Summary: There was some confusion about the end date of Mrs X’s residence at the first care home, but the Council was not at fault in requiring the assessed contributions to be paid. The Council has written off a significant amount of charges and agrees to offer an increased sum in acknowledgement of the poor communication

The complaint

1. Mrs A (as I shall call her) complains the Council initially told her a large refund was owed to her for her mother’s residential care then issued an invoice for outstanding fees instead. She says the delay and uncertainty has caused significant distress.

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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 significant injustice, or that could cause injustice to others in the future 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 considered all the information provided by the Council and by Mrs A. Both the Council and Mrs A had the opportunity to comment on an earlier draft of this statement and I took their comments into account before I reached a final decision.

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What I found

Relevant law and guidance

5. 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.
6. 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.
7. 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.
8. 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
9. Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.

What happened

10. Mrs X was resident in a care home (care home A) for some years before admission to hospital in June 2021. She continued to pay the fees for her care home placement (which was arranged by the Council). The Council’s contract with the care home says, “3.17 HOSPITAL STAYS AND DISCHARGES

Prior to the Service User’s discharge from hospital the Provider will review the Service User’s care needs to ensure they can continue to be met by the Provider.”

11. By November Mrs X’s needs had increased and she required nursing care. Mrs A says they were twice told her mother was near the end of her life. Mrs X was discharged from the hospital to care home B for an assessment for CHC funding. Mrs A says she was told this would take about 4 weeks but there was a significant delay.
12. In the interim Mrs A says care home A had told her it could no longer meet Mrs X's needs. A note on the Council’s records for 10 December 2021 says, “The room at (care home A) still has her mum’s items in and (care home A) asked her to clear it but (Mrs A) doesn't know where to take the items to.” The social worker added a note, “I can see the plan is still active and hasn't been ended so I will contact finance for advice on what to do and when to end this plan. Informed (Mrs A) I would follow up with her next week when I receive a reply.” The Council says there is no evidence this was done but, in any event, the social worker would have been given the advice that care home A remained Mrs X’s permanent home until another decision was taken. Mrs A says this conversation did not happen. She says if she had been asked by the care home to collect Mrs X’s belongings she would have done so.
13. The Council says the CHC team did not have a nurse available to support the completion of the Decision Support Tool meeting and so it was not until 20 December 2021 that the CHC checklist was completed. The Council says there was a further delay caused by sickness in the CHC team until March 2022 before a meeting was arranged to discuss the outcome of the assessment and a decision made about Mrs X’s future care. It was decided that Mrs X was eligible for FNC contributions towards the cost of her nursing needs but not eligible for CHC funding. The contract with care home A was formally ended on 15 March 2022.
14. Mrs A says the family was not happy with the care Mrs X received in care home B and asked for her to be put on the waiting list for care home C. She says she was very pleased when care home C called her on 10 May 2022 to say it had a place but dismayed to discover Mrs X had already been transferred there on 22 April with no prior notice to the family.
15. Mrs A says she received a letter from the Council in March 2022 informing there was an overdue balance on Mrs X’s account. She contacted the Council but it was not until Mrs X’s death in June 2022 she was told verbally there might be a “sizeable refund” due on her mother’s care fees. She says it was not until November 2022 that the hospital discharge manager telephoned her to say there was no refund due as care home A had not terminated Mrs X’s placement. Mrs A says the manager offered her £300 in recognition of the distress caused by the uncertainty, but she regarded this as derisory.
16. The manager wrote to Mrs A in November with a summary of their conversation. She said she had discussed the matter with officers from different departments and reviewed the case records. She said, “The agreed conclusion was that your mother had been admitted to hospital and provided with a health funded care home placement on discharge, in lieu of a hospital bed for the purposes of being assessed for Continuing Health Care. In the same way that someone with a tenancy or owner-occupied property would not be asked to sell their home or end their tenancy in this circumstance, current practice supports that the residential care home placement would not be ended until determination. (Care home A) constituted your mother’s permanent home and until her health assessment was completed and a new permanent home agreed, the Local Authority continued to fund the placement as to do otherwise would have been making her homeless. For this reason she was required to pay her assessed contribution towards her care and accommodation during the time that she spent in hospital and (Care home B).”
17. Mrs A says she was disappointed at the outcome but accepted it until she received a bill from the Council in April 2023 for outstanding charges of £6000. The Council said “it has been determined that charging applied during periods of hospitalisation and the charges are correct and payable” but added that Mrs X “did not own property, seemed to have low Savings and moderate income. If it is the case that there were insufficient funds to pay the above debt then we could look at closing the account unpaid”.
18. Mrs A complained to the Ombudsman. She said there had been long periods of time when the Council did not contact her to explain the process. She said it had caused additional stress to be told firstly she would receive a sizeable refund and then to be faced with a large bill when her mother’s estate had been distributed.
19. The Council says Care home A was Mrs X’s permanent home and until her health assessment was completed and it was established that she was unable to return there, the Council continued to fund their contribution of her placement and Mrs X was invoiced for hers. The Council points out that to do otherwise would effectively have made Mrs X homeless.
20. In respect of the transfer between Care home B and Care home C in April 2022, the Council says it was not aware this had taken place at the time. It says, “This series of events has been raised with our Contract Team as the care home should not have accepted a new admission without the appropriate contract being in place. It is unacceptable that (Mrs A) was moved without the knowledge of either Adult Social Care or her family.”
21. The Council says the suggestion to Mrs A that she might be due a refund was the speculative response of an officer, but the investigation of Mrs X’s finances was undertaken by another department. It accepts the officer’s response was probably taken as definitive by Mrs A.
22. The Council explains that two invoices remain outstanding: an amount of £736.22 for Mrs X’s care between 21 May and 08 June at Care home C, minus a credit of £300 offered to Mrs A in acknowledgement of the distress caused by poor communication; and £734, the balance of funds in Mrs X’s estate after payment of funeral expenses. There is a note on the statement: “ASC agreed to write off all other charges outstanding which amounted to £4565.27.”

Analysis

23. It was not fault on the part of the Council to require the assessed contributions to be paid during Mrs X’s hospital admission – had the contract with care home A been ended before another placement was arranged, the Council would have made Mrs X homeless.
24. There was a period of delay when officers failed to respond to Mrs A’s requests for information and the Council acknowledges there was poor communication then. It has offered a sum in recognition but should go further, in my view.
25. It was unhelpful for an officer to speculate about the possibility of a refund which led to raised expectations on Mrs A’s part.
26. The Council has already recognised and taken action in respect of the transfer which took place between care homes without Mrs X’s family being informed.

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Agreed action

27. Within one month of my final decision the Council should offer Mrs A a total of £500 in respect of its poor communication.
28. The Council should provide us with evidence it has complied with the above actions.

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Final decision

29. I have completed this investigation. I find there was some fault on the part of the Council which caused injustice to Mrs A. The completion of the recommendation at paragraph 27 will remedy that outstanding injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman