Summary: Mrs C complained of poor communication by the Council about how the costs of her late father’s care in a nursing home would be funded. Mrs C says this caused avoidable anxiety and distress. We have found fault by the Council but consider the action it has already taken of an apology and improvements to its communication process provides a suitable remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs C, complains of poor communication by the Council about how the costs of her late father’s care in a nursing home would be funded after his discharge from hospital. In particular, Mrs C says the Council failed to provide enough or timely information about the process.
2. Mrs C says because of the Council’s fault both she and her elderly mother suffered avoidable anxiety and distress.

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The Ombudsman’s role and powers

3. 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)
4. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

5. When considering complaints 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.
6. 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

7. I read the papers provided by Mrs C and discussed the complaint with her. I have also considered information from the Council. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.

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What I found

Relevant law and guidance

Charging rules

8. 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.
9. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.

NHS Continuing Healthcare Assessments

10. 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.
11. Individuals may need care and support provided by their local council and/or services arranged by ICSs. Councils and ICSs therefore have a responsibility to ensure the assessment of eligibility for care and support and for CHC respectively take place in a timely and consistent manner. If, following an assessment, a person is not found to be eligible for NHS CHC, the NHS may still have a responsibility to contribute to that person’s health needs, either by directly commissioning services or by part-funding the package of support. Where a package of support is commissioned or funded by both a council and an ICS, this is known as a ‘joint package of care’. A joint package of care could include NHS-funded nursing care and other NHS services that are beyond the powers of a council to meet.
12. Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.
13. Sometimes a patient can be ready to leave hospital but not well enough to return to their previous place of residence. In these circumstances patients will be discharged through the Discharge to Assess (D2A) pathway into a nursing home to receive additional support and further assessment.

What happened

14. Mrs C’s father had been admitted to hospital in August 2022. There was a telephone discussion between Mrs C and the Council on 1 September about her father’s future discharge from hospital. The notes record a discussion about various residential homes and that some would require a top up fee. Mrs C raised her concern that her father may need nursing care. The Council spoke with the hospital team who agreed to reassess whether residential or nursing care was required. The Council provided an update to Mrs C about his action.
15. The Council’s records show an email was sent to Mrs C on 15 September about her father’s discharge placement and which provided a copy of its factsheet ‘Paying for your health and social care services following your discharge from hospital ’ and a copy of its Sustainability Assessment form for ‘top up’ accommodation charges. Mrs C returned the completed Sustainability Assessment form to the Council.
16. The factsheet provided to Mrs C explained that following discharge from hospital a person may have to pay towards the services received depending on whether the primary support need was health or social care related. The factsheet goes to explain the different types of services and whether a person might have to make a contribution. This included the following:

“If you are discharged to a nursing home, the NHS will need to confirm if you are entitled to Continuing Health Care (CHC) funding. A CHC assessment will determine if your primary support reason is health related.

Your CHC assessment will usually be completed within 4 weeks. If the outcome of the assessment is that your needs should be fully funded by the NHS, you will not have to pay towards your care. If the assessment identifies that you only require an element of your placement to be funded by the NHS or you do not meet the criteria for CHC funding, you will have to complete an adult social care financial assessment to determine how much you will have to pay. This will include the period whilst your CHC assessment was completed.

Whilst in residential or nursing care, should you opt to pay a ‘top-up’ to purchase more expensive care whilst receiving support from adult social care, then either yourself or a third party will be responsible for paying these costs. All top-ups are subject to a sustainability assessment to understand if the costs are affordable.”

17. Mrs C’s father was discharged from hospital into a nursing unit of a residential placement on 15 September. The case notes record that the placement was a ‘discharge to assess placement’ which was due to be funded for up to the first 28 days.
18. The CHC assessment was completed on 28 September. This confirmed Mrs C’s father met the criteria for Funded Nursing Care contributions but did not meet the criteria for CHC funding. This meant from 29 September the care should have been commissioned by the Council and Mrs C’s father would have needed to contribute towards the costs as appropriate depending on the outcome of a financial assessment. However, this assessment was not provided to the Council or Mrs C at the time.
19. The Council contacted Mrs C about completing a financial assessment on 7 November. Mrs C explained her father had been readmitted to hospital on 4 November and she was not able to compete the financial assessment at that time. The Council contacted Mrs C on 17 November for an update. Mrs C explained her father was receiving end of life care at the hospital and would not be returning to the residential nursing home. The Council apologised for the timing of the call. Mrs C said she had understood her father should be CHC funded and the Council agreed to look into that and email any updates. The Council has accepted that this follow-up action did not happen until January 2023 and provided an apology during its complaint correspondence with Mrs C.
20. Mrs C raised a concern during a telephone discussion with the Council on 5 January 2023 about the need for a financial assessment as she had understood her father was CHC funded. The Council explained the nursing element of the placement was funded by the NHS but there may still be a contribution required towards his care depending on the outcome of a financial assessment.
21. The Council contacted Mrs C on 16 January to confirm the financial assessment for her late father’s care remained outstanding. This noted Mrs C was disputing the funding arrangements as she considered her father should have been fully CHC funded. The Council explained it still needed to complete a financial assessment in the event the outcome remained that he was not eligible for CHC funding. The Council noted the CHC funding decision was a matter for the relevant Integrated Care Board (ICB). The Council provided 10 working days for the required information and explained if this was not received it would complete a light touch assessment and the full cost charges would be applied. The Council also explained that if the outcome of the CHC funding dispute was that Mrs C’s late father was awarded full funding there would be nothing to pay.
22. The Council received the CHC funding decision on 20 January. The Council completed a light tough financial assessment and provided a copy of this to Mrs C on 8 February.
23. Mrs C complained to the Council on 11 February 2023. Mrs C was unhappy the above letter from the Council dated 8 February 2023 had been sent to her address but was wrongly addressed to her late father. Mrs C also complained about the Council’s financial assessment decision when she had not provided any information. Mrs C said she had been told there would be no charge for 28 days and then only a top up fee.
24. The Council responded to Mrs C’s complaint on 2 March. The Council set out the chronology of events and explained how to seek a review of the financial assessment. The Council did not address the part of Mrs C’s complaint about how its correspondence had been addressed. Mrs C remained unhappy with the Council’s response and escalated her complaint.
25. The Council provided a final complaint response to Mrs C on 15 June. The Council explained that once it had made a referral for a CHC assessment on 15 September the outcome was a matter for the ICB. The Council explained the placement was for an assessment which meant it was funded for up to the first 28 days. The Council acknowledged it had agreed to contact the ICB about the outcome of the assessment during its telephone discussion with Mrs C on 17 November but did not do so until January 2023. The Council apologised for the delay and frustration caused.
26. In responding to the Ombudsman, the Council says its letter of 8 February 2023 was a standard letter produced by its social care database and provided an apology for the upset caused by the way it was addressed. The Council has also confirmed it is conducting a ‘health check’ of its social care database and, as part of this, financial assessment letters will be reviewed, including where such letters need to be sent following the death of a service user. The Ombudsman would welcome this action.

My consideration

27. The care for Mrs C’s late father was to be funded for up to 28 days to allow time for a CHC assessment to be completed. In the event, Mrs C’s father was discharged on 15 September and the assessment was completed on 28 September.
    
28. The assessment confirmed Mrs C’s father met the criteria for Funded Nursing Care contributions but did not meet the criteria for CHC funding. This meant from 29 September the care should have been commissioned by the Council and Mrs C’s father would have needed to contribute towards the costs as appropriate depending on the outcome of a financial assessment.
29. The ICB was solely responsible for the decision about Mrs C’s father’s eligibility for CHC. The decision was not communicated to Mrs C or the Council at the time it was made.
30. The Council has provided evidence it gave Mrs C clear information about how her father’s care may be funded including the need for a financial assessment which would come into effect if the care was not to be CHC funded. I have seen no evidence of fault by the Council here.
31. However, the Council has accepted it agreed to chase up the outcome of the CHC assessment on 17 November 2022 but did not do so. Although this is fault, I do not consider it caused a particular injustice to Mrs C and her family requiring a remedy beyond the apology already provided by the Council.
32. If the Council had followed up the outcome of the CHC assessment in November as promised we can reasonably assume it would have been advised of the earlier decision that Mrs C’s father was not eligible for CHC funding and passed this information to Mrs C. By this time, Mrs C’s father had already been readmitted to hospital and sadly did not return to the residential placement.
33. The Council had sought information for a financial assessment but Mrs C did not provide this as she considered her father would be eligible for CHC funding. This is regrettable but I cannot say the Council acted with fault in seeking this information or in completing a light touch assessment in the absence of the requested information. As long as the decision remained that Mrs C’s father was not eligible for CHC funding the Council was entitled to consider and assess whether he should pay for his care or pay a contribution toward the cost of it. The Council provided details to Mrs C of how to seek a review of the financial assessment but Mrs C did not seek such a review which would have allowed the opportunity to provide any information she wished the Council to consider.
34. The Council has also accepted fault in the way it addressed correspondence to Mrs C after her father had died and apologised for the upset this would have caused and taken steps to avoid a recurrence. I am satisfied this provides a suitable remedy.

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Final decision

35. I have completed my investigation as I have found fault by the Council but consider the action it has already taken provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman