Central Bedfordshire Council (20 010 840)

Category : Adult care services > COVID-19

Decision : Not upheld

Decision date : 03 Sep 2021

The Ombudsman's final decision:

Summary: The Council was not at fault in the way it retrospectively charged his aunt, Mrs A, for her residential care after she was discharged from hospital under the government COVID-19 hospital discharge service requirements.

The complaint

  1. Mr X complains the Council retrospectively charged his aunt, Mrs A, for her residential care after she was discharged from hospital under the government COVID-19 hospital discharge service requirements.
  2. Mr X said they were told this care would be free. He says the receipt of an unexpected bill for around £7,000 caused his aunt unnecessary distress and he has been caused time and trouble pursuing this complaint.

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The Ombudsman’s role and powers

  1. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  2. If we are satisfied with a council’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)
  3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

  1. I spoke to Mr X and considered his view of his complaint.
  2. We made enquiries of the Council and considered the information it provided. This included the letters sent to Mr X and Mrs A by the Council informing them of the new charging arrangements introduced by the government and complains correspondence.
  3. I considered the government guidance in place at the time the events in this complaint occurred.
  4. I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Discharge to assess under COVID-19

  1. From 19 March 2020, there was a requirement to free up hospital beds for the anticipated wave of COVID-19 admissions. Government guidance at that time ordered rapid discharge of all patients who were clinically ready to leave hospital, either to go home or to another place of care. Transfer from the wards was to take place within one hour to a designated discharge area and then discharge from hospital as soon as possible, and within two hours wherever possible.
  2. Where patients were discharged under this government guidance, the NHS fully funded the cost of new or extended out-of-hospital health and social care packages.
  3. For patients who needed to be discharged to a rehabilitation bed or care home, the guidance stated they would not be able to remain in hospital until their first choice of care home or placement had a vacancy. This meant some patients were discharged to an alternative care home until they were able to move to their preferred choice. The guidance stated the NHS would pay for this support.
  4. The guidance did not provide any information at the time it was released about how long the NHS would continue to pay for this support.
  5. The Council states it was informed by the government on 22 August that the scheme would end on 1 September and the NHS would no longer pay for care packages from that date.

The normal rules for charging for care

  1. Where adults receive care and support from councils, they normally do so under the provisions of the Care Act 2014 and may have to pay for it, depending on the level of savings and assets they have.
  2. In assessing what a person can afford to contribute a council must apply the upper and lower capital limits. The upper capital limit is set at £23,250 and the lower capital limit at £14,250.
  3. A person with assets above the upper capital limit will be regarded as able to afford the full cost of their care. In other words, they are ‘self-funders’.

What happened

  1. Mr X and his sister, Mrs Y, have power of attorney for their relative, Mrs A, for property and financial affairs. This means they can make decisions on Mrs A’s behalf with her consent if she has mental capacity or without her consent if she lacks the mental capacity to do so herself. During these events, Mrs A had full mental capacity.
  2. Mrs A previously lived in supported living and received a care package, which she arranged and funded herself.
  3. Mrs A was admitted to hospital in early 2020.
  4. On 20 March, the government introduced the new procedures described above for the rapid discharge of patients from hospital.
  5. Before Mrs A was discharged under these procedures, the Council completed an assessment of her needs. This confirmed Mrs A needed residential care at that time. Mrs A said she had a property in her name which she was planning to sell. This meant she had sufficient assets to take her above the charging threshold and to pay for her own care. The Council informed Mrs Y of its charging policy.
  6. On 23 April, the Council sent Mrs Y a financial assessment form to complete. It asked her to return it within 28 days. The letter stated “… we have been notified that [Mrs A] is receiving care services that are currently funded under the COVID-19 scheme covered by the NHS. Once the COVID-19 pandemic has passed, the funding the NHS provides for your care will end… on the day the NHS funding ends… you may need to pay towards the care that you receive… please find enclosed a financial assessment form to complete… we will follow up once the COVID-19 pandemic has passed”.
  7. Mrs Y did not return the form. During my investigation, Mr X said this was because Mrs A had previously received a care package which she had arranged and paid for herself because she was a self-funder and they had been told the NHS would pay for her care under the new procedures. Mr X said they saw little point as a result in completing the assessment.
  8. On 6 May, the Council gave Mrs Y a copy of the Council’s “Paying for Care” leaflet and a financial contribution factsheet.
  9. On 5 August, the Council reviewed Mrs A's placement at the care home.
  10. On 13 October, the Council sent Mrs Y a reminder that she had not completed the financial assessment form. Mrs Y returned this on 21 October. This confirmed Mrs A had a property and savings which meant she was above the financial threshold and therefore a self-funder.
  11. On 22 October, the Council sent Mrs Y a letter informing her it had reviewed Mrs A’s care needs in August and the NHS funding had ceased on 31 August. The letter stated Mrs A was not eligible for social care funding and would have to pay for her own care from 1 September. Mrs A was sent a bill for around £7,000 for her care.
  12. On 18 November, Mr X and Mrs Y complained to the Council. They said the Council was not allowed legally to claim retrospectively for the costs Mrs A had incurred for her care from 1 September. They also said the letter from the Council in April had stated the NHS would pay the care home fees ‘until the pandemic had passed’.
  13. On 2 December, the Council responded. It accepted Mr X and Mrs Y’s point that the pandemic had not passed but stated “at the point [Mrs A] was sent the initial letter and assessment form in April 2020, we were a month into the pandemic and could not reasonably predict or anticipate what would happen in the future”.
  14. The Council accepted there had been some delay in providing Mrs A with notification the NHS funding had ceased but stated Mr X and Mrs Y were informed on a number of occasions that Mrs A would be required to pay for her care under normal circumstances as she had assets above the upper threshold. The Council went on to say “… had you returned the financial assessment form within 28 days as requested on 23 April 2020, you would have had formal notification that [Mrs A] would not be eligible for social care funding at the point NHS funding was withdrawn”.
  15. The Council stated the government only informed councils on 22 August 2020 that the NHS funding scheme was stopping. It said “This left the council with very little time to reasonably apply the guidance immediately. This has unfortunately led to some delays in contacting clients about their charges for their care services whilst we identified all the affected people”. The Council said that if Mrs A had returned her financial form sooner, this would have allowed it to prioritise her assessment once it was notified the scheme had ended and they would have received confirmation of the changes to the funding arrangements sooner.
  16. Mr X and Mrs Y remained unhappy and complained again to the Council. They said the Council had acted unlawfully by charging retrospectively for Mrs A’s care costs.
  17. The Council responded on 17 December and stated that under the Care Act 2014, it could charge for social care if the person receiving it had savings and/or capital over the upper financial threshold.
  18. Mr X complained to the Ombudsman.
  19. In response to my enquiries the Council said that in hindsight its letter to residents about the government’s hospital discharge funding could have been clearer that the end date for the NHS funding was unknown and for the government to decide.

My findings

  1. The Council wrote the letter at the beginning of the pandemic. At this stage, it was a legitimate, if erroneous, belief that the pandemic would be over far quicker than proved to be the case. However, the Council had previously made it clear to Mrs A that she was a self-funder and she would have to pay for her care once the government scheme ended. It was open to the family to return the financial assessment form more promptly than it did which would likely have led to an earlier update once the scheme ended. Mrs A received the care she is now being asked to pay for. The Council is legally allowed under the Care Act 2014 to charge for that care. Therefore, although the wording of the letter could have been clearer, I stop short of finding fault.
  2. Mr X stated he was caused time and trouble in making his complaint to the Council. However, we will only generally provide a remedy where there was fault in the Council’s complaint handling. In this case, the Council dealt with both complaints promptly and provided a full response. There was no fault in the Council’s complaint handling.

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Final decision

  1. I have completed my investigation. There was no fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman

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