• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Agreed action
• Final decision

The Ombudsman's final decision:

Summary: Mr X complains on behalf of his late father, Mr Y, about the Council’s failure to notify him of care home fees until after Mr Y had passed away. As a result, Mr X says he was caused distress and inconvenience because he was presented with a large and unexpected bill for care services. The Ombudsman has identified some fault because the Council has been unable to show what Mr Y and Mr X were told about care home fees while Mr Y was in hospital, and took too long to initiate the financial assessment. However, this did not lead to significant injustice to Mr Y because he would have had to pay the fees even if the fault had not occurred. But there was injustice to Mr X and the Ombudsman has recommended the Council should apologise and make a small payment to him.

The complaint

1. Mr X complains the Council did not inform him that his father, Mr Y, was liable to make a contribution towards his care home fees until after Mr Y’s death. Mr X says he was told that it was paid for by the NHS. Mr X also complains about how the Council has dealt with his complaint about this matter.
2. Mr X says the debt should be written off.

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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 may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), 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. As part of my investigation I have:

• considered the complaint and documents provided by Mr X;
• made enquiries of the Council and considered its response;
• considered the relevant law and statutory guidance;
• spoken to Mr X; and
• sent a draft version of this decision to both parties and invited comments on it.

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What I found

7. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
8. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees.
9. The council 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 the care home fees. Most income will be taken fully into account unless it is specifically listed in the regulations to be disregarded.
10. The NHS is responsible for meeting the cost of care provided by registered nurses to residents in all types of care homes.

The facts

11. Mr Y lived independently in sheltered accommodation. In May 2018, he was admitted to hospital due to a fall. Because his state of health had deteriorated, a decision was made for him to move to a nursing home.
12. Mr X says he was told by hospital staff that his father’s nursing home placement would be paid for by the NHS. He says he received no information about funding either verbally or in writing. Nor was he told about it by the manager of the nursing home.
13. However, the correct position was that the NHS would only pay for the nursing element of his care. This was known as a “Funded Nursing Care Contribution (FNCC)”. Mr Y was still responsible for the remainder of the care home fees.
14. This was set out in the following terms in Mr Y’s care assessment:

“Whilst on the ward, Mr Y has been assessed under the Continuing Healthcare framework and has been recommended for FNC contribution, indicating that he will require the oversight of a registered nurse over a 24 hour period due to co-morbidities.”

15. The Council’s social worker (Ms B) says she told Mr X about the funding regime and that a financial assessment would need to be carried out in order to work out what Mr Y had to pay. This is disputed by Mr X.
16. Mr Y moved to the nursing home in June 2018, but sadly passed away on 22 August 2018.
17. The Council sent Mr X a financial assessment form on 17 September 2018. On the basis of information provided by Mr X, Mr Y’s estate was assessed as having to pay £380 per week towards the cost of his nursing home placement. The total amount owed was in the region of £3400.
18. Mr X says his late father’s estate had already been finalised and there was no money left to pay this invoice. He contacted the Council to try and resolve the matter. He had a meeting with a finance offer where he offered to pay half the amount owed but this was rejected by the Council. He says the Council has taken too long to deal with this matter and has been poorly handled by several officers. He complained to the Council and then the Ombudsman.

The Council’s response to the complaint and Ombudsman enquiries

19. The Council’s position can be summarised as follows:

• Ms B says she told Mr X that Mr Y was entitled to FNCC, but this did not cover the whole cost of the nursing home placement.
• Mr Y already made a financial contribution towards his non-residential care package so had been subject to previous financial assessments. Because of this, Ms B was under the impression that Mr X was aware of the charging regime and that a financial assessment would follow to determine the amount Mr Y was liable to pay.
• The Council has accepted there is no record of this discussion in the case notes. In response to this, the Council has told the Ombudsman, “We do recognise that the recording could have been more clear and robust. Since then we have done a great deal of work with the team to ensure they clearly document the discussions that take place”.
• The Council sent Mr X a copy of an information sheet explaining the charging rules. The Council says this was posted to Mr X on 12 June 2019 and was recorded in the assessment.
• The Council says it would usually expect a financial assessment to take place within 28 days of it being requested. In this case the request was made on 3 July 2018 and a visit was planned but then cancelled.
• Where someone passes away, out of respect, the Council does not contact the family for 2-3 weeks. The cancelled visit and Mr Y’s passing led to the delay in dealing with the financial assessment until September 2018.
• The Council accepted there were delays in reviewing documents provided by Mr X. The officer involved has apologised to Mr X for his role in this in his reply to the Ombudsman.
• The Council contacted Mr X, as executor of his father’s estate, within a reasonable timescale following his death, allowing for a period of mourning. Regardless of whether the estate was finalised quickly, the debt remains payable.

Analysis

20. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weight up the available relevant evidence and base our findings on what we think is more likely to have happened.

The explanation of the cost of Mr Y’s nursing home placement

21. Ms B has provided the Ombudsman with her recollection of her discussion with Mr X about nursing home charges. She says she thought Mr X understood there would be an amount to pay.
22. Mr X told me that it was the ward sister who said it would be free. This information was incorrect, only part of the cost was funded by the NHS.
23. Wrong information given by hospital staff is not fault of the Council. I must therefore disregard this and consider only what Mr X was told by Ms B.
24. There should be a record of what was discussed, both in the case notes and the care assessment and support plan.
25. The only reference funding is in the assessment, not the case notes. I do not find the assessment entry particularly clear and I would not expect a lay person to understand what this meant in terms of what the cost would be to them.
26. Mr X subsequently told Council finance staff that he did not understand the difference between NHS/CHC or FNCC funding.
27. This is entirely understandable. The use of such acronyms and together with subtle but significant differences between different types of health funding should be avoided when discussing future care costs.
28. Any ambiguity during verbal discussions about potential charges could have been corrected by the Council providing Mr X with written information. The Council says this happened. Mr X says he did not receive this.
29. In support of the Council’s position, I have been referred to a data entry. This said, “On what date was the help and advice sheet issued and who was it issued to?….Paperwork to be posted to next of kin on 12/6/18”.
30. This in itself does not evidence any information was sent, just there was an intention to do so.
31. The Council has not shown me a covering letter sent with the information leaflet. Production of this letter, together with the attachments would confirm it was sent. This casts doubt over whether this was actually sent. In the absence of this additional evidence, I am not satisfied it was.
32. On the balance of probabilities, I have decided from the evidence I have seen that while Ms B did have a conversation with Mr X about funding, in the absence of any records about this or proof that written information was sent to him afterwards, it was not done properly and is fault.
33. The Council has already accepted the record keeping in this case was not good enough and has taken steps to make improvements in this area. I welcome this.

Delay in carrying out a financial assessment

34. I must also consider whether there was fault in the time it took to carry out a financial assessment. There is no timescale set out in the relevant government guidance but there is an expectation that financial assessments will be carried out in a reasonable time.
35. The Council says it aims for assessments to be completed within 28 days of one being requested.
36. The financial officer told the Ombudsman, “I believe a request was made on 3 July 2018 and a visit was planned with the Financial Visiting Officer that was subsequently cancelled".
37. However, there are no case records about either of these events. If this had happened, I would expect to see evidence of them.
38. Mr X says he has no recollection of a cancelled visit.
39. Because of this lack of evidence, on balance, I am satisfied that Mr X was first told about possible care home fees on 17 September 2018 when he was sent the financial assessment form. This was within one month of Mr Y passing away, but approximately 3 months after Mr Y went into care.
40. This is two months outside the Council’s own timeframe is therefore fault.

Poor complaint handling and customer service

41. Mr X was unhappy about the bill he was being asked to pay from Mr X’s estate that had already been finalised. He therefore spent some time on the phone to officers trying to resolve the matter and attended a meeting in November 2018.
42. There was a delay in reviewing the documents and the Council’s position was not confirmed until February 2019.
43. Mr X formally complained in March 2019. The Council replied in April 2019. He made further representations in May 2019, to which the Council replied in July 2019.
44. While I can see there was some delay and poor administration by finance officers, much of the time taken since the bill was first raised was because of Mr X did not agree with the Council’s refusal to cancel or reduce the invoice.
45. The avoidable delay following the November meeting has been accepted by the Council and an apology offered to Mr X. This is an appropriate and proportionate response and there is no need for the Ombudsman to investigate any further.

Was there significant injustice to Mr Y and Mr X?

46. The question for me is what significant injustice was caused to Mr Y by the Council’s failure to provide information about the cost of nursing care and delay in starting the financial assessment. As it was Mr X that was assisting with his financial affairs, both before and after the death of Mr Y, it is also appropriate for me to consider if there has been any significant injustice to Mr X as well.
47. When someone dies, their debts become a liability on their estate. The executor of the estate, or the administrator if no Will has been left, is responsible for paying any outstanding debts from the estate. The Council has correctly advised Mr X that of the procedure that executors should follow when dealing with an estate, to avoid problems arising from unknown creditors. This includes placing an advert to alert potential creditors of a death and allowing some time between death and distribution of estate funds.
48. Mