Summary: Mrs F complains on behalf of her mother that the Council refused to allow her to live in her own home with carers, withdrew COVID-19 funding and is unfairly charging Mrs J for her care. We have found no fault.

The complaint

1. Mrs F complains on behalf of her mother, Mrs J, that the Council had:
• Refused to allow Mrs J to live in her own home with carers as she wished; and
• Withdrawn COVID-19 NHS funding and was unfairly charging Mrs J for her care in a nursing home without applying to the NHS for nursing funding.
2. As a result of being in a nursing home, Mrs J had lost the ability to move unaided and needed 24-hour care to live at home.

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The Ombudsman’s role and powers

3. 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)
4. 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”.
5. 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)

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How I considered this complaint

6. I considered the information Mrs F sent, the Council’s response to our enquiries and:
• The Care Act 2014 (“the Act”)
• The Care and Support Statutory Guidance 2014 (“the Guidance”)
• The Care and Support (Charging and Assessment of Resources) Regulations 2014 (“the Regulations”)
• COVID-19 Hospital Discharge Service Requirements Guidance March 2020 and August 2020
7. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The law and relevant guidance

8. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person’s needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has any eligible needs, they must meet those needs. The person’s needs and how they will be met must be set out in a care and support plan.

Charging for care and support

9. Where a council arranges care and support to meet a person’s needs, it may charge the adult for the cost of the care. The Guidance and Regulations state that people who have capital (e.g. savings or a property) over the upper limit (£23,250) are self-funders, expected to pay the full cost of their care. People with capital less than the upper capital limit have to pay an assessed contribution towards the cost of their care. A person with assets below the lower capital limit (£14,250) will pay only what they can afford from their income.

Charging for temporary residential care

10. If the council arranges a care home placement following an assessment of a person’s care and support needs, it can be on a short-term, temporary or permanent basis.
11. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, or where there is doubt that permanent admission is required. Normally the person’s stay is unlikely to exceed 52 weeks. There must be a plan to return home at some point. The Council refers to temporary residential care as “short stay”.
12. The rules for charging for temporary residential care are the same as for permanent residential care, except the value of the person’s home is disregarded. Additional expenses to maintain the person’s home, such as water rates, council tax and rent/mortgage, must also be disregarded.

Financial assessments

13. Councils must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of their care. Care and support charges apply as soon as the service starts. Once the financial assessment is completed the care charges will be backdated.
14. When assessing a person’s income, councils must leave the person with a weekly personal expenses allowance. This is an amount that people receiving council-arranged care and support in a care home are assumed to need as a minimum for their personal expenses. The amount is set by the Government.

NHS Continuing Healthcare

15. NHS continuing healthcare (CHC) is a package of care arranged and funded by a person’s Clinical Commissioning Group (CCG) when a person has been assessed as having a primary health need. CHC can be provided for care in a nursing home or at a person’s home.
16. It is the responsibility of the CCG, not the council, to assess the person’s needs and decide whether they are eligible for continuing care. If a person disagrees with the CCG’s decision they can ask for a review. Complaints about CHC are dealt with by the Parliamentary and Health Service Ombudsman.

NHS-funded nursing care

17. The NHS is also responsible for meeting the cost of care provided by registered nurses to residents in all types of care homes. Care home residents who receive funded nursing care (FNC) still have to pay their social care costs, but the NHS pays the care home a flat rate towards the cost of the nursing care.

Hospital discharge during the COVID-19 pandemic

18. On 19 March 2020 the Government and the NHS issued the COVID-19 Hospital Discharge Service Requirements guidance. This said patients must be discharged from hospital as soon as it was clinically safe. The guidance suspended the need for CHC assessments and introduced a “discharge to assess” model consisting of four pathways. Pathway 3 was for people being discharged to care homes.
19. The guidance also said the NHS would fully fund the cost of new or extended social care support for a limited time for people who started a care package between 19 March and 31 August 2020. This was to enable care to continue until assessments of longer-term care needs had been completed, at which point the person’s care would move to normal funding arrangements.
20. This guidance was withdrawn on 25 August 2020. It was replaced with new guidance which said from 1 September 2020 the NHS would fund new or extended health and care support for up to six weeks, following discharge from hospital. During this period there should be assessments to determine needs and eligibility for funding. CHC assessments resumed from 1 September 2020. The funding would not pay for care packages that were restarted following discharge from hospital at the same level as delivered prior to admission to hospital.

What happened

21. Mrs F’s mother, Mrs J, is in her 80s, has Parkinson’s and has had a stroke. She uses a walking frame and is at high risk of falls. Mrs J’s capacity to make decisions varies. She was living alone in her own home, supported by her family.
22. In December 2019, Mrs J went into hospital following a fall. Following an assessment, the NHS determined Mrs J was eligible for FNC but not CHC. Mrs J was discharged to a nursing home on 12 February 2020. The Council’s care and support plan from 15 February says this was because of her high care needs and need for time critical medication. Mrs F says it was for respite. Mrs J needed support with personal and continence care and supervision when walking with her frame. She sometimes needed two carers in the morning. She also needed to have medication every two hours exactly during the day.
23. Mrs J’s needs were due to be assessed on 18 March, but because of the coronavirus pandemic the social worker could not attend. The social worker spoke to Mrs F and the nursing home over the phone on 8 April. The Council considered that as it could not complete a full assessment, and because Mrs J had high care and medication needs, it would not be safe to discharge her home. The Council and NHS agreed Mrs J should remain in the nursing home under COVID-19 NHS funding at no cost to her. A full care and support assessment and financial assessment would need to be completed to establish her future care and charging arrangements.
24. Some lockdown restrictions were eased in May and June 2020 but I have seen no evidence of a further care and support assessment then. Mrs J remained in the nursing home, funded by the NHS. She was hospitalised with COVID-19 in May 2020 and discharged back to the nursing home.
25. Following the change to the COVID-19 NHS funding from 1 September 2020, the Council was required to assess all those receiving that funding to determine their care needs. The Council assessed Mrs J on 12 November 2020. Her capacity to make a decision about where she lived had not been formally assessed, though Mrs J appeared to have varying capacity and was sometimes confused. Mrs F had spoken to her and found Mrs J wished to return home. The assessment said this may be possible with a 24-hour package of care.
26. The social worker emailed Mrs F on 18 November that Mrs J “presents as requiring 24 hr supervision”. The Council said the options were therefore that Mrs J remain in a nursing home as a self-funder or return home with 24-hour live-in care. The email explained Mrs J would be required to contribute towards the cost of this. The Council said the COVID-19 funding would not end until Mrs J’s new care arrangements were implemented.
27. Mrs F told the Council that Mrs J wished to return home. The Council therefore asked an occupational therapist to assess Mrs J’s property. The assessment in December 2020 found a ramp would be needed and major adaptations may be needed. The ambulance service would also need to assess how to access the property if Mrs J was taken home.
28. A further coronavirus lockdown started on 5 January 2021. Mrs F asked if this would affect the plans for Mrs J to return home. She also asked for details of the care Mrs J required as she had not seen a recent assessment and asked about NHS funding.
29. The Council replied saying the assessment started in November 2020 had now been completed and sent it to Mrs F. Mrs J could still return home if she wished. If Mrs J remained in a nursing home she would be eligible for FNC. If she returned home the Council would ask the NHS whether it would contribute to the cost of her care package. The occupational therapist advised she had asked the ambulance service to assess access to Mrs J’s home. This assessment would be in the next two weeks.
30. Mrs F said the nursing home had told Mrs J she would be going home in two weeks and an ambulance had been booked. This had caused Mrs J considerable anxiety and distress due to the lockdown and a concern that no care package was in place. Mrs F did not want Mrs J to return home until it was safe. She said Mrs J’s condition had deteriorated; she spent a lot of time in a wheelchair and was now unable to weight bear or shower without assistance.
31. Mrs F was concerned that the NHS funding was stopping and that Mrs J would not be able to afford to pay for her care. She said the homecare could not be arranged until the funding of it had been sorted out. She contacted her MP.
32. On 26 January 2021 Mrs J went into hospital following a suspected mini stroke. Mrs F raised concerns that the nursing home had been advised that if Mrs J was in hospital for more than two days the COVID-19 NHS funding would stop. As Mrs J could not afford to pay for the care home herself, she would have to stay in hospital. The Council said it had not discussed funding with the nursing home.
33. The hospital discharged Mrs J back to the nursing home on 1 February 2021. The Council then advised Mrs F that Mrs J’s stay would be changed to a short stay placement, rather than a COVID-19 NHS funded placement. This meant Mrs J would need to contribute to the cost of her care from 1 February 2021. The social worker carried out a care and support assessment over the phone. This said it was potentially feasible for Mrs J to return home with a 24-hour care package. Whilst this was being explored, Mrs J was in the nursing home on a short stay basis as it was able to meet her needs.
34. Mrs F was concerned she had not been consulted about where Mrs J should live after her hospital stay and that Mrs J was being asked to pay for her care before the completion of a financial assessment. She had completed a new financial assessment form and asked what Mrs J’s contribution would be. Mrs F was concerned a new CHC assessment had not been carried out, as Mrs J’s health needs had changed.
35. The Council wrote to Mrs F on 17 February that Mrs J’s assessed contribution for short stay residential care was £314.96 per week. The Council had allowed for insurance, water rates, an empty property allowance for fuel, and personal expense allowance of £30.65 per week. Mrs F disputed the financial assessment and considered the calculations were wrong. She also said the assessment had not taken account of the bills Mrs J had to pay for her property.
36. The Council agreed there should be a new CHC initial assessment. It said Mrs J appeared more confused than before and now required two carers to support her with transfers and care in bed. This was above the requirement for 24-hour live-in care already identified. Until appropriate NHS input was identified the Council could not organise a complex homecare package safely.

Mrs F’s complaint

37. Mrs F complained to the Council on 26 February that there had been a delay in requesting a new CHC assessment and that, given Mrs J’s high needs, her care should be NHS funded. She also complained Mrs J’s wish to return home was being disregarded. Mrs F said she had been given no notice or ever agreed to the cost of staying in the nursing home.
38. The Council replied on 9 March 2021. It did not uphold Mrs F’s complaint. It said the Council had advised Mrs F why the COVID-19 NHS funding had ended. The Council had followed Government policy in relation to this and Mrs J’s financial assessment. A recent CHC initial assessment was being considered by the NHS and the Council continued to explore how Mrs J could return home should it be safe and appropriate for her to do so. Officers had used a range of means to assess Mrs J’s needs including visits to the care home, contact with other professionals, and telephone calls to family members and providers.
39. Mrs F complained to the Ombudsman. She said Mrs J had been left in a bed and chair so much she had lost the ability to move unaided. She now needed 24-hour care to live at home, which was due to the length of time she had been in the nursing home with no daily exercise due to staff shortages.

Events since approaching the Ombudsman

40. The NHS found Mrs J was eligible for FNC but not CHC in April 2021. Mrs J remains in the nursing home on a short stay placement. Following an annual uplift in care charges, Mrs J’s weekly contribution is £318.96. The social worker was due to visit her to assess her needs in June 2021.

My findings

Did the Council wrongly prevent Mrs J from returning home?

41. It is not the Ombudsman's role to decide what, if any, care and support a person needs. That is the council's role. My task is to consider if the council has followed the correct process for establishing a person's needs and if it acted correctly when this process was complete. In doing so we look at what information the Council considered, and if it took account of the service user’s and carer’s wishes. If a council considers all this information properly the Ombudsman cannot find a council at fault just because a service user disagrees with its decision, or outcome of an assessment.
42. When Mrs J was discharged from hospital in February 2020 it was agreed she should move to a care home for a temporary period to be assessed. The planned assessment was then affected by the coronavirus pandemic. A care and support assessment was completed over the phone and a care and support plan developed from 15 February 2020. The Council and NHS agreed Mrs J should remain in the care home, funded by the NHS, given her care and medication needs. This was in line with the new COVID-19 guidance on hospital discharge and I have seen no evidence of fault in the way this decision was made.
43. The next assessment was also done over the phone in November 2020. It is unclear to me why it was not done sooner, but this may have been affected by Mrs J’s hospital stay in May 2020. The care and support assessment describes Mrs J’s needs and how these can be met. It found Mrs J required 24-hour care and noted her wish to return home. The Council started to plan for this. It asked an occupational therapist to assess Mrs J’s property and arranged for the ambulance service to assess access. However, further planning was affected by the lockdown which started in January 2021, which made Mrs J concerned about moving unless it was safe. Mrs J then went into hospital. There was no fault by the Council which prevented Mrs J returning home.
44. Mrs F is concerned that Mrs J was discharged back to the nursing home in February 2021. She says she was not consulted about this and would not have agreed to it. I cannot investigate the decision that Mrs J was medically fit for discharge or how her discharge was planned by the hospital, as these are the responsibility of the NHS. However, I note it would be normal practice for a person to be discharged back to their place of residence, which in Mrs J’s case was the nursing home.
45. The Council again assessed Mrs J on 4 February. This found the nursing home could meet her needs and she should stay there on a short stay basis whilst the possibility of returning home was explored. This assessment was done over the phone due to the COVID-19 lockdown, which was an appropriate decision, and it included Mrs J’s and Mrs F’s wishes. Mrs F says Mrs J’s needs had increased and her care should be funded by the NHS. I consider the funding arrangements below, but there was no fault by the Council in the way it decided that Mrs J should remain in the nursing home whilst arrangements were explored for going home. I therefore cannot criticise this decision.
46. The Council asked the NHS to carry out an initial assessment for CHC. This was done in February 2021 and the NHS reached a decision in April 2021 that Mrs J was not eligible. There is no fault in the Council's decision not to progress with Mrs J's return home until the CHC assessment was completed. This is a decision it was entitled to make and Mrs J’s needs were being met. I have not investigated what happened after March 2021 as this was after Mrs F's complaint to the Council.
47. There was no fault by the Council in the way it decided Mrs J should remain at the nursing home on a short stay basis.
48. Mrs F says Mrs J’s health and mobility has deteriorated since being in the care home and she now requires 24-hour care. I note that the Council assessed Mrs J as needing 24-hour care in November 2020.

