Summary: Mrs X complains that the Council failed to notify her and Mrs Y that the funding for Mrs Y’s care home place had ended and failed to complete a Continuing Healthcare assessment. The Council is not at fault for not informing Mrs X and Mrs Y that the funding for Mrs Y’s care home place had ended in April 2021. The Council is at fault for not returning Mrs X’s call about a Continuing Healthcare assessment and for delaying in dealing with her complaint. The Council has agreed to apologise to Mrs X for the avoidable time and trouble caused by the delay in dealing with her complaint.

The complaint

1. The Council failed to notify Mrs X or Mrs Y that it had ended the COVID-19 funding of Mrs Y’s placement at a care home. As a result, Mrs X and Mrs Y were not aware the funding had ended or that Mrs Y had accrued unpaid fees of £25,847.82
2. The Council failed to consult Mrs X when carrying out a Care Act assessment and Continuing Healthcare (CHC) checklist in October 2020 and failed to complete a continuing healthcare checklist for Mrs Y when requested by Mrs X in December 2020. As a result, Mrs X considers she missed the opportunity to explain why she considered Mrs Y had a primary health need. She also had an expectation a CHC checklist would be carried out in December 2020 and for Mrs Y to be assessed for CHC funding.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I have:

• considered the complaint and the information provided by Mrs X;
• discussed the issues with Mrs X;
• made enquiries of the Council and considered the information provided;
• invited Mrs X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Covid 19 funding

5. During the COVID 19 pandemic, hospitals were required to discharge patients as soon as it was clinically safe to do so. Clinical commissioning groups (CCG) funded some care home places until a local authority carried out a Care Act assessment to establish a person’s needs.

Charging for permanent residential care

6. 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.
7. 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 over the upper capital limit must pay the full cost of their residential care home fees. Once their 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

8. Where it appears a person may be eligible for NHS Continuing Healthcare (NHS CHC), councils must notify the relevant integrated care system (ICS) (previously clinical commissioning groups) 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.

Complaints

9. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough.
10. Regulations do not say how long a complaint investigation should take. But they do say an expected timescale must be explained at the start, usually in discussion with the complainant. If the complainant does not want to discuss this, the responsible body must decide the timescales and confirm them to the complainant in writing. The body must keep the complainant informed of progress during the investigation ‘as far as reasonably practicable’. If the responsible body has not provided its response after six months (or after a longer period agreed with the complainant), it must write to the complainant to explain why. (Regs 13 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

What happened

11. The following is a summary of the key facts relevant to my consideration of the complaint. It does not include everything that happened.
12. In summer 2020, Mrs Y was discharged from hospital into residential care. Mrs Y’s care home place was commissioned by the CCG. The Council’s records note an officer told Mrs X that they would send her a leaflet about the financial implications of a care home placement. Mrs X has said she did not receive the leaflet.
13. In October 2020, a social worker carried out a Care Act Assessment for Mrs Y to establish her care needs. The Council’s records note the social worker spoke to the care home, Mrs Y and Mrs X to gather information for the assessment. The record of the call with Mrs X notes she said Mrs Y would be a self funder as her capital was above the upper threshold. The assessment records Mrs Y’s view that she wanted to stay in the care home in the short term and she would be self funding her stay.
14. The social worker completed a CHC screen based on the information obtained for the Care Act assessment. He concluded that a referral for a CHC assessment for Mrs Y was not required.
15. The Council’s records note the social worker spoke to Mrs X following the assessment to advise Mrs Y wanted to stay at the care home in the short term. The record notes the social worker discussed the financial implications with Mrs X and Mrs Y separately. The records note Mrs X would contact the care home to set up a direct debit as Mrs Y would be self funding. The Council’s records also note the care home advised that Mrs X had contacted it to set up the direct debit. Mrs X has said the Council did not advise her to set up a direct debit and she did not contact the care home to do so.
16. The CCG’s funding for Mrs Y’s care home place was due to end on 29 October 2020. However, the CCG continued to pay the fees until 9 April 2021.
17. In December 2020, Mrs X raised concerns that the Council expected Mrs Y to pay the full costs of her care. She requested a CHC assessment. The Council has said an officer called Mrs X and left a voicemail for her. Mrs X returned the call but the officer was not available. The officer did not contact Mrs X again.
18. In June 2021 the care home contacted the Council to check the payments made for Mrs Y’s fees. It also asked how Mrs Y’s care would be funded as the CCG payments had stopped. There is no evidence to show the Council responded to this email. The care home contacted the Council again in November 2021 which confirmed Mrs Y was a self funder.
19. In early 2022 the care home sent an invoice to Mrs X for Mrs Y’s fees from April 2021 to November 2021. The outstanding fees amounted to £25,847.82. Mrs X has said this was the first time she became aware that Mrs Y’s care home place was no longer being funded.
20. Mrs X made a complaint to the Council in February 2022 that it considered Mrs Y to be a self funder without carrying out a CHC assessment. Mrs X chased the Council for a response to the complaint on several occasions. The Council responded to Mrs X’s complaint in early October 2022. The Council said:

• It acknowledged officers did not call Mrs X back regarding her request for a CHC assessment and its communication had been poor.
• The financial implications had been discussed with Mrs X and Mrs Y in June and October 2020.
• It completed a CHC screen in October 2020 based on the information provided in the Care Act assessment. This indicated a referral for a CHC assessment was not required. Furthermore, a district nurse assessor reviewed Mrs Y’s needs following a hospital admission in May 2021 and decided she did not have any nursing needs.

The Council has said the delay in responding to Mrs X’s complaint was due to the COVID-19 pandemic and system pressures.

21. Mrs X has said that she was not informed of when the funding for Mrs Y’s care home place would end and did not know it had ended in April 2021. Mrs X also thought Mrs Y would be entitled to CHC funding for some of her stay. Had the family known Mrs Y would not be entitled to CHC funding they may have looked for a cheaper care home place.
22. Mrs Y has since returned home with a care package.

Analysis

Ending of the funding for Mrs Y’s care home place.

23. Mrs Y’s care home place was funded by the CCG and this funding should have ended when the Council carried out the Care Act assessment in October 2020. It continued until April 2021. On balance, I do not consider the Council is at fault for not informing Mrs X when the funding ended in April 2021. The Council was expecting the funding to end on 29 October 2020 and it would not have known it had continued until April 2021 as it was paid by the CCG.
24. The Council was on notice that the funding had ended in June 2021 when the care home contacted it about the payments and asked what the ongoing funding arrangements for Mrs Y would be. There is no evidence to show it responded to the care home to clarify when the payments had ended. On balance, this is fault. The Council was not responsible for the payments but it missed a further opportunity to advise the care home that Mrs Y was a self funder.
25. But I do not consider the fault caused significant injustice to Mrs Y. I acknowledge being notified of a large debt will have been an unpleasant shock to Mrs X and Mrs Y. However, the evidence shows Mrs X and Mrs Y were aware that the CCG funding was due to come to an end in October 2020 and Mrs Y would be a self funder. So, they were on notice Mrs Y would have to pay her fees. Furthermore, the care home was responsible for sending invoices to Mrs X for Mrs Y’s fees and the Council had advised in October 2020 that Mrs Y would be contacting it to set up a direct debit. I therefore do not consider the fault by the Council directly caused Mrs Y to accrue the arrears.

CHC checklist

26. The evidence shows the Council carried out the CHC checklist in October 2020 when conducting the Care Act assessment. Mrs X was contacted by the social worker in preparation for the Care Act assessment. Mrs X has said she was not aware the Council would be carrying out a CHC assessment. But she had the opportunity to raise any health needs when the social worker contacted her. I therefore do not consider there is evidence of fault in how the Council carried out the CHC checklist.
27. The Council has acknowledged an officer failed to return Mrs X’s call regarding her request for a CHC assessment in December 2020. This is fault which will have caused frustration to Mrs X.
28. But I do not consider I can say, on balance, the outcome would have been any different had the Council responded. The Council had already carried out a CHC checklist. Even if it had carried out a further checklist, it is unlikely it would have referred Mrs Y for a full CHC assessment as no health needs had been identified at that time. Furthermore, no health needs were identified following Mrs Y’s discharge from hospital in May 2021. A decision on whether someone qualifies for CHC funding is for the CCG and I cannot know what the outcome of an assessment would have been even if the Council had referred Mrs Y for full assessment. The Council apologised to Mrs X for not returning the call which is an appropriate and proportionate remedy for the frustration caused.
29. Mrs X has said the Council did not respond to a number of calls or emails from her regarding Mrs Y’s fees. I have not seen evidence to show how the Council dealt with all of Mrs X’s calls. But I do not intend to investigate this matter further as it would be disproportionate to what I could achieve for Mrs X to do so.

Complaint response

30. The Council took eight months to respond to Mrs X’s complaint. The Council did not give Mrs X a timescale for the completion of its investigation and there is no evidence to show it explained to Mrs X why she had not received a response after six months. Mrs X also had to chase the Council on a number of occasions for an update. The delays therefore put Mrs X to avoidable time and trouble which the Council should apologise for.

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Agreed action

31. The Council will:
1. send a written apology to Mrs X for the avoidable time and trouble caused to her by the delay in responding to her complaint and for delaying in keeping her informed of the progress.
2. by training, or other means, remind officers they should agree a timescale for responding to adult social care complaints at the start of the investigation, keep complainants informed of the progress of the investigation and provide an explanation if the investigation takes longer than six months. This is to ensure the Council’s complaint handling is in accordance with the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009.
32. The Council should take the above action within one month of my final decision and provide us with evidence it has complied with the above actions.

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Final decision

33. The Council is not at fault for not informing Mrs X and Mrs Y that the funding for Mrs Y’s care home place had ended in April 2021. The Council is at fault for not returning Mrs X’s call about a CHC assessment and for delaying in dealing with her complaint. The Council has agreed to apologise to Mrs X for the avoidable time and trouble caused by the delay in dealing with her complaint which is a proportionate remedy. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman