Summary: There is evidence that consideration was given to Mrs X’s eligibility for CHC funding while she was in hospital and subsequently. The first four weeks of her residential placement were funded by the NHS but afterwards she was responsible for funding her own care.

The complaint

1. Mr A complains that the Council failed to complete a CHC assessment for his late mother Mrs X, and also that she was charged for a period of time before her needs assessment was complete.

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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 Mr A and by the Council. Both parties had an opportunity to comment on a draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. 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.
6. 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.
7. 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. 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 (presently £23,250) must pay the full cost of their residential care home fees.
8. Annex D of the Hospital Discharge and Community Support Guidance explains the different pathways for discharge from hospital. Pathway 3 is defined as being used -

“In rare circumstances, for those with the highest level of complex needs, discharge to a care home placement co-ordinated through the care transfer hub, including:

care home placement for assessment of long-term or ongoing needs and facilitation of patient choice in relation to the permanent placement

long-term care and support in a care home following a period of intermediate care in the community”.

9. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
10. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.

There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

What happened

11. Mrs X was discharged from hospital to a care home on a short stay placement on 3 March 2022. Her care was funded until 31 March by the NHS. The records show the Council provided a copy of its ‘Paying for Care’ booklet to Mrs X’s daughter on 29 March.
12. At the time she left hospital Mrs X lacked capacity to make her own decisions about her care. No-one had power of attorney for her affairs. She was discharged on pathway 3. The Council says, “Due to local processes and legislation we don’t discharge people who lack capacity on “Discharge to assess”, we need to complete the full assessment inclusive of MCA and Best interest decision to be able to discharge someone safely and on the least restrictive pathway. We very rarely make long term residential placements from hospital to allow people time to recover and potentially regain capacity after and infection hence the plan to discharge under short stay with a review arranged timely”.
13. The Council says a “trusted assessor referral form” had already been completed on the hospital ward on 12 February: “For the question regarding fast track funding and CHC referral required, both boxes were ticked as no. Health colleagues at the time felt that she did not meet the criteria.” The Council goes on to say that further assessment and funding request forms completed in hospital on separate occasions before Mrs X was discharged both answered ‘no’ to the question whether a CHC checklist would be required.
14. A social worker carried out a needs assessment of Mrs X in the care home on 29 April and concluded that she required long-term residential care. Mrs X’s daughter was present at the assessment and told the social worker that Mrs X had substantial savings above the £23,250 threshold and “as such when a legal power over finances is in place she will become a self-funder”. The assessment noted Mrs X had no additional health needs and concluded Mrs X would fund her own care going forward.
15. Mrs X sadly died in October 2022.

The complaint

16. In February 2023 Mr A complained to the Council after receiving an invoice for Mrs X’s care. He said the Discharge to Assess funding had never been properly explained to the family. He asked why Mrs X had not been eligible for CHC funding.
17. A deputy manager responded in March. She said she had noted that neither Mr A nor Mrs X’s daughter had been given a copy of the Council’s “Paying for Care and Support" booklet when Mrs X left hospital. She apologised and said a system had now been put in place to ensure the booklet was given at the appropriate time. However, she said the records showed that a copy of the booklet was given to Mrs X’s daughter on 29 March. She said Mrs X’s daughter had indicated then that Mrs X would be self-funding.
18. In respect of the charges the manager explained that Mrs X began to be charged from 1 April after NHS funding finished, as she was now classed as occupying a respite placement in advance of becoming a permanent resident. She said a CHC checklist had been completed at the review on 29 April and Mrs X was not eligible for funding.
19. The manager concluded that the invoice remained payable.
20. Mr A complained to the Ombudsman. He said at the time Mrs X was admitted to the care home, she lacked capacity to manage her own affairs and no-one had power of attorney. He said therefore that she could not have agreed to residence as a self-funder. He also complained that no proper procedure had been put in place to decide whether Mrs X was eligible for CHC funding. He says his sister was told the placement would be funded until a social worker was appointed.
21. The Council says that the checklist criteria were discussed with Mrs X’s daughter at the review in April, but no actual checklist was completed as there was no indication that Mrs X met the criteria.

Analysis

22. There is documentary evidence showing that Mrs X’s eligibility for CHC funding was considered at least 3 times before she left hospital and afterwards during the review at the care home. As Mrs X had no additional health needs, the physical completion of a checklist was not necessary. In any event it is the NHS, not the Council, which is responsible for CHC funding and any retrospective appeal against a decision not to award funding can only be considered by an NHS Independent Review Panel.
23. Whether a person lacks capacity to decide their health and welfare needs does not affect their status as a self-funder. What is relevant for that status is whether the individual has over the capital threshold of £23,250. Mrs X had more than the threshold amount and was therefore liable to pay for her own care once the NHS funding ceased.

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Final decision

I have completed this investigation. There was no fault by the Council in the way it administered the charging regulations.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman