Summary: Mrs D complained the Council failed to complete her father’s Continuing Health Care checklist correctly and it was not truthful about its actions. She also says the Council delayed providing urgent care to her father. We find the Council was at fault for failing to complete the checklist correctly and for failing to be truthful about its actions. It was also at fault for its delay in finding a nursing home placement for Mrs D’s father. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Mrs D complained the Council failed to complete her father’s (Mr E) Continuing Health Care (CHC) checklist correctly and it was not truthful about its actions. She also says the Council delayed providing urgent care to Mr E.
2. Mrs D says the Council’s actions have caused distress and upset to the whole family.

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The Ombudsman’s role and powers

3. 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).
4. 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)
5. 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

6. I considered information from Mrs D. I made written enquiries of the Council and considered information it sent in response.
7. Mrs D 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

Assessment

8. 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.

NHS Continuing Healthcare Assessments

9. 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.

NHS-Funded Nursing Care

10. 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.

What happened

11. Mr E has complex health needs. He went into hospital in mid-June and was discharged at the end of June. On his return home, the Council provided him with a domiciliary care package. This consisted of carers providing him with support three times a day. The Council completed a financial assessment and decided Mr E was eligible to pay some money towards his care.
12. Mr E went back into hospital in mid-July. He was discharged home several days later. The Council continued the care package when he returned home.
13. The Council completed a review of Mr E’s care and support needs at the end of September. Mrs D explained Mr E could not mobilise and was sleeping downstairs. She also explained her mother (Mrs E) was providing nighttime care for Mr E, but she was struggling because of her own health difficulties. The Council agreed to complete a CHC assessment for Mr E. It also said Mr E’s care package should continue.
14. The Council completed a CHC checklist and sent it to the NHS at the end of October.
15. A nurse from a local hospice called the Council the following day. She said the family was struggling to look after Mr E. She asked for an urgent review.
16. The Council contacted Mrs D. Mrs D explained Mr E’s health had deteriorated and Mrs E could not cope. She said a nursing home was best for Mr E. She also said the GP stated Mr E could pass away within days.
17. The Council spoke to the nurse from the hospice again. The nurse said Mr E was medically stable and therefore NHS funding was not appropriate. The Council spoke to Mrs D and explained there was conflicting information about whether Mr E qualified for CHC.
18. Mr E’s GP sent a referral to the Council at the end of October and said Mr E needed to receive care at a nursing home. The Council updated Mrs D and said it was waiting for panel approval for funding so it could start looking for a nursing home.
19. Mrs D emailed the Council on 10 November. She complained it failed to put in place emergency care for Mr E.
20. The NHS contacted the Council and said Mr E or a person representing him needed to sign the consent form for the CHC checklist. Mrs E signed the form on 17 November.
21. Mrs D contacted the Council a few days later and said the matter was increasingly urgent as Mrs E was in hospital and there was no one to look after Mr E.
22. Mr E went into a nursing home on 23 November.
23. The NHS emailed the Council at the end of November and said it could not verify the CHC checklist. It said there was information missing and it completed the checklist when Mr E was at home, but he was now in a nursing home and his needs might have changed. It said nursing home staff needed to complete a new checklist. It also said it was likely Mr E was eligible for FNC. It told the Council to ask the nursing home to send it the FNC notification, and then it would arrange a FNC assessment.
24. The Council reviewed Mr E’s placement at the nursing home in December. Mrs D asked about CHC funding and whether the NHS had agreed it. The Council explained funding not been approved and it had not heard anything from the NHS.
25. The nursing home started sending invoices to Mr E. Mrs D called the Council in early 2023 and said she was concerned about the outstanding fees.
26. Mrs D contacted the CHC team to find out more about its communication with the Council. The team provided her with its emails with the Council from November 2022. Mrs D then contacted the Council and asked it to a retrospective CHC assessment. The Council responded and said any assessment must be of a person’s needs at the time, and it cannot assess what happened in the past.
27. Mrs D complained to the Council in July 2023. She said it failed to complete the CHC checklist properly and then it was not truthful about its actions. She also said it delayed providing Mr E with urgent care.
28. The Council responded to Mrs D’s complaint. It said it failed to complete its part of the assessment process towards CHC funding and its communication with her about it was incorrect. It also said it did not respond quickly to her request for urgent support. It apologised for the upset caused. It also said it would waive the outstanding fees of £1,574.15 for Mr E’s domiciliary care from July to November 2022. It said Mr E’s assessed contribution of £5,733.71 for care at the nursing home needed to be paid.
29. The Council agreed to complete a new CHC checklist. The outcome was Mr E was not eligible for CHC, but he is eligible for FNC.

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Analysis

30. The Council accepts it delayed providing Mr E with a nursing home placement, it failed to complete the CHC checklist properly and its communication with Mrs D about the matter was not accurate. When the Council responded to my enquiries, it also accepted its review of Mr E’s care needs in September 2022 was poor in quality and it unrealistically proposed domiciliary care should continue. I agree the Council was at fault, and this has caused distress, upset and uncertainty to Mr E and Mrs D at a very difficult time. The Council has apologised for the upset caused and has waived the domiciliary care fees. My role is to consider whether this is sufficient to remedy the injustice caused.
31. Mrs D wants the Council to complete a retrospective CHC assessment from when Mr E went into the nursing home in November 2022. She also wants it to waive the outstanding nursing home fees. The Council told Mrs D any assessment must be of a person’s needs at the time. When the Council responded to my enquiries it said the local CHC team would not normally agree to retrospective assessments and from its experience it would have been declined.
32. Mrs D contacted the CHC team about a retrospective assessment during my investigation. A member of staff asked Mrs D to provide further information so it could consider her application. Therefore, it is clear the CHC team can consider such requests. The Council made assumptions about what the CHC team will and will not do, rather than making its own enquiries. This is fault.
33. However, we cannot say with any certainty what the outcome would have been if the Council had completed the CHC checklist properly at the outset. We also do not know what the outcome of the CHC retrospective assessment will be until the NHS considers Mrs D’s application. If Mrs D is unhappy with the outcome of the retrospective assessment, she will need to raise the matter directly with the NHS. Therefore, I consider the Council’s offer to waive the domiciliary care fees is sufficient to remedy Mr E’s injustice from the fault I have set out in this decision statement and is in line with our guidance on remedies. I do not recommend anything further for Mr E.
34. However, the Council should also make a separate payment to Mrs D. The case records show she was actively chasing the Council for a care home placement for Mr E. The Council’s delay in resolving the placement caused her distress. Its failure to be truthful about the CHC process came as a shock and she has put been to further convenience and frustration contacting the CHC team about the retrospective assessment after the Council told it would not be possible.

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Agreed action

35. By 3 April 2024 the Council has agreed to:

• Apologise to Mrs D to recognise her distress, inconvenience and frustration.
• Pay Mrs D £250.

36. By 2 May 2024 the Council will issue written reminders to relevant staff to ensure that when a service user or their representative asks about a retrospective CHC assessment, they should make the appropriate enquiries with the NHS department to see if this is a possibility.
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. There was fault by the Council, which has caused an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman