary assessment mid-April which was covered by the NHS funding. It then carried out a further one later that month which confirmed Mrs Y was self-funding.
  13. Mr X emailed the community support worker again. He said he had spoken to a senior OT who was looking into a safeguarding incident regarding Mrs Y. The senior OT had explained the different payment options included payments being made to the Council which was his preferred option. The senior OT said Adult Social Care needed to draw up a contract. If the care home would not accept payment via the Council he would have to consider the option of a different care home which would accept payment via the Council. Mr X again sought reassurance Mrs Ys needs could be met by the care home and requested feedback from any meetings held regarding her needs and welfare.
  14. In early June a senior social worker responded to Mr X. They explained Mrs Y was funded by the NHS until late April 2021. They said the Council completed a review which concluded Mrs Y required 24 hour care in a residential placement. They said a financial assessment was completed which found Mrs Y had over the upper financial threshold. As such, the Council did not have a duty to meet her needs and Mrs Y or Mr X needed to enter into a private contract with the care home. They quoted the relevant Care and Support Statutory Guidance. They told Mr X to speak to the senior OT as to whether Mrs Y’s needs could continue to be met by the placement. They advised Mr X to speak to the care home manager to agree and sign a contract and to contact the Council again when her assets had reduced to near the upper financial threshold.
  15. Mr X was unhappy with the response and responded to the senior social worker by email. He referred to the financial assessment team’s letter of mid-April and the direct debit mandate he completed at that time. Mr X considered in the circumstances, and given his own health issues, the Council was being unreasonable in not exercising its discretion. He was also unhappy about the lack of feedback relating to Mrs Y’s welfare. Mr X said he was not involved in the review and was not advised of the outcome until he received the senior social worker’s email. Mr X was not objecting to paying but considered the Council should take responsibility for dealing with the care home. He asked the Council to reconsider.
  16. In late June 2021 the community care worker sent Mr X a copy of Mrs Y’s support plan from the late April review meeting.

Mr X’s complaint

  1. Mr X complained to his councillor in July 2021 as he had not received a response to his email to the senior social worker.
  2. The Council responded to Mr X’s complaint in August 2021. It said Mrs Y was in a care home and had more capital than the upper financial limit. The Council could choose to meet needs and arrange care but had decided not to because Mrs Y had the capacity to make decisions in relation to her care and support arrangements. If she no longer had capacity Mr X could act on her behalf. It accepted communication with Mr X had not always been clear and apologised. It referred to the financial assessment letter and to Mr X’s conversation with the senior OT and said it would remind staff of the importance of providing clear advice on financial matters including directing people to the relevant information on the Council’s website.
  3. It said Mr X was invited to the April review meeting but was unable to attend. It said the OT had contacted Mr X after the meeting to discuss the outcome. It said Mrs Y had the capacity to make the decision to remain at the care home and so no best interests decision was required. It noted Mr X had wanted to discuss whether the placement was suitable with the OT and issues about balance and hearing loss. It apologised that the OT had not responded.
  4. Mr X remained unhappy and sent two letters to the Council. When he did not receive a response he complained again via his councillor. The Council sent a final complaint response in late September 2021. It apologised for not responding to Mr X’s letters. It acknowledged mistakes were made as the finance team wrongly completed a financial assessment for a temporary residential placement when Mrs Y’s stay was due to become permanent. It said in these circumstances Mrs Y should have been making her own arrangements. It noted mistakes were made in its communications with Mr X about the Council’s position on arranging care in such circumstances, which caused unnecessary confusion.
  5. The OT telephoned Mr X in late September 2021 and apologised. They advised Mr X to ask the care home to contact the GP about Mrs Y’s hearing. They suggested using an internet device so Mr X could email Mrs Y. A social worker also updated Mr X and said Mrs Y seemed settled in the home and was happy with the staff. They also advised him the care home had given Mrs Y an amplifier to assist with her hearing.
  6. Mr X emailed the Council again in early October. He explained that given the Council’s April letter he had expected the Council to arrange the placement and directly pay the care home until an agreed date when he and Mrs Y would take over. He said the finance team had never stated the agreement was an error. Mr X said when the OT spoke to him in April 2021 they discussed equipment to enable Mrs Y to return home. He said the decision that Mrs Y’s stay became permanent was never communicated to him until he received an updated support plan in late June 2021.
  7. The Council responded to Mr X’s further points in early November 2021. It noted the support plan was not sent to Mr X until late June 2021. It said as a goodwill gesture it would provide funding to the care home for the period up to 19 August 2021.
  8. Mr X responded to advise Mrs Y had died earlier in October 2021. He sought clarification about the Council’s statement regarding ‘provide funding up to 19 August 2021’ as he understood Mrs X was to fully fund her care. The Council responded and apologised if the earlier communication was unclear. It said ‘the proposal is that ASC is agreeing to pay the provider for the period in question, but ECC will not be funding the care as this will be recharged against your mother’s estate’.
  9. Mr X remained unhappy and refused the Council’s offer as this proposal would have complicated matters meaning the estate would need to pay a sum to the care home and a sum to the Council. The estate has since paid the care home bill in full.

Findings

  1. When the community support worker reviewed Mrs Y’s placement and concluded the placement should be permanent, there is no evidence they discussed it with Mr X. The OT spoke to Mr X, who gave his views, but at the time no decision had been reached on making the placement permanent. Mr X was listed as Mrs Y’s next of kin but was not clearly advised of the outcome of the review. Mr X was not made aware the placement was permanent until the senior social worker emailed him in early June and he was not provided with a copy of Mrs Y’s care and support plan until later that month. This was fault.
  2. Mr X repeatedly sought assurance that the care home was meeting Mrs Y’s needs and raised concerns about her hearing and balance. The Council did not respond to his concerns until late September 2021. This was fault. These faults left Mr X with uncertainty over the status of Mrs Y’s placement and whether Mrs Y was being properly cared for.
  3. The Council was at fault when it completed a financial assessment for a temporary placement and sent Mr X a direct debit mandate when her residential placement became permanent. The Council was also at fault when it failed to write to Mr X and to clearly explain that once Mrs Y’s residential placement became permanent it had no obligation to be involved in her funding arrangements as she had over the upper capital limit. When Mr X queried what was happening directly with the finance team it suggested things were held up by ASC. Neither ASC nor the finance team made it clear to Mr X that the Council was not responsible for handling Mrs Y’s care fees. These faults raised Mr X’s expectations that the Council would handle the financial arrangements with the care home and caused further confusion.
  4. Mr X has his own health concerns and this, in conjunction with the COVID-19 pandemic, meant Mr X was not able to visit Mrs Y. Mr X therefore sought the Council’s assistance in dealing with Mrs Y’s finances. The Council failed to properly address Mr X’s concerns and to consider whether it would pay the care home on his behalf. When it agreed to do so, following his complaint, it only offered to do so for a limited period. This was fault.
  5. The Council delayed responding to Mr X’s complaint. It then made an unclear offer as a ‘goodwill gesture’ which implied the Council would pay some of the care costs up to 19 August. It later clarified it would pay these to the care home which it would then reclaim from the estate. This added to Mr X’s confusion and frustration. This was fault.

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Agreed action

  1. Within one month of the final decision the Council has agreed to apologise to Mr X and pay him £200 to acknowledge the uncertainty and frustration caused by its communication errors and for the delays in responding to his complaint.
  2. Within two months of the final decision the Council has agreed to:
    • Review its procedures to ensure it confirms in writing the Council’s position when a care home resident is required to pay a care home direct and the Council’s involvement in paying for care has ended.
    • Review its procedures to ensure it properly considers whether to exercise its discretion when a resident of a care home or their representative is a self funder and requests the Council’s assistance with arranging their care. It should confirm its decision in writing.
    • Remind relevant staff that if an adult requests for their next of kin to be involved and updated on the outcome of a review/needs assessment, and there is no reason to doubt their capacity, this should be done in a timely manner.

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Final decision

  1. I have completed my investigation. There was evidence of fault causing injustice which the Council has agreed to remedy

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Investigator's decision on behalf of the Ombudsman

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