Summary: There is no evidence that fault on the part of the Council caused the injustice which Ms X claims. Although delays in passing on information about her father’s death delayed the updating of a financial assessment, and the Council should recognise the distress that caused, it was not the fault of the Council that Mrs A, who was in a residential and not a nursing placement at the care home, was not referred to the NHS for a Continuing Health Care assessment.

The complaint

1. Ms X (the complainant) says the Council failed to refer her late mother Mrs A for a Continuing Health Care (CHC assessment) even though her GP had indicated she was on end-of-life care. She also complains about the Council’s failure to carry out an annual review in 2022 and delay in passing on information about her father’s death, which affected the financial assessment.

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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(1), as amended)

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How I considered this complaint

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

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What I found

Relevant law and guidance

6. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
7. 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.
8. 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.
9. 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.
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. Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.
12. 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.
13. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.

What happened

14. Mrs A was discharged from hospital to a care home in May 2020. Mrs A had dementia and was no longer able to manage at home. Until December 2020 her care was funded under the government-sponsored Covid funding scheme and discussions were held with Ms X about the likely fees going forward for both Mr and Mrs A (Mr A also became resident in the same care home) and the possibility that a third-party top-up fee would be needed. In the event no top-up payment was required.
15. Mr A died in December 2020. Although Ms X completed a ‘tell us once” form the information was not received by the relevant Council department.
16. A social worker carried out a review of Mrs A’s care in September 2021 when the care home manager explained that Mr A had died. It was agreed that the care arrangements for Mrs A were still appropriate. The social worker did not inform the Council’s finance department of Mr A’s death.
17. Mrs A’s GP visited in April 2022 and concluded that Mrs A had reached the phase of end of life. She was cared for in her room, in bed. The Council did not carry out an annual review of her care as it should have done in 2022.
18. A social worker carried out a review of Mrs A’s care needs in August 2023. Mrs A was still deemed to be near the end of her life but the care home manager told the social worker that Mrs A’s needs had stabilised somewhat. The social worker advised the care home manager to contact the GP to consider fast-tracking NHS CHC funding if Mrs A’s health deteriorated.
19. After the August 2023 review the social worker notified the Council’s finance services that Mr A had died in 2020 and a new financial assessment form was sent to Ms X (who held power of attorney for her mother’s finances and health and welfare) for completion.
20. The Council’s records note a telephone conversation between a finance officer and Ms X in November 2023. He explained that it was likely Mrs A should have been funding her own placement as she jointly owned a property with the late Mr A. Ms X said the property had now been sold and Mrs A had received £162k from the sale. The finance officer explained that as the placement would have been chargeable from the start given the property ownership, he would now calculate the due payments minus the contributions Mrs A had been making and a 12-week property disregard period. Ms X said her mother was on end-of-life care from April 2022 and should have been NHS funded from then.
21. The finance officer spoke to a social worker about the placement. He noted that “while end of life care had been discussed at previous assessments, it would appear that (Mrs A) was not eligible for NHS funding. I was advised that this would have been initiated by the GP”. Finally, he noted on the file that if the 12-week property disregard was approved, he would apply the full charge from 2 March 2021 (12 weeks after the placement was made permanent).
22. Mrs A died in January 2024. The Council issued an invoice for £138,136.
23. Ms X complained to the Council. She maintained that Mrs A should have been funded by the NHS from April 2022 when the GP indicated she was on end-of-life care and that the Council was at fault for failing to make a referral for CHC funding then. She said no-one from the Council had reviewed her mother’s care needs. She said the Council had charged them more for Mrs A’s room than the private costs would have been.
24. The Council responded. It said there was no record that the GP had referred, or suggested referring, Mrs A for a CHC assessment. There was a record that the reviewing social worker had indicated to the care home manager this should be done if Mrs A’s condition deteriorated but that had not happened. The Council noted Ms X was involved in her mother’s review in 2023 and had signed and returned the agreed new care plan. It did not uphold this aspect of the complaint.
25. The Council apologised that no new financial assessment had been completed once the social worker leaned of Mr A’s death. It also apologised that the Council had not carried out a care needs review in 2022 as it should have done, and it partly upheld this aspect of the complaint.
26. Ms X complained to the Ombudsman about the Council’s decision. She said her mother had complex medical needs from April 2022 onwards and this was evidenced by the care notes saying Mrs A had been ‘nursed in bed’ which showed she had not been in a residential placement then. She said the care was not appropriate for Mrs A’s needs. She indicated the most she should pay was the invoice amount minus the amount of an FNC award. She also complained about the delay in completing a DoLS authorisation for her mother.
27. The Council says it recognises it failed to meet its statutory duty by not conducting a review of Mrs A’s care in 2022. It says this was in part due to the impact of the pandemic but acknowledges this did not meet the professional standards it should have met.
28. The Council says there is no evidence the GP considered Mrs A should have been assessed for CHC funding or fast-track funding.
29. The Council has provided evidence of its completion of the DoLS prioritisation tool in respect of Mrs A who was assessed as of medium priority.

Analysis

30. If the visiting GP considered Mrs A required a CHC assessment then it was up to them to refer her directly or to notify the care home manager of the Council to do so. However, Mrs A was admitted to the care home on a residential placement and that did not change. It appears that at no time was she deemed to be in need of a nursing placement in the sense that she required the presence of a registered nurse to be available at all times. Any minor nursing needs were attended to by the District Nursing team. In any event, it is the role of the NHS Independent Review Panel to judge whether there is a case for retrospective funding either of CHC or of FNC.
31. The Council recognises there was fault in its failure to carry out a review in 2022. Any injustice to Mrs A which arose from that failure however cannot now be remedied.
32. The Council also acknowledges the delay in resolving the financial assessment once it was aware of Mr A’s death. That could have been resolved much earlier and the amount of the invoice for unpaid charges been much smaller and less of a shock. The Council should recognise that now in my view.

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Action

33. Within one month of my final decision the Council will offer Ms X the sum of £500 in recognition of the distress caused by the belated invoice for Mrs A’s care home charges.
34. The Council should provide us with evidence it has complied with the above actions.

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Decision

35. I have completed this investigation on the basis that I find some fault causing injustice, which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman