Summary: Mr X complained, on behalf of his mother, Mrs Y, about how the Council communicated changes to how her care would be funded. There was fault in how the Council failed to properly tell Mr X about changes to the funding arrangements for Mrs Y’s care. This resulted in Mrs Y paying more for care than she would have done. The Council agreed to apologise and pay for some of Mrs Y’s outstanding care charges. It also agreed to remind its staff about the importance of good communication and case recording.

The complaint

1. Mr X complains, on behalf of his mother, Mrs Y, that the Council did not properly tell her when its funding for her home care would end. As a result, he says Mrs Y did not have the opportunity to review what care she wanted to pay for privately and has been left with a large bill for several months’ care, which was more than she eventually agreed to pay for. He wants the Council to apologise and pay for the extra care Mrs Y has been charged for but did not need.

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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. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
4. 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

5. I considered:
• the information Mr X provided and discussed the complaint with him; and
• the Council’s comments on the complaint and the supporting information it provided.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Paying for adult social care

7. Intermediate care and reablement support services are for people usually after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help a person to preserve or regain the ability to live independently.
8. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)
9. The Better Care Fund (BCF) is a programme that supports the integration of health, social care and housing services in England. This can include shared Council/NHS funds to pay for certain types of care services without charges to those receiving the care.
10. For most other types of care, councils can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must a carry out a financial assessment following 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)
11. 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 generally pay the full cost of their care.
12. Where someone is responsible for paying all or some of the costs of their own care to a care provider, the provider must provide them with information about the key terms and conditions, including fees. Where possible, this should be provided in advance of someone becoming liable to pay their fees. (Regulation 19; Care Quality Commission (Registration) Regulations 2009)

What happened

13. At the end of 2022, Mr X’s mother, Mrs Y, went into hospital.
14. When she was ready to leave hospital in early 2023, the Council arranged home care for Mrs Y through its reablement service. This involved four visits from carers each day.
15. In late January 2023, a physiotherapist reviewed Mrs Y’s needs and decided she would need care for longer than first expected because of delays in her recovery. It arranged to transfer Mrs Y’s care to an independent care provider (Provider B) and to fund this through the Better Care Fund. The physiotherapist suggested that Council staff “may want to call the [next of kin, Mr X] to let him know that in [three weeks, the Council] will review [Mrs Y’s progress] with a view to giving one weeks notice and [decide] whether they want to keep the present care agency… or find their own agency.”
16. The Council told Mr X in an email at the end of January 2023 that “[Mrs Y’s] care will be funded by the Council/NHS (a funding stream called ‘better care funding’) which meant there will be no charge to Mrs [Y] at present. A therapist from our team will continue to review Mrs [Y]’s circumstances and will liaise with Mrs [Y] before anything changes.”
17. Provider B took over Mrs Y’s care visits from the start of February 2023.
18. In late February 2023, the officer overseeing Mrs Y’s care asked a colleague to contact Mr X to discuss that the current care funding was due to end and Mrs Y would need to pay for any ongoing care, because she had assets above the financial limit.
19. The Council says an officer called Mrs Y and explained that her better care funding was due to come to an end and any further care would need to be self-funded. Mr X says that, despite the Council’s claim that the officer spoke to Mrs Y’s son, Mr X was not present at the time and did not speak to the Council about the changes to Mrs Y’s care.
20. In mid-March 2023, the Council notified Provided B that its funding of Mrs Y’s care had ended at the end of February 2023 and that Provider B should charge Mrs Y from the beginning of March.
21. However, Mr X says Provider B did not contact him about paying for Mrs Y’s care until May 2023. After it told him about this, Mrs Y chose to have fewer visits and this resulted in Mrs Y paying significantly less for her care.

My findings

22. In my view, there was fault in how the Council communicated with Mrs Y and Mr X about her move from Council/NHS funded to privately funded care.
23. When it transferred Mrs Y’s care from its reablement service to better care funding it told Mr X that someone from the Council would liaise with them before any changes.
24. The Council’s records show that Mr X was the main contact for practical and financial arrangements for Mrs Y’s care. The Council had dealt with Mr X throughout the process of arranging and managing Mrs Y’s care
25. Although there is a note in the Council’s files that an officer called Mrs Y’s family around a week before the end of February 2023, the note does not say who the officer spoke to or anything about what choices Mrs Y and her family might have about her ongoing needs. This was despite the physiotherapist specifically naming Mr X as the person to speak to about the end of the better care funding.
26. Mr X says that nobody from the Council spoke to him about when Mrs Y would need to pay for her care privately either on the date of the Council’s note or any time before Provider B sent him the first invoice in May 2023.
27. On the balance of probabilities, I am not satisfied the Council properly notified Mr X about the end of the better care funding for Mrs Y’s care as it should have done and it said it would in its email to him. There is no evidence the Council confirmed the change by email, or otherwise in writing, as it had done previously with any significant changes to Mrs Y’s care.
28. There is also no evidence the Council gave any advance notice to Provider B of the end of the better care funding to allow Provider B time to have the discussions around charging it should have done, where possible, in advance of the Mrs Y becoming responsible for her own care charges. Instead, the Council only told Provider B of the change in funding two weeks after it this happened.
29. Had Mr X known about the end of the better care funding when he should have done, I am satisfied he and Mrs X would have had the discussions with Provider B about her ongoing care sooner than he did. I believe this would likely have resulted in Mrs Y choosing cheaper care sooner than she did.
30. Therefore, my view is the Council should pay for two weeks’ worth of the care Mrs Y. This is the period between when her better care funded ended and the Council notified Provider B of the change.
31. After Provider B became aware that Mrs Y would need to pay for her own care, it had responsibility to share information about this with Mrs Y and Mr X. I cannot hold the Council responsible for any failures of Provider B to share the required information after the Council told it Mrs Y would be responsible for paying these charges.

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Agreed action

32. Within one month of my final decision the Council will:
• apologise to Mrs Y and Mr X for not clearly notifying them of when Mrs Y would become responsible for her own care costs;
• pay Mrs Y (or Provider B on her behalf) the equivalent of two weeks’ worth of the difference between Mrs Y’s care charges from March 2023 and those she eventually negotiated with the care provider.
33. Within three months of my final decision the Council will:
• remind its social care staff of the importance of confirming important changes in care funding in writing, where possible, in good time before the changes are due to take effect; and
• remind its social care staff of the importance of making sufficiently detailed records of telephone conversations where important information, such as changes to care funding, are discussed.
34. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed my investigation. There was fault in how the Council failed to properly tell Mr X about changes to the funding arrangements for Mrs Y’s care. This resulted in Mrs Y paying more for care than she would have done. The Council should apologise and pay for some of Mrs Y’s outstanding care charges. It should also remind its staff about the importance of good communication and case recording.

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Investigator's decision on behalf of the Ombudsman