Was the COVID-19 NHS funding wrongly withdrawn?

49. There is no dispute about the NHS funding Mrs J’s care from 12 February 2020 to 31 January 2021. It did this under the COVID-19 Hospital Discharge Service Requirements Guidance March 2020 as the assessment of Mrs J’s long term care needs following discharge from hospital was affected by the pandemic. The Government’s intention was for this funding to end once the assessment was completed. The assessment was started in November 2020 but completed in January 2021 and the Council advised Mrs F the NHS funding would not end until any new care arrangements were in place.
50. The period of dispute is from 1 February 2021, when Mrs J was discharged from hospital. At this point the Government guidance had changed. The NHS would now only fund six weeks of additional care to enable someone to be discharged from hospital. The funding could not pay for care packages that were at the same level as prior to admission to hospital. Whilst there is evidence Mrs J’s needs had increased as she now required two carers to transfer and appeared more confused, I have seen no evidence that the care package she was receiving at the nursing home had increased.
51. I have considered whether Mrs J could have returned to the nursing home under the previous COVID-19 funding scheme. However, that was to be paid until the care and support assessment had been completed, which it had been in January 2021. And as that funding source had ended, I do not consider it would have been possible for Mrs J to continue to receive it.
52. I therefore find no fault in the decision that the COVID-19 funding did not apply from 1 February 2021.

Is Mrs J being wrongly charged for her care?

53. The law says councils can charge a person for the care and support they arrange. They must assess the person’s finances to determine how much they can contribute. Mrs J was in the nursing home on a short stay basis from 1 February 2021 as she wanted to eventually return home. The Council’s policy for assessing contributions to the cost of short stay is to disregard the value of the person’s home, to disregard a number of charges such as fuel and water rates, and to leave the person with the personal expenses allowance of £30.65.
54. I have reviewed the Council’s assessment of Mrs J’s finances in February 2021. It has disregarded the right elements and I have seen no evidence of fault in the way Mrs J’s contribution was calculated.
55. Mrs F says any homecare could not be arranged until the financial assessment was completed, but the law expects care to be provided and it should not be delayed until the outcome of a financial assessment. If the person’s contribution and cost of care has not yet been calculated, it should be as soon as possible and charges backdated to the start of the care package.

NHS funding for nursing care

56. I cannot investigate the NHS’s decisions about Mrs J’s eligibility for CHC. Mrs F can ask for a review of this and make a complaint to the CCG.
57. Mrs F complained the Council had delayed requesting a CHC assessment in February 2021. She considered this should have been done whilst Mrs J was in hospital. The Council became aware that Mrs J possibly had increased needs after she returned to the nursing home in February 2021. It requested a CHC assessment and this was done on 26 February. I do not find any drift or delay.

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Final decision

58. There was no fault. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman