Summary: Mrs B’s complaint followed a meeting she attended with the Council in August 2023 when it assessed her mother’s care needs. We upheld her complaint, finding neither she nor her mother knew the reasons for that assessment. We also find the Council later provided wrong information in reply to a complaint. These faults caused injustice to Mrs B as distress. The Council has accepted these findings and agreed to remedy Mrs B’s injustice. It has also agreed to make service improvements to improve its practice following this complaint. We set out details at the end of this statement.

The complaint

1. Mrs B’s complaint concerned her mother Mrs C, who recently died and was formerly a resident in a nursing home in the Council’s area. Mrs B complained the Council:

• wrongly recorded that she and Mrs C attended a meeting in July 2023, arranged by an Integrated Care Board (ICB). That meeting resolved that Mrs C was no longer entitled to receive NHS continuing healthcare (CHC) funding for her nursing care;
• did not explain why it arranged a subsequent meeting between Mrs B, Mrs C and a social worker in August 2023. Mrs B also said this did not follow national framework guidelines, relevant to decisions around CHC funding;
• its social worker inappropriately pressured Mrs B and Mrs C to sign a declaration on a financial assessment form during the August 2023 meeting.

2. Mrs B said these faults by the Council contributed to the ICB’s decision to withdraw CHC funding for Mrs C’s care. She said as a result Mrs C suffered anxiety about her care funding. Mrs B also said both she and Mrs C lost confidence in the Council.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as Integrated Care Boards. (Local Government Act 1974, sections 25 and 34(1), as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
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)

Back to top

How I considered this complaint

7. Before issuing this decision statement I considered:

• Mrs B’s complaint to the Ombudsman and any supporting information she provided;
• Mrs B’s earlier complaint to the Council and its reply;
• records sent to us by the Council in reply to our enquiries;
• any relevant law or Government guidance as set out below;
• any relevant guidance published by the Ombudsman.

8. I gave Mrs B and the Council chance to comment on a draft version of this decision statement and provide any further evidence they considered relevant to its content. I took account of their responses to the draft decision statement before issuing this final version.

Back to top

What I found

Relevant legal and administrative considerations

NHS funding for care

9. Some people with long-term complex health needs, or assessed as being at end of life, qualify for continuing healthcare funding (CHC). This is where the NHS funds their health and social care.
10. Some people who do not qualify for continuing healthcare will still qualify for funded nursing care (FNC). This is when the NHS pays a flat rate towards the nursing care component of nursing home fees.
11. A national framework sets out the principles and procedure for NHS funding through both CHC and FNC. It sets out how NHS funding bodies decide if an individual is, or remains, eligible to receive CHC funding.
12. The framework explains the NHS will review CHC funding at least once a year. And that any review will consider the most recently completed ‘decision support tool’ (DST). The DST is an assessment that looks at an individual’s needs across different domains such as breathing, nutrition, continence and so on. If the individual’s needs in particular domains, or across several domains, cross designated thresholds they qualify for CHC or FNC funding.
13. The framework says that when the NHS currently provides care services through CHC funding, “it may be beneficial” for the individual’s local authority to attend a review. This is when “there is an indication of a possible need for a care and support act assessment as part of the review process”.
14. The framework says it is a “core principle” the NHS does not withdraw funding without consulting the individual and their local council. This is so, if there is a change in eligibility to NHS funding, “alternative funding arrangements are agreed and put into effect before any withdrawal of existing funding”.

Local authority funding for care

15. 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 any other person they might want involved.
16. Sections 14 and 17 of the Care Act 2014 provide the legal framework for charging for care and support. The Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the charging rules for residential care (including nursing care). Councils should also take account of the Care and Support Statutory Guidance published by Government.
17. When the Council arranges a care home placement, it must undertake a financial assessment to decide how much a person should pay towards the cost of their care. The guidance says an assessment can be ‘light touch’, including where an individual has capital above the ‘upper capital limit’ (currently £23,250).
18. People who have more than the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they pay an assessed contribution towards their fees.
19. Annex B of the Care and Support Statutory Guidance sets out the rules on what councils treat as ‘capital’ in a financial assessment. It usually includes the value of any property the person owns, subject to some exceptions. One exception is the ’12 week disregard’ where the Council will ignore the value of someone’s home for 12 weeks in the following circumstances:

• when they first enter a care home as a permanent resident; or
• when a property disregard other than the 12 week property disregard unexpectedly ends because a ‘qualifying relative’ living in the home has died or moved into a care home.

20. The guidance goes on to explain that councils also have discretion to apply the 12 week disregard in other circumstances. It says this includes “when there is a sudden and unexpected change in the person’s financial circumstances”.

Key facts

21. Mrs C entered nursing care in 2020 with CHC funding. In July 2023 the ICB carried out a review of her eligibility to continue to receive this. A meeting took place at Mrs C’s nursing home attended by a representative of the ICB, a social worker and representatives from the nursing home. Case notes kept by the Council described this as a “DST assessment”, which the ICB arranged. I have seen no record Mrs B or Mrs C knew of this meeting in advance nor the ICB inviting them to attend.
22. The meeting recorded that Mrs C no longer had eligibility to receive CHC funding. As an outcome to that meeting, the social worker said they would therefore undertake a care assessment. Mrs B has said that both she and Mrs C received some contact from the ICB after the meeting. But it did not explain that it had reviewed Mrs C’s CHC funding nor that it planned to end this.
23. The social worker went on to arrange the care assessment and spoke to Mrs B before it took place, who attended. Mrs B nor Mrs C still did not know about the July 2023 DST assessment or its outcome. Consequently, Mrs B said she and Mrs C did not know the meeting’s purpose. They understood it had a connection to the funding of Mrs C’s placement and assumed it took place under the national framework for NHS funding reviews. However, Mrs B says when she asked the social worker about the national framework, they said they did not know what Mrs B was referring to.
24. During the assessment the social worker went through Mrs C’s care needs and decided she had eligible needs under the Care Act, which the nursing home could meet. There was also some discussion around undertaking a financial assessment. Mrs B helped manage Mrs C’s finances but had no financial information with her at the meeting, not knowing she may need to bring this.
25. Mrs B says at the meeting the social worker put pressure on Mrs C to sign a declaration on a form that contains basic information about an individual’s finances. During the meeting Mrs C told the social worker she owned a property. But Mrs B also says at the time her savings had gone below the upper capital threshold.
26. Mrs B said the social worker was reluctant to let her and Mrs C read the form or complete it later. She wanted Mrs C to sign a declaration that she had capital above the upper limit and would therefore meet the costs of her own care. Mrs B said she and Mrs C challenged the social worker’s conduct. They also asked general questions about the financial assessment which the social worker could not answer. In particular, Mrs B said they wanted to know if Mrs C had to pay her costs of ‘care’, what this would cover.
27. The social worker’s notes of the meeting are brief. They said that Mrs C owned a property but gave few details about that. And that Mrs B said, “she would like to speak directly with Financial Team as the way that [Mrs C’s] financial needs will be met in future will depend on some financial aspects”.
28. Later, Mrs B spoke with a finance officer who recorded that Mrs C had capital above the upper capital limit. The notes suggested it might therefore be a “waste of time” completing a financial assessment.
29. In October 2023 the ICB sent a letter to Mrs B confirming the outcome of the July meeting and that it would be withdrawing CHC funding. This letter explained that in some circumstances individuals could receive funding from their local council and when this might apply (including details of the upper capital limit).
30. After Mrs B received this letter, the Council again contacted her about Mrs C completing a financial assessment. Mrs B returned the financial assessment. Mrs C signed that she had capital above the upper capital limit. She said she would pay the full cost of her care on the understanding the NHS would pay nursing care costs and only from the date of the ICB decision. Mrs B said at that time she did not know about the 12 week property disregard. However, she later heard about it and questioned if the Council should have referred to it during its discussions with her.
31. Following the ICB decision, Mrs B appealed it, attending a local resolution meeting with the ICB in April 2024. The outcome of that was the ICB confirmed its earlier decision. It gave Mrs B details of how she could further appeal its decision and that appeal remains outstanding. Meanwhile, care fees for Mrs C’s stay at the nursing home following the CHC funding ending, remained unpaid at the date of this decision.

Mrs B’s complaint

32. Following the outcome of the local resolution meeting, Mrs B complained to the Council in similar terms to that summarised in paragraph 1. In its reply the Council said that Mrs B and Mrs C had attended the meeting in July 2023 arranged by the ICB. It explained the decision to withdraw CHC funding was that of the ICB and gave Mrs B details of how to appeal it. It recognised it would have helped Mrs B to see the ICB’s decision in writing before the social worker completed their assessment in August. The Council said it would consider “what leaflets or letters should be developed” to improve communications around this matter.
33. It defended the information provided by the social worker and its finance officer around the financial assessment form.

