Summary: Mrs X complained the Council failed to inform her when she became responsible for paying for her care. We find the Council at fault for failing to transfer her to the appropriate team for a financial assessment and for poor record keeping. This has caused avoidable uncertainty. The Council agreed to apologise to Mrs X and pay her its proposed financial remedy.

The complaint

1. Mrs X complained the Council failed to inform her when she became responsible for the cost of her care.
2. She says this caused her distress, left her with a substantial debt, and meant she was unaware she could apply for attendance allowance.

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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. 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.
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 evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
7. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Discharge to Assess

8. Discharge to Assess (D2A) is a process designed to support and fund individuals to leave hospital when it is safe and appropriate, with their care and assessment continuing out of hospital. Under the Council’s Pathway 3, individuals with needs that go beyond the duties outlined in Section 22 of the Care Act 2014, and who therefore may be eligible for NHS Continuing Healthcare (CHC), are discharged to a nursing home. This discharge process is led by the Hampshire and Isle of Wight Healthcare Trust.

NHS Continuing Healthcare Assessments

9. 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.
10. Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.

NHS-Funding Nursing Care

11. 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.

Charging for permanent residential care

12. 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.
13. 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 pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

What happened

14. In early 2023, after a hospital stay, Mrs X was discharged to a care home under the D2A process. Her discharge was managed by the Isle of Wight Healthcare Trust due to her care needs and potential eligibility for CHC funding. The Council was not involved in Mrs X’s discharge or placement at that time.
15. Later that year, a CHC assessment concluded that Mrs X was not eligible for full NHS-funded care. However, she was found to have nursing care needs and was eligible for FNC. Letters informing Mrs X and the care home of the outcome were sent.
16. Three months later, a review confirmed Mrs X remained eligible for FNC contributions.
17. In 2024, the care home contacted the Council, reporting that it had not received any payment for Mrs X’s care fees. The Council discovered that she had not been transferred to the Council’s social work team after the CHC decision, and no financial assessment had been carried out.
18. The Council visited Mrs X, explained the situation, and arranged an urgent financial assessment.
19. A month later, the financial assessment was completed. It concluded that Mrs X had savings above the upper capital limit and was responsible for the full cost of her care (minus the FNC contribution), backdated to mid-2023.
20. Mrs X complained to the Council, stating she had not been informed she was liable for the fees and requested a reduction, as the error was not her fault.
21. The Council did not uphold her complaint, stating that she had been informed in the CHC assessment and the later three-month review that she was not eligible for CHC funding.
22. A month later, the Council assisted Mrs X in applying for her state pension and relevant benefits.
23. Mrs X then escalated her complaint, saying she had not received any letters and had been unaware of potential benefit entitlement, possibly losing out on significant funds.
24. The Council issued its final complaint response. It acknowledged her claims but said records showed the letters were sent and that she had been verbally informed of being responsible for the cost of her care. It also stated that providing benefits advice was not the responsibility of a social worker.
25. Later that month, the Council offered Mrs X £1,000 to recognise the errors made.
26. In response to my enquiries, the Council clarified the £1,000 offer was made to reflect the ambiguity over who was responsible for transferring Mrs X to the Council’s social work team.
27. The Council said that during the CHC assessment process, Mrs X informed the CHC nurse that she had savings exceeding £23,250. The CHC nurse then advised Mrs X that she would be responsible for paying the full cost of her care. However, this conversation was not recorded in writing and there are no case notes to evidence it.
28. The Council was unable to confirm who held responsibility for transferring individuals to the Council’s social work team after being found ineligible for CHC funding, as the previous process ended in 2023. However, the Council said it believes the CHC nurse was the lead professional at the time and therefore responsible for initiating the referral and financial assessment. It also confirmed that the CHC team is managed by the Council.

My findings

29. Following the CHC assessment in mid-2023, Mrs X was found ineligible for full NHS-funded care but eligible for FNC. At that point, she should have been transferred to the Council’s social work team and offered a financial assessment. This did not happen which is fault.
30. Although the Council initially stated there was ambiguity around who was responsible for transferring Mrs X to the Council’s social work team, it has since clarified that the CHC team is managed by the Council and that the CHC nurse was the lead professional involved. Therefore, the responsibility for ensuring Mrs X was transferred for a financial assessment rested with the Council.
31. The Council says that the CHC nurse discussed financial responsibilities with Mrs X during the assessment. However, there is no record of this conversation. The lack of documentation is fault.
32. If a financial assessment had been carried out at that time, the Council would have determined that Mrs X was a self-funder as her savings exceeded the upper capital limit. She would have been informed of her financial responsibilities earlier, avoiding the later distress.
33. During a financial assessment, the Council should also inform individuals about any benefits they may be eligible for, though this is not the only source of such information. While I cannot say, even on the balance of probabilities, whether Mrs X would have applied for or been entitled to benefits at that time, the failure to offer the assessment leaves uncertainty about whether she could have accessed certain benefits sooner.
34. Once the Council became aware in 2024 that the home was not receiving payment for Mrs X’s care, it acted quickly and appropriately. It visited her, conducted an urgent financial assessment, and clearly communicated her care costs and outstanding charges. I find no fault with the Council’s actions from this point onwards.
35. The Council offered Mrs X £1,000 in recognition of the failure to transfer her for assessment. I have considered whether this remedy is in line with the expectations set out in our Guidance on Remedies. In my view, the amount offered exceeds what I would normally recommend in the circumstances. I therefore do not recommend any further remedy.
36. I have not recommended any action for the Council to take to improve its services as the relevant process was updated in 2023.

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Action

37. To remedy the injustice caused by the above faults, within four weeks of the date of my final decision, the Council has agreed to:
• apologise to Mrs X for the distress and uncertainty caused by the Council’s faults; and
• pay Mrs X its proposed remedy of £1,000.
38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman