Summary: Mr R complained that the Council had wrongly charged his mother, Mrs C, for her residential social care after assuring him she would not have to pay. He also complained that the invoice was not sent to him until six months after Mrs C’s death. The Council was not at fault for charging Mrs C for her adult social care. The Council has accepted it was at fault for a failure to send an invoice for six months after Mrs C died. This fault caused Mr R injustice as he was surprised to receive it. The Council has agreed to pay Mr R a sum in recognition of the injustice caused.

The complaint

1. Mrs C is deceased. Her son, Mr R, acted as her representative. Mr R said the Council was at fault for:
1. Charging Mrs C for adult social care having agreed in June 2019 that it would fund her care itself; and
2. For its failure to present the invoice until six months after Mrs C’s death.
2. Mr R said this caused injustice because Mrs C should not have had to pay the fees and the delay in informing him of the bill caused him shock.

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The Ombudsman’s role and powers

3. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. Part 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
4. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
5. We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
6. If we are satisfied with an organisation’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

7. I spoke to Mr R. I wrote an enquiry letter to the Council requesting further information. I considered all the information I had gathered.
8. Mr R 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 happen

Choice of care homes

9. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home place for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions. This also extends to shared lives, supported living and extra care housing settings.
10. The council must ensure:

• the person has a genuine choice of accommodation;
• at least one accommodation option is available and affordable within the person’s personal budget; and,
• there is more than one of those options.

11. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or, in certain circumstances, the resident is willing and able to pay the additional cost. This is called a ‘top-up’. But a top-up payment must always be optional and never the result of commissioning failures leading to a lack of choice.
12. If a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:

• the person can find someone else (a ‘third party’) to pay the top-up; or
• the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themself.

13. In such circumstances, the council needs to ensure the person paying the top-up enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.

Charging for permanent residential care

14. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
15. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
16. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have assets worth more than the upper capital limit must pay the full cost of their residential care home fees. Any property they own can be considered as capital unless they are married and their partner is currently living in a property. The upper capital limit is currently £23,500.
17. Once a person’s capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

NHS Continuing Healthcare Assessments

18. Where it appears a person may be eligible for NHS Continuing Healthcare (NHS CHC), councils must notify the relevant integrated care system (ICS). NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness. This will not normally pay the entirety of someone’s care fees but only the amount caused by their health needs.
19. A joint package of care could include NHS-funded nursing care and other NHS services that are beyond the powers of a council to meet. Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.

NHS-Funded Nursing Care

20. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined. If the person has such a need and it is determined their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS-Funded Nursing Care.

Charging for temporary residential care

21. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt a permanent admission is required. The person’s stay should be unlikely to exceed 52 weeks, or in exceptional circumstances, unlikely to substantially exceed 52 weeks. A decision to treat a person as a temporary resident must be agreed with the person and/or their representative and written into their care plan.
22. A council can choose whether to charge a person where it is arranging to meet their needs. In the case of a short-term resident in a care home, the council has discretion to assess and charge as if the person were having their needs met other than by providing accommodation in a care home. Once a council has decided to charge a person, and it has been agreed they are a temporary resident, it must complete the financial assessment in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance.

What happened

23. In 2018, Mrs C was an elderly lady with health and mental health problems and dementia. She and her husband, Mr C, lived in an annexe at Mr R’s house.
24. In November 2018, Mrs C was admitted to hospital after falling ill. While Mrs C was in hospital, the Council carried out an interim financial assessment and determined that she was liable to pay her social care fees. In mid-January 2019, when she had recovered, she was discharged home with a care package of four home visits per day. This was arranged and funded privately by Mrs C’s family.
25. Unfortunately, after returning home, Mrs C began to become increasingly distressed. She refused care from her carers and became increasingly aggressive towards Mr C.
26. On 30 January 2019, the care agency raised a safeguarding concern and called the police. She was prescribed antipsychotic medication. Mrs C continued to live at home for another week but, although she continued to take her medication, she remained agitated.
27. The records show that Mr R was keen for Mrs C to go into a care home as soon as possible. He had a conversation with a Council officer in which he said that Mrs C had very limited savings, well below the payment threshold and also owned a part share in a house. The social worker told him that, in that case, she would probably not have to pay towards her social care.
28. Mr R later told an officer of the local mental health trust that he believed that the Council would be responsible for funding but, because of the urgency of the situation, he could not wait for the paperwork to be completed. He arranged through contacts to get Mrs C placed in a local specialist social care facility (‘the Home’). He said that he was happy to pay for Mrs C’s care in the interim.
29. The Council later agreed to fund the initial six weeks respite care period at the Home. The local NHS Trust says it wrote to Mr R on 13 February 2019 saying, “[The Council] have agreed to fund your mum at [the Home] from 6.2.2019 on a temp basis. They will liaise with [the Home]. If the planned financial assessment determines your mum doesn’t meet the financial criteria for funding then of course your mum will be liable for the cost of her care from 6.2.2019.”
30. The Council agreed to fund six weeks further respite care for Mrs C at the Home on 19 February 2019. The NHS notes from 25 February 2019 say, “[The Council] state they have only agreed to fund your mum at [the Home] for 6 weeks from her date of admission. If at the time of the meeting it is agreed that a permanent placement is required I will need to reapply to [the Council] with the evidence of why this is needed. They also informed me that they will be looking for a cheaper home that can meet your mum’s needs. As previously discussed, if at the time of the meeting we agree it would not be in your mum’s best interest to move her to an alternative home I will need to make a case for this to [the Council].”
31. The records show that, in March 2019, a Council officer wrote to Mr R and, again, made it clear that funding had not yet been agreed.
32. During the next months, various options for Mrs C’s care, such as going to stay with family members, were discussed. However, given her dementia, Mr R and care professionals expressed concerns about these proposals.
33. In May 2019, an NHS social worker wrote to Mr R about Mrs C’s contribution to her care. She said “You should have received a letter from the Financial Assessor informing you of your mum’s weekly contribution following her financial assessment. Looking on the records I have access to, [it] looks like your mum’s weekly contribution is currently £142.35 per week … But you would be advised to check this with [the Council’s] finance team…Once funding is agreed for a permanent stay, your mum’s weekly contribution will be adjusted as they normally have disregards when someone is temporary”.
34. In late June 2019, the record shows that a best interests decision was made that Mrs C should continue to reside at the Home. In early June, Mr R wrote to the Council requesting information about a funding decision.
35. On 24 June 2019, Mrs C’s NHS social worker wrote to Mr R saying “I have just had notification from [the Council] that they have agreed to fund your mum at [the Home] from today. You should receive a permanent contract from [the Council] …As funding has now been agreed, I will be closing your mum’s case.”
36. In July 2019, Mrs C’s condition worsened. She now required one to one care 24 hours per day. The Home’s manager wrote to the Council requesting an urgent care needs review as the costs of her care had increased.
37. The Council’s records show that the Council contacted the Home. The Home believed that Mrs C was a ‘self-funder’. The Council told the home she was not. The home had been trying to get continuing health care funding for some of Mrs C’s health care from the NHS.
38. The records show that, in November 2019, Mr R phoned the Council. He spoke to a Council officer, Officer O. He said he believed Mrs C should not have to pay anything for her care. Officer O recorded that she told him, “…everyone has a financial assessment and that social care was not a free service.” She recorded that Mr R continued to argue that he should not have to pay as Mrs C had dementia and that she “…reiterated that she would have had a financial assessment and that her assessed charge would have been worked out”. Officer O told Mr R what the charge was. She recorded that she also said “…that if [Mrs C] had over the threshold of £23,250 then she would have to self-fund the whole placement herself.”
39. However, Officer O said she would look into the possibility that the NHS would fund some of the costs through continuing healthcare payments since Mrs C’s deterioration.
40. The records show that Mr R continued to correspond with Officer O about this into early 2020. At this point, some continuing healthcare funding had been approved by the NHS. Mr R asked Officer O if, now that the NHS funding had been approved, Mrs C would still have to pay a contribution towards her care. Officer O said that she would though she would not have to pay the amount agreed as CHC funding and paid by the NHS.
41. The Council carried out a full financial assessment of Mrs C in October 2019. This showed that Mrs C would have to pay approximately £373 per week. However, unfortunately, due to a Council error, this was never properly input into the Council’s systems and no notification was sent to Mr C or Mr R.
42. Mrs C died in May 2020. In October 2020, the Council noticed its error. The Council informed Mr R of this in late 2020 telling him that Mrs C owed £45,114.43 for her care which had been funded by the Council.
43. In early 2021, Mr R fell ill. He continued to dispute the bill. He came to the Ombudsman.

Was there fault causing injustice?

44. Mr R says he was told in June 2020 that Mrs C would not have to contribute to her care. The records show that it was an NHS social worker and not a Council officer who told him this. Therefore, I do not find the Council at fault for this statement. In any event, this social worker had previously explained that Mrs C would be required to pay a contribution towards her care costs based on her ability to pay and that Mr R might be asked to pay a top-up which he said he would be happy to do. This shows that Mr R was aware that the contribution Mrs C would have to pay would depend on the value of her savings and assets.
45. The records also show that, on several occasions in 2019 and 2020, Council officers told Mr R that:
1. Mrs C had been assessed as being liable to pay a contribution towards the fees in the region of £143 per week,
2. That this was only an interim assessment based on Mr R’s initial statement that Mrs C had only limited savings and a part share in one house.
3. That the NHS would fund some care but that, although the Council was paying the remainder, Mrs C would have to pay an assessed contribution to the remaining bill.
46. I therefore find that the records show that Council officers did tell Mr R that Mrs C would have to pay a contribution towards her fees. For that reason, I do not uphold this part of Mr R’s complaint.
47. Nonetheless, it is clear that the Council’s systems failed and the Council failed to send an invoice to Mr R for nearly six months after Mrs C’s death. This was fault and it caused injustice to Mr R as it would have been surprising to receive a bill after so long and he may have come to believe that Mrs C would not have to pay more. For that reason, I am recommending that the Council should pay him a sum in recognition of that injustice.
48. Mr R has suggested that Mrs C should only have to pay the £143 per week that was found to be due after the interim assessment. However, I do not believe that this would be a suitable solution.
49. The Council told Mr R on several occasions that there would be a further assessment and that Mrs C would have to contribute the amount she was found to be able to afford. However, even if it had not, this would not have altered the fact that the assessment would have happened and Mrs C would have been required to pay whatever the assessment found her liable to pay.
50. Councils calculate the size of a service-user’s contribution according to formulae based on income, expenditure and assets. Mr R has not challenged the actual calculations and so there is no reason for them not to apply and no reason that the Ombudsman could say that Mrs C was not due to pay that sum.
51. The fault that I have found is not with the calculations themselves but with the Council’s failure to inform Mr R about them for six months.
52. For that reason, the injustice caused by Council fault is the shock Mr R would have felt when he received the unexpected invoice. The remedy for this will be a payment in recognition of the distress this would have caused.

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Agreed action

53. The Council has agreed that, within four weeks of the date of this decision, it will:
1. Write to Mr R and apologise for any distress caused by the failure to inform him of Mrs C’s assessment sooner,
2. Pay him £250, and
3. Offer him the opportunity to pay the outstanding balance by instalments if he is unable to pay at once.

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Final decision

54. I have reached a final decision and closed my investigation.

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Investigator's decision on behalf of the Ombudsman