Summary: Ms B runs a care home and says the Council has not fulfilled its duties towards one of the residents, Ms C which meant the care home was not paid. The Ombudsman has found fault in the Council’s delay and failure to carry out the necessary assessments of Ms C. The Council has agreed to apologise to Ms B, carry out a financial assessment of Ms C and, depending on the outcome of the assessment, pay the care home any fees it owes.

The complaint

1. Ms B is the director of a care home. She says:
• The Council has failed to pay the fees for one of the residents, Ms C, who has passed away. The Council is wrong in claiming it does not have a duty to pay the fees because of Ms C’s immigration status.
• There are long delays, sometimes of 12 months, in the Council carrying out financial assessments. If the outcome of the assessment is that the person is not eligible for funding, the Council then deducts the care home fees it has paid for the non-eligible resident from the payments that it is due to pay on other residents. This causes serious cash flow problems to the care home and it is often unable to recover the debt.

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What I have investigated

2. I have investigated the complaint about the Council’s duties relating to Ms C. Paragraphs 46 and 47 explain why I have not investigated the complaint about the other residents.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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 have discussed the complaint with Ms B. I have considered the documents she and the Council have sent and the relevant law, guidance and Council policies and both sides’ comments on the draft decision.
7. I have investigated events that are over a year old as the complaint continued for several years and it was in the public interest to investigate the complaint.

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What I found

Law and guidance

Adult social care

8. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) and the Care and Support (Charging and Assessment of Resources) Regulations 2014 set out the Council’s duties towards adults who require care and support and its powers to charge.

Duty to assess

9. The Council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the Council will provide a support plan which outlines what services are required to meet the needs and a personal budget which calculates the costs of those services.

Eligibility threshold

10. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. Council must consider whether:
• The adult’s needs arise from a physical or mental impairment or illness.
• As a result of the adult’s needs the adult is unable to achieve 2 or more of the specified outcomes (for example: maintaining nutrition, personal hygiene, managing toilet needs, appropriate clothing, safe use of the home and so on).
• As a consequence of being unable to achieve these outcomes there is a significant impact on the adult’s wellbeing.
11. An adult’s needs are only eligible where they meet all 3 of these conditions.

Funding

12. If a person needs residential care, the Council will assess their capital and income. The upper capital limit is currently set at £23,250 and the lower limit at £14,250. A person with assets above the upper capital limit will have to pay for their own care. Those with capital between the upper and the lower limit will make a contribution known as ‘tariff income’ from their capital.
13. Regardless of capital, residents will also have to pay a contribution from their income towards the fees.
14. The NHS is responsible for meeting the cost of any care provided by nurses to residents in care homes. This is NHS funded nursing care.

Restrictions on support to migrants

15. There are two important restrictions on providing social services support to people with no recourse to public funding.

Immigration and Asylum Act 1999 section 115

16. Section 115 applies to people who:
• require leave to enter or remain in the UK but do not have it;
• have leave to enter or remain subject to a condition that they have no recourse to public funds;
• have leave to enter or remain subject to their sponsor agreeing to be responsible for their maintenance and accommodation;
• have leave to enter or remain only on the basis that they are going through certain forms of appeal.

National Immigration and Asylum Act 2002 section 54 and schedule 3

17. Section 54 and Schedule 3 apply to people who:
• have refugee status granted by a non-UK EEA country and any of their dependents;
• are non-UK EEA nationals and any dependents;
• are failed asylum seekers who have failed to comply with removal directions;
• are unlawfully present in the UK but are not asylum seekers;
• are failed asylum seekers with family who have not taken reasonable steps to leave the UK voluntarily.
18. People in the section 115 category must get over the restriction of section 21 of the Care Act which says a local authority may not meet the needs for care and support of an adult to whom section 115 applies if the need for care and support has arisen solely:
• Because the adult is destitute.
• Because of the physical effects of being destitute.
19. Therefore, if a person has care and support needs related to physical or mental problems and not purely because they are destitute, then they are entitled to Council support subject to the same tests in terms of eligibility, finance assessment and so on.
20. Support to people in the schedule 3 category is more restricted. Generally speaking, they will not receive support from social services, unless they can show that their human rights or EU treaty rights are engaged and severely impacted upon.
21. The Care Act 2014 came into effect on 1 April 2015. It is my understanding that the legal provisions in terms of support to people with no recourse to public funding before the Act were similar to the provisions after the Act.

What happened

22. Ms C is a US citizen who came to the UK in April 2012. Her daughter Ms D is a British citizen. Ms C was frail and elderly and the plan was for her to live with her family. She sold her house in the US and had some savings. Ms C was granted indefinite leave to remain in the UK on 10 May 2013. This was on the condition that she had no recourse to public funding and would be financially supported by her sponsor, Ms D for five years.
23. Ms C’s health deteriorated and she moved into the care home in April 2013. She self-funded the fees from her savings, her US pension and an attendance allowance. It is my understanding that she lacked capacity to make decisions about her finances although I have not seen a mental capacity assessment. The family did not hold a power of attorney for Ms C and I do not know how her finances were managed.
24. Ms C’s family contacted the Council in 2013 and asked for financial support for Ms C. The Council said Ms C was not eligible for community care services from the Council because of her immigration status.
25. There is a note from March 2014 which said Ms C received funded nursing care from the NHS.
26. The family contacted the Council again in October 2014 and said Ms C’s savings were now below the threshold so she was eligible for Council funding. The Council’s position remained that Ms D should pay for Ms C’s care as she had signed the sponsorship form and the five years had not expired yet. The Council asked the family for the sponsorship form and the information the UK Borders Agency held. The family said it was unable to obtain this because it did not hold a power of attorney for Ms C.
27. Ms B says the care home contacted the Council in May 2015 asking for a needs and financial assessment to be carried out. The Council has no record of this telephone call.
28. Sadly, Ms C died on 30 April 2016.
29. The Council carried out an assessment of Ms C’s needs. The assessment is dated 11 May 2016 but it is not clear when the assessment took place.
30. The assessment said Ms C had needs for care and support linked to a physical and mental impairment. It said she met all the requirements for eligibility of Council support under the Care Act.
31. The previous manager of the care home wrote to the Council on 7 February 2017. She said:
• She spoke to the Council in May 2015 and said a financial assessment had been requested.
• She contacted the Council in April 2016 and was told the assessment officer was working on the case.
• The Council had not carried out an assessment as far as she was aware.
• There was a large balance on Ms C’s account which was unpaid.
32. The Council replied on 8 March 2017 and said Ms C was not eligible for funding as the liability remained with her family. The care home should therefore approach the family for the payment of this bill.
33. The care home wrote to the Council on 2 May 2017 and said the care home had not been paid. The Council replied and said there was no record that the Council was involved in the placement and the records showed Ms C was self-funding. It was the sponsor’s responsibility to pay the fees, not the Council’s.
34. The care home’s solicitor threatened legal action on 29 August 2017. The solicitor said the Council was responsible for payment of the care home fees and had a legal duty to assess Ms C’s care needs, in line with the Care Act.
35. The Council said the solicitor had not explained what the contractual or other basis was for the Council’s liability for the fees. Ms B wrote an email saying the duty was based on the National Assistance Act 1948 and case law. The Council did not change its position.
36. In its response to the Ombudsman, the Council said that Ms C’s care arrangements were made between her or her family and the care home. It said there was no contractual arrangement between the Council and the care home and there was no legal basis why the Council should pay the fees.

Analysis

37. The Council had a duty to assess Ms C’s needs for care and support and to meet any eligible needs, unless those needs arose solely because Ms C was destitute or because of the physical effects of the destitution.
38. The Council says the placement of Ms C at the care home was a private arrangement. That is true, but that does not mean that it had no duties towards Ms C. It often happens that self-funders run out of capital and then become eligible for Council funding.
39. There was fault in the Council’s actions as it failed to meet its duties towards Ms C. It should have carried out an assessment of Ms C’s needs and finances as soon as the family contacted the Council for help, in 2013 and again in 2015. It failed to do so and this is fault. It carried out the needs assessment in 2016 and never carried out a financial assessment of Ms C.
40. The Council’s assessment dated May 2016 concluded Ms C had eligible needs which were not solely linked to her destitution.
41. The Council therefore had a duty to meet Ms C’s needs if a financial assessment confirmed that Ms C was eligible for Council funding.
42. The care home suffered an injustice by the Council’s failure to act in line with its duties. Its delay in assessing Ms C’s needs for support and its failure to assess her finances left the care home in an impossible position. Ms C was very frail and near the end of her life. The care home said it could not evict her and was left in limbo.
43. It is impossible to say whether the Council was further at fault by not paying the fees. This will need to be decided by a financial assessment of Ms C’s capital and income. However, if, as the family says, Ms C’s savings were below the threshold in October 2014, then there was further fault in the Council’s failure to pay the fees that it had a duty to pay.

Agreed action

44. The Council has agreed to take the following action within 1 month of the final decision. It will:
• Apologise in writing to Ms B for the fault.
• Carry out an assessment of Ms C’s finances. If this assessment determines that Ms C was eligible for Council funded care, it should pay the care home any fees that it owes.
• Ensure the relevant staff are aware of the Council’s duties towards people with no recourse to public funding and provide further training if necessary.

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Final decision

45. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Parts of the complaint that I did not investigate

46. I have not investigated Ms B’s other complaint about the delay in the financial assessments for other residents and the practice of setting of debts of one resident against payment of another.
47. The Ombudsman can only consider complaints which have gone through the Council’s complaints procedure. If Ms B has grounds for a complaint relating to another matter, she should first raise the complaint with the Council and then, once the matter has gone through the Council’s complaints process, she can come to the Ombudsman if she is not satisfied with the Council’s response.

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Investigator's decision on behalf of the Ombudsman