My findings

34. I could not fault the Council for Mrs B and Mrs C not receiving an invite to the critical DST assessment that took place in July 2023. I am satisfied the Council was not responsible for telling Mrs B and Mrs C about the review, nor sending invites for the meeting. Those responsibilities rested with the ICB.
35. It was also the ICB’s responsibility to tell Mrs B and Mrs C the outcome of the DST assessment. However, at the beginning of August 2023, when Mrs B and Mrs C met with the Council’s social worker it had not done so. So, they did not have a clear understanding of why the social worker had asked to assess Mrs C’s needs.
36. There was no fault in the Council undertaking that assessment, which followed the decision to end CHC funding. But it was a fault that Mrs B and Mrs C came away from that meeting still not knowing its purpose. This should not have happened given the Council’s social worker was party to the decision taken in July to remove Mrs C’s CHC funding. I consider the social worker may not have wanted to give unwelcome news about the ICB’s decision. But weighed against that they had to consider the need for openness and transparency, so Mrs B and Mrs C understood what was happening.
37. I considered this fault went on to influence the remainder of that meeting when the question of a financial assessment arose. Mrs B provided me with her contemporaneous notes which were clear and detailed. I had no reason to doubt her account the social worker asked Mrs C to sign a financial declaration. A reasonable inference is the social worker understood Mrs C owned her own home and so had capital about the upper threshold. I assume their intent was to complete a light touch assessment. Government guidance encourages that financial assessments should run alongside a care needs assessment and can be ‘light touch’, for example, where it is clear an individual has capital above the upper threshold.
38. But I could also understand why Mrs B and Mrs C would not want to sign any document without understanding its purpose or implications. I reiterate they did not know the ICB planned to withdraw Mrs C’s funding and they had no prior knowledge of circumstances when the Council might pick up funding instead. Reasonably they would also want to know if Mrs C had to pay all her care fees, or just a proportion. Again, I considered there was some fault by the Council in the lack of explanation and transparency it provided.
39. Over the following weeks, I considered the Council largely clarified matters. But I noted Mrs B’s concern that in conversations with the social worker and finance officers, there was no mention of the 12 week property disregard. Mrs C had no automatic entitlement to this. She had been a permanent resident at the nursing home for some time and no ‘qualifying adult’ lived in her former home (such as a spouse or adult child over 60). But the Council could have advised of its discretion to still consider such a disregard. I considered it was fault it did not do so.
40. Given the events above, it is understandable Mrs B went on to make a complaint. Unfortunately, that experience only compounded the faults identified above, because the reply added more confusion. The Council wrongly told Mrs B that she and Mrs C were at the critical DST assessment in July 2023. This was despite the Council’s notes confirming the opposite. Providing inaccurate information in reply to the complaint was another fault by the Council.
41. I considered the Council’s faults caused Mrs B and Mrs C injustice. They had unnecessary distress, as uncertainty. This flowed first from not understanding the decisions taken around funding of Mrs C’s care which the Council knew. Second from not understanding the purpose of the Council’s assessments (both care needs and financial). And third, through an understandable questioning of the reliability of the Council’s records.
42. I consider investigation of this complaint has helped end the uncertainties above. But there remains some lasting uncertainty about whether, if Mrs B does not succeed in appealing the CHC funding withdrawal, Mrs C could have qualified for any financial help from the Council. This could apply if the Council were to use its discretion to apply a 12 week disregard to the value of Mrs C’s property - not something it has previously considered. This was something I took account of when deciding what action the Council should take to remedy the injustice in this case.
43. I could not say the injustice in this case extended to any decisions taken by the ICB. I found no evidence that any fault by the Council resulted in it giving any wrong information to the ICB that affected its decision to withdraw CHC funding.

Back to top

Agreed action

44. The Council has accepted the findings above. To Mrs B’s injustice it has agreed that within 20 working days of this decision, it will:
1. provide a written apology to Mrs B, accepting our findings in this case and in line with our published guidance on remedies (see section 3.2 of that document);
2. make a symbolic payment to Mrs B of £250 in recognition of the distress its actions caused her;
3. provide a written commitment to Mrs B, that if her appeal against the withdrawal of CHC funding is not upheld, it will reconsider whether Mrs C may have received the 12 week property disregard as part of a financial assessment. This would be through consideration of applying a discretionary disregard. For clarity, any commitment here does not bind the Council to apply the disregard but to commit to making a reasoned decision on whether it should apply it.
45. In addition, the Council also agreed to make service improvements to try and avoid a repeat of what went wrong here. Within two months of a decision on this complaint it has agreed:

• to complete a review of the communications it has with users of services and their relatives, when it assesses care needs following an NHS decision to withdraw CHC funding. It will invite the ICB’s involvement in that review. Its purpose should be to ensure that users of services and their relatives understand why the Council needs to assess their care needs and provide basic information about when it might begin funding needs. These actions will build on its earlier commitment to review written materials given to Mrs B in reply to her complaint.

46. Following the review and within three months of this decision, the Council has also agreed ensure all social work staff affected should receive a briefing (in writing or in person) to set out the Council’s expectations. That should highlight the main learning point from this complaint should be to provide transparency and openness about the Council's involvement in such cases.
47. The Council will provide us with evidence it has complied with the actions set out in paragraphs 44 to 46.

Back to top

Final decision

48. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mrs B. The Council accepted these findings and agreed to take action that I considered would remedy that injustice. Consequently, I completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman