Summary: Mr and Mrs B say the Council failed to provide appropriate advice and support about funding and care options in 2020, failed to carry out a continuing healthcare assessment, failed to review the case, delayed identifying a suitable home when Mrs B was in hospital, delayed responding to the complaint and failed to identify any lessons from the complaint. The Council failed to carry out a continuing healthcare assessment and failed to explain what action it had taken to address the issues identified. Procedural changes and training already taken or planned, alongside an apology and payment to Mr B is satisfactory remedy.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs B, are represented by their son. I will refer to him as Mr C. Mr and Mrs B complained the Council:
• failed to provide them with appropriate advice and support about options and funding before Mrs B went into a care home in March 2020;
• failed to carry out a continuing healthcare assessment in January 2020;
• failed to review Mrs B’s case between March 2020 and June 2021;
• delayed identifying a suitable home for Mrs B between June and August 2021 which meant she had to stay in hospital longer than necessary;
• delayed responding to the family’s complaints; and
• when responding to the complaint, failed to identify flaws in the system which means it has not learnt any lessons.
2. Mrs C says fault by the Council has resulted in a significant financial loss for Mr B and has caused the family distress.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1) and 26A(1), as amended and 34(3))
5. 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

6. As part of the investigation, I have:
• considered the complaint and Mr C's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
7. Mr C 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

What should have happened

8. Continuing health care (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a 'primary health need'. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC checklist. The threshold for meeting the CHC checklist is set low.
9. The checklist has 11 care domains broken down into three levels: A, B or C (where A represents a high level of care need, and C is a low level of care need). The outcome of the checklist depends on the number of As, Bs, and Cs identified.
10. The individual should be given reasonable notice of the intention to undertake the checklist and should normally be given the opportunity to be present at the completion of the checklist, together with any representative they may have.
11. The checklist requires practitioners to record a brief description of the need and source of evidence used to support the statements selected in each domain. This will enable evidence to be readily obtained for the purposes of the multidisciplinary team (MDT) if the person requires a full assessment of eligibility for NHS Continuing Healthcare.
12. If an individual has been screened out following completion of the checklist, they may ask the clinical commissioning group (CCG) to reconsider the checklist outcome. The CCG should give this request due consideration, taking account of all the information available, and/or including additional information from the individual or carer, though there is no obligation for the CCG to undertake a further checklist.
13. If the completed CHC checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. This assessment is completed using a decision support tool (DST). The DST is a record of the relevant evidence and decision-making. The DST should be completed within 28 days of the CHC checklist unless there are 'valid and unavoidable' reasons for it taking longer.
14. The DST makes a recommendation about whether a person is eligible for CHC or for NHS-funded nursing care, which is set at a weekly rate. The relevant CCG will then make a final decision which must uphold the recommendation of the DST in all but exceptional circumstances.
15. The Council’s continuing healthcare guidance (the guidance) says where an individual is not eligible for CHC but requires registered nursing care in a care home setting they should be eligible for NHS funded nursing care (FNC). FNC is funding provided by the NHS to homes providing nursing to support the provision of nursing care by a registered nurse. In all cases an individual should be considered for eligibility for CHC before a decision is reached about the need for FNC.
16. The guidance says a full assessment for NHS continuing healthcare is required if the checklist indicates:
• two or more domains selected in column A;
• five or more domains selected in column B or one selected in A and four in B; or
• one domain selected in column A in one of the boxes marked with a * with any number of selections in the other two columns.
17. The Council’s guidance on placing a person in residential care (res care guidance) makes clear a self funder includes someone who has approached adult social care and had an assessment which determines eligibility for 24-hour care where the person has cash savings above the threshold. In those circumstances the person has a contract directly with the residential care home. The local authority is not involved in the commissioning arrangement but this does not prevent the person requesting an assessment in future if their capital falls below the threshold for local authority support.
18. The res care guidance makes clear a self funder does not remain as an open case and there is no requirement for the Council to commission a service or request a financial assessment. It says a self funder closure letter should be generated for those cases.
19. The res care guidance says self funders will not receive an annual care and support review. The guidance makes clear though the Council has a duty of care towards self funders and, if made aware of people who receive care from residential care provider about whom there are concerns, the Council is required to provide information and protection as appropriate.

What happened

20. Mrs B had Alzheimer's and was being cared for at home by Mr B.
21. In November 2019 Mr and Mrs B's daughter in law contacted the Council to discuss long-term residential care. Mrs B was in hospital at that point. The Council completed a care act assessment. At that point though the family wanted Mrs B to remain at home with a package of care. The social worker completing the care act assessment identified the need for a CHC screen.
22. In March 2020 Mr and Mrs B’s daughter requested 24-hour care for Mrs B. The family asked for some support to find a care home and the Council found a placement. Mrs B moved into the placement at the end of March. Mr and Mrs B’s daughter asked the Council about funding options. The Council explained the capital threshold.
23. In June 2021 Mrs B’s care home contacted the Council to ask for a review as it was having difficulty managing Mrs B’s needs. The Council agreed to arrange another assessment. In the interim the care home agreed to provide one-to-one support overnight for Mrs B. The Council offered to provide the family with information about CHC funding but Mr and Mrs B’s daughter told the Council they had identified information about that over the weekend.
24. Towards the end of June Mrs B was admitted to a mental health ward. She was expected to be in hospital for a couple of weeks while her medication was adjusted. Shortly after Mrs B was admitted to hospital the care home said it would not accept Mrs B back. The family told the Council Mrs B wanted to return to the original care home. The family also told the Council they believed Mrs B was entitled to CHC funding and FNC and wanted to apply for any financial support available. The Council agreed to complete the CHC checklist. That could not take place until Mrs B was out of hospital and settled.
25. A mental health assessment at the end of June recommended an EMI placement.
26. On 5 July the transfer of care nurse from the hospital asked the Council for support with discharge planning. The social worker agreed to attend the ward to complete an assessment as Mrs B was medically fit. The social worker attended the ward later that day.
27. Between 5 July and 27 July the Council tried to identify a care home placement for Mrs B. Those attempts were unsuccessful until 27 July when a care home told the Council it had a place available. The family accepted the placement and Mrs B moved in on 31 July.
28. On 4 August Mr and Mrs B's daughter contacted the Council to tell it Mrs B was being treated in hospital for breathing difficulties, dehydration and infection. Mrs B sadly died on 8 August.
29. On 13 September the Council received a complaint letter from Mrs B’s MP, which was dated 26 July. The Council told the MP it would respond under its complaints procedure.
30. On 29 September the Council completed a retrospective CHC screen for Mrs B and concluded she did not meet the criteria for funding.
31. The Council responded to the complaint from the MP on 25 October. The Council upheld some parts of the complaint, specifically around the failure to carry out a CHC screen in January 2020. The Council said following the complaint it had reviewed the case and processes followed. The Council told Mr and Mrs B’s MP any lessons learnt or corrective actions would be delivered through supervision, training, team meetings and critical case reflection.
32. As part of the Council’s response to the Ombudsman's enquiry on this complaint it has provided details of the action it has taken or will take to address the issues that arose in this case. Those actions include:
• training in 2022/23 for social care practitioners to address the continuing healthcare pathway and processes to ensure officers are aware of their responsibilities;
• work with the clinical commissioning group to identify any system barriers and improve processes and pathways;
• making continuing healthcare training mandatory for all staff and new starters;
• briefings for social care practitioners on the importance of sending checklists following the completion of care act assessments;
• making the importance of completing checklists following the completion of care act assessments a mandatory part of the training for new starters;
• amendments to the continuing healthcare checklist section within the care act assessment to provide a yes/no drop-down and free text box on the system which requires officers to provide a rationale for not sending a checklist if applicable. Staff have been notified of that and it has been discussed at team manager meetings.

Analysis

33. I have exercised the Ombudsman’s discretion to investigate matters at the end of 2019/beginning of 2020 despite the fact that is more than 12 months before the complaint to the Ombudsman. That is because I am satisfied Mr and Mrs B and their family did not know about the availability of CHC funding until July 2021.
34. Mr C says the Council failed to provide the family with appropriate advice and support about options and funding before Mrs B moved into a care home in March 2020. Having considered the documentary evidence I note it is recorded the family made the decision to place Mrs B in residential care following a social work assessment. That social work assessment also recorded the family understood Mrs B would be a self funder. There is nothing in the documentary evidence to suggest the social worker would have understood the need to have further discussions with the family about the potential arrangements given the family were leading the discussions and the documentary evidence suggests they appeared to understand the process and the fact Mrs B had capital above the limit.
35. It is clear though the family did not properly understand that because Mrs B was a self funder the Council would retain no responsibility and would not carry out any reviews. I refer in paragraph 18 to the procedure the Council should follow when closing a file for a self funder. As part of that process the Council should write to the service user to advise them of the fact the case has been closed and that there would be no further Council involvement. I have seen no evidence the Council did that in this case. That is fault, although I do not consider it caused Mr and Mrs B a significant injustice. In those circumstances I consider an apology an appropriate remedy.
36. There is, however, an issue with discussions about continuing healthcare funding. The Council has accepted the social worker completing the assessment in December 2019 identified the need to complete a screening for continuing healthcare. I will come onto how that was managed in the next paragraph. I have seen no evidence though to suggest the Council made Mr and Mrs B or her family aware about the existence of continuing healthcare funding. Nor is there any evidence of a discussion with them about what continuing healthcare funding might involve. Failure to discuss that with the family is fault. As a result neither Mr and Mrs B nor her family understood the potential implications of a continuing healthcare assessment not taking place at that point and had no reason to prompt the Council to carry out the screening.
37. Irrespective of whether the family were aware of the existence of continuing healthcare funding though, the Council clearly was. The Council accepts it should have carried out a screening for continuing healthcare funding in January 2020 and failed to do so. That is fault. The Council says the injustice is limited as it has subsequently carried out a retrospective screening. The Council’s retrospective screening shows Mrs B would not have qualified for continuing healthcare funding. Mr C disagrees. The Council has provided the Ombudsman with a copy of the screening checklist which shows how it scored Mrs B. Mr C disagrees with the scoring in three areas. Mr C believes if the Council had scored appropriately in those three areas Mrs B would have qualified for continuing healthcare funding. Mr C also believes Mrs B would have been entitled to funding throughout the period from January 2020 onwards.
38. There is clearly a significant difference of view between the Council and Mr C about what Mrs B should have scored on the screening checklist. It is not the Ombudsman’s role to decide whether Mrs B qualified for continuing healthcare funding. I appreciate the information included in the Council’s retrospective screening is based on the assessment carried out in December 2019 and the officer’s retrospective view of Mrs B’s capacity in the various areas at that point. However, the way the Council carried out the retrospective screening in 2021, after Mrs B’s death, is different to how the screening would have been carried out in January 2020. Had the Council carried out the screening when it should have done Mr and Mrs B and her representative would have been involved in that process and been able to have an input. They may also have been able to challenge any negative decision. In those circumstances I do not consider a retrospective assessment based on limited evidence carries the same weight as a proper assessment carried out at the time.
39. I cannot speculate though about whether the outcome for Mrs B would have been different had the Council carried out the screening in January 2020. Mr C believes Mrs B would have been entitled to funding throughout the period from January 2020 onwards. However, there is clear evidence in the file that Mrs B’s health deteriorated in 2021 and this is also referred to by Mr and Mrs B’s daughter in correspondence with the Council. I am therefore not convinced a continuing healthcare screening in January 2020 would have reached the same conclusion as a screening in 2021. Nor can I reach a safe conclusion about whether Mrs B would have been assessed as entitled to continuing healthcare funding if the screening had been undertaken in 2020. In those circumstances I cannot recommend the Council fund the amount Mrs B would have received from January 2020 had she been assessed as qualifying for continuing healthcare funding, which is what Mr C is asking for.
40. I do consider though that Mr B has been caused an injustice because of the Council’s failure to carry out the screen in 2020 as he is left with uncertainty about whether the outcome would have been different. That is a significant injustice given Mr B has spent £45,000 on care for Mrs B during the period she was in a care home. To recognise that I recommended the Council apologise to Mr B and his family and pay Mr B £500 to reflect the uncertainty and time and trouble the family have had to go to pursuing the complaint. The Council has agreed to my recommendations.
41. Mr C says the Council failed to review Mrs B’s case between March 2020 and June 2021. Mr C says because the Council failed to carry out any reviews it also lost the chance to carry out an assessment for continuing healthcare funding at any point during Mrs B’s stay in the care home. I refer in paragraph 19 to the guidance the Council follows in terms of the assessment and review process. That makes clear the Council does not have any involvement in the self funder’s placement once the service user has moved in unless there are specific issues with the placement which the Council needs to consider or if the service user’s savings fall below the capital limit. So, the Council was not at fault for failing to have any further involvement in Mrs B’s case between March 2020 and June 2021 as there is no evidence of contact with the Council during that period to suggest Mrs B’s needs had changed. I cover earlier in this statement though the issue about failing to make that clear to Mr and Mrs B and failing to carry out the CHC assessment in January 2020.
42. Mr C says the Council delayed identifying a suitable home for Mrs B when she was in hospital in 2021. Mr C says due to that delay Mrs B had to stay in hospital longer than was necessary. The period Mr C is referring to is June-August 2021. Having considered the documentary evidence I have seen nothing to suggest the Council knew Mrs B was fit for discharge until 5 July 2021. I am satisfied the Council acted promptly at that point by sending a social worker to carry out an assessment the same day. I appreciate there was then delay before Mrs B moved into a new care home on 31 July. However, the evidence I have seen satisfies me the delay occurred due to the Council not being able to identify a suitable placement with places available until the end of July 2021. During the period 5-27 July I am satisfied the Council was making attempts to identify a suitable placement but was unsuccessful in those attempts. As I have found no evidence to suggest fault by the Council was responsible for Mrs B having to stay in hospital longer than she should have I have no grounds to criticise it.
43. Mr C says the Council delayed responding to the complaint the family submitted via their MP in July 2021. The evidence I have seen satisfies me although the family wrote to Mr and Mrs B’s MP on 26 July 2021 the MP did not contact the Council until 9 August 2021. It is clear from the emails provided that the MP used the wrong email address and the email was therefore not received until the MP chased the Council using a different email address on 13 September. I am therefore satisfied delay responding to the complaint was not caused by fault by the Council. So, I have no grounds to criticise it.
44. Mr C says the Council’s response to the complaint shows it has failed to identify any flaws in the system which means it has not learnt any lessons. I understand why Mr C would take that view as the Council’s complaint response does not provide any detail about any action it has taken to deal with procedural issues which have been identified as part of the complaint investigation. The Council has now provided details of action it has undertaken or plans to address the issue of ensuring continuing healthcare assessments take place. I am therefore satisfied the Council has put in place learning from the complaint. The issue is therefore with failing to explain to Mr B and his family what action the Council had taken to address the issues that arose in this complaint. Failure to share that information with the family is fault. I recommended the Council apologise to Mr B and the family for that. I do not consider any further remedy necessary given I am satisfied the Council has put in place changes to procedures or plans further changes to address the problems that arose in this case. The Council has agreed to my recommendation.

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Agreed action

45. Within one month of my decision the Council will:
• apologise to Mr B and Mr C; and
• pay Mr B £500.

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Final decision

46. I have completed my investigation and found fault by the Council in part of the complaint. The action the Council will take is sufficient to remedy the injustice as a result of that fault.

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Investigator's decision on behalf of the Ombudsman