Summary: Ms X complains the Council failed to deal properly with the funding for her father’s care home placement in March 2020, resulting in him paying for care which should have been free. Her father did not qualify for free care under the Government’s COVID-19 Hospital Discharge Service Requirements.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council failed to deal properly with the funding for her father’s care home placement in March 2020, resulting in him paying for care which should have been free.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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, sections 30(1B) and 34H(i), 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”.

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How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Ms X’s advocate;
• discussed the complaint with Ms X and her advocate;
• considered the comments the Council has provided;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Ms X, her advocate and the Council, for me to consider before making my final decision.

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What I found

What happened

6. Ms X’s father, Mr Y, was living at home in March 2020 with a package of care (four calls a day) arranged by the Council. However, as the package of care was not meeting Mr Y’s needs and it was no longer safe for him to remain at home, it was agreed he should move to residential respite care so his long-term needs could be assessed. Mr Y moved to a care home on 9 March. The Council did not charge for this emergency placement, which it initially arranged until 22 March.
7. On 19 March the Government issued its COVID-19 Hospital Discharge Service Requirements. Its key purpose was to ensure people did not remain in hospital if they did not need to be there, so beds would be available for an expected influx of patients with COVID-19. It identified Pathways 0-3 under a discharge to assess model. Pathway 3 was for:
• “1% of people: there has been a life changing event. Home is not an option at point of discharge from acute.”
8. Anyone provided with care under the Pathways did not have to pay for their care.
9. The Government also suspended completing checklists for NHS Continuing Healthcare. The purpose of the checklist is to decide if someone should be referred for a full assessment for Continuing Healthcare by the NHS.
10. On 30 March the Council extended Mr Y’s placement for 12 weeks, to allow time to assess him. It started charging Mr Y for his placement.
11. In May the Council retrospectively approved an extension to Mr Y’s “Pathway 3 spot purchased bed” to 29 March. The Council says this did not relate to the Government’s COVID-19 Hospital Discharge Service Requirements, but reflects the terminology it uses when extending a placement for which there is no charge.
12. On 1 September the Government lifted the suspension on completing checklists for NHS Continuing Healthcare.
13. The care home struggled to meet Mr Y’s needs as he was violent and aggressive.
14. The Council visited Mr Y on 7 October to start completing a checklist for NHS Continuing Healthcare but needed more information (behaviour charts) before completing it.
15. The Council sent the completed checklist to the NHS on 30 October, based on a change in Mr Y’s needs from 4 September.
16. On 10 November Mr Y moved to another care home. Since then, NHS Continuing Healthcare has funded his placement.
17. In November 2021 Ms X’s advocate complained to the Council about its failure to fund Mr Y’s placement under Pathway 3 of the COVID-19 Hospital Discharge Service Requirements.
18. When the Council replied to the complaint in June 2022, it said:
• the NHS was considering backdating Continuing Healthcare to 4 September 2020;
• it had been wrong to ask Mr Y’s family to pay a top-up for his care home placement, as it had not offered a placement which did not need a top-up;
• it had not made Mr Y’s placement in a care home under Pathway 3 of the COVID-19 Hospital Discharge Service Requirements, as he already had a package of care at home and made an emergency placement because it was not safe for him to remain there;
• there was some delay completing the NHS Continuing Healthcare checklist while it waited for the care home to provide behaviour charts; and
• Mr Y owed £6,930.90 for his placement in the care home up to 3 September 2020.

Is there evidence of fault by the Council which caused injustice?

19. The Council was not at fault for saying Mr Y had not been placed in the care home under Pathway 3 of the COVID-19 Hospital Discharge Service Requirements. This is because Mr Y moved to the care home before they had been issued. Besides, Mr Y had not been in hospital but moved to the care home from his own home, as it was no longer safe for him to remain there. The Council was entitled to charge for Mr Y’s care when it became clear he would need a longer-term placement in a care home.
20. There was some delay in completing the NHS Continuing Healthcare checklist, but this did not cause injustice as Mr Y qualified for Continuing Healthcare and the NHS considered backdating to 4 September 2020. If it did not agree to do that, it will have been open to his family to appeal the decision.

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Final decision

21. I have completed my investigation on the basis there is no evidence of fault causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman