Summary: The Council failed to accurately assess Mrs Y’s financial circumstances when she went into residential care. There are numerous and serious failings by the Council which demonstrate poor practice. This caused Mrs Y’s husband and daughter a significant and personal injustice. The Council has agreed to remedy this.

The complaint

1. Mrs X complains about the service provided by the Council following her mother’s discharge from hospital to a residential care home.

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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 discussed it with Mrs X;
• considered the correspondence between Mrs X and the Council, including the Council’s response to this complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Mrs X and the Council the opportunity to comment on a draft of this document.

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What I found

Relevant legislation

5. A Council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A Council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the Council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
6. Where a Council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. Councils have no power to assess couples according to their joint financial resources. A Council must treat each person individually. A Council must not charge more than the cost it incurs to meet a person’s assessed eligible needs.
7. Sections 9 and 10 of the Care Act 2014 require Councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.

Background

8. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
9. Mrs X’s mother, Mrs Y is in her seventies. She was discharged from hospital on 23 December 2021 to a residential care home under the ‘discharge to assess’ pathway. The discharge to assess scheme enables people to be discharged from hospital into a residential/nursing home to continue receiving support and allow further assessment of their longer-term care needs. The care is free of charge for six weeks.
10. The Council allocated Mrs Y a social worker.
11. Following a telephone conversation between the social worker and Mrs X on 17 January 2022, the social worker sent Mrs X an email informing her that the discharge to assess funding would cease on 20 January 2022. The same day the social worker sent an email to the care home saying Mrs Y was self-funding.
12. The Council referred Mrs Y for an NHS Continuing Healthcare Assessment (CHC) in January 2022. CHC is a package of care for people who are assessed as having a 'primary health need'. It is arranged and funded by the NHS. In February 2022, the assessment concluded Mrs Y was not eligible for full funding but was eligible for Funded Nursing Contribution. This is when the NHS pays for the nursing care component of nursing home fees. The NHS pays a flat rate directly to the care home towards the cost of this nursing care.
13. The social worker contacted the care home again on 2 February 2022, asking it to arrange a private contract for Mrs Y’s placement. She informed Mrs X about this.
14. Mrs X contacted the social worker on 14 February 2022 to say Mrs Y’s funds were below the capital threshold for funding of care fees. A financial form was sent to Mrs X. Mrs X returned the form, but the Council’s financial assessment team notified the social worker that the wrong form had been sent to Mrs X.
15. Mrs Y was readmitted to hospital on 7 March 2022.
16. On 14 March 2022, the Council’s financial assessment team advised the social worker to seek advice from the Council’s legal team regarding Mrs Y’s financial position in respect of properties owned by her and her husband. The same day the social worker ended the Council’s involvement with Mrs Y’s placement, with no further action.
17. On 16 March 2022, Mrs X sent an email to the social worker requesting assistance, the Council’s records show no response from the social worker.
18. Mrs Y was discharged from hospital back to the care home on 22 March 2022.
19. In May 2022, a different social worker recorded, that “Despite having savings below the threshold, once the Discharge to Assess funding ceased on 10th February 2022, [Mrs Y] began paying her £1600 weekly care costs. Savings have since fallen to approximately £6,000, possibly lower”. The social worker also listed numerous properties owned by Mr and Mrs Y.
20. Mrs X says the properties are mortgaged and there is no profit generated from any of them. She says the Council was aware of the capital interest in the rental properties, and it was documented on the financial assessment form and discussed on numerous occasions during telephone discussions. She also provided the Council with up-to-date valuations and mortgage statements
21. On 25 May 2022, the Council sent Mrs X another financial assessment form to complete on Mrs Y’s behalf, which she completed and returned to the Council.
22. Mrs X contacted the Council on 10 June 2022 to chase progress of the financial assessment and to say Mrs Y’s funds were about depleted. The Council allocated another social worker on 14 June 2022 and a visit was arranged for 20 June 2022.
23. Between June 2022 and September 2022, the Council appeared undecided about Mrs Y’s eligibility for funding and referred the matter to its legal team seeking advice about Mrs Y’s assets.
24. On 15 September 2022, the Council sent an email to Mrs X saying, “Your mum's 3 properties will not be taken into account as it isn't in the Council's interests”. It confirmed it would commission a bed at its usual rates and the fees above this would need to be met by a third-party payment. A third-party top-up form was sent to Mrs X. Subsequently, Mr Y began paying a third-party top-up.
25. The Council began funding Mrs Y’s placement at the care home in November 2022. A decision was also made at the time to backdate funding to 10 February 2022. Following this the Council paid the care home retrospective care fees. The care home then refunded Mr Y £19,000.
26. Mrs X submitted a formal complaint to the Council in November 2022. She received a response on 16 December 2022. The Council responded in writing on I have had sight of this letter. The Council acknowledged fault, saying the social worker had misunderstood the finance team’s advice on obtaining legal advice about the properties owned by Mr and Mrs Y. The Council also apologised for the lack of communication and lack of explanation about the financial assessment.
27. Mrs X met with a manager at the Council on 22 December 2022 to discuss the complaint.
28. The Council allocated a different social worker in January 2023 and a reassessment of Mrs Y’s needs was completed.
29. In February 2023, the Council’s records show there to be no available residential care placement within Mrs Y’s personal budget, therefore the Council would meet the full costs of Mrs Y’s placement. Mrs X received a call then email from the Council on 23 February 2023 informing her the top-up would cease.
30. Mrs X submitted a complaint to this office in February 2023. In her complaint she said the family had no previous experience of residential care and expected the social worker would provide support and guidance, but this did not happen. She says the social worker provided inaccurate financial information and overall poor service. She says she spent over 14 months trying to resolve matters and during that time Mr Y has struggled to meet monthly care home fees. She says if the family had been given all relevant financial information when Mrs Y went into the care home, they would have moved her to an affordable establishment. She says that is now not possible as Mrs Y is settled in her placement, and all parties agree that moving her would be extremely detrimental to her health and wellbeing. She says the situation has been the most upsetting and stressful period and caused daily worry.
31. In response to my enquiries, the Council acknowledged it failed to properly assess the full extent of Mrs Y’s finances and apologises profusely to the family for any inconvenience caused. It also acknowledges full consideration was not given to a remedy when the Council initially investigated Mrs X’s complaint.
32. It intends to reimburse Mrs Y’s husband for the third-party top-up paid between 10 February 2022 and19 February 2023. It says the basis for this being, that the family had not entered into a top-up agreement between February 2022 and November 2022. When the family did enter a formal top-up agreement in November 2022, the Council failed to offer at least one option of available accommodation within Mrs Y’s allocated personal budget.
33. The refund of the top-up amounts to £35,790 (375 days @ £668.05 per week)
34. The Council says after further review of Mrs Y’s circumstances it “…emerged that the financial assessment/review undertaken in September 2022 was not completed correctly as it inadvertently failed to assess [Mrs Y’s] capital interest in the 2 rental properties, (although her income (including rental) was assessed). The Council will accordingly be undertaking a fresh financial assessment to assess the full extent of [Mrs Y’s] financial resources, including [Mrs Y’s] capital interest in the rental properties. For the avoidance of any doubt, the Council will continue to fund [Mrs Y’s] placement (at the existing rate) pending the outcome of the fresh financial assessment”.
35. The Council would also like to offer financial redress in the sum of £300 to acknowledge the family’s distress for the time and trouble in bringing the complaint.

Analysis

36. I consider the Council’s failings have been serious and indicative of poor practice. The failings placed unfair pressures on Mrs Y’s husband who has faced financial pressures in funding Mrs Y’s placement and significant pressure on Mrs X who has had to spend excessive time trying to resolve matters with the Council.

The Council has acknowledged its failings and proposed a suitable remedy for the injustice caused to Mr Y and Mrs X.

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Agreed action:

37. The Council has agreed to:

• issue Mrs Y’s family with an unreserved apology for the failings set out above;
• refund Mrs Y’s husband £35,790 - third-party top-up monies paid between 10 February 2022 and 19 February 2023;
• pay Mrs X £300 in acknowledgment of distress, and her time and trouble pursuing the complaint.

38. In addition, the Council acknowledges:

• it had not previously provided the correct advice in relation to financial assessments. This was discussed during staff supervisions and has been discussed at the relevant team meeting. And;
• following the detailed case review, it identified further learning in respect of its charging policy and use of third-party top-ups. It intends to organise focused sessions using this complaint as an example showing when it must apply a third-party top-up on future cases, ensuring the correct process is followed.

39. We would expect the Council to complete the personal remedy within four weeks of the final decision, and within three months for procedural improvements. It should provide evidence of all the above action to this office.

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Final decision

40. There is evidence of fault causing injustice in this complaint. The above action represents a satisfactory remedy for the injustice caused.
41. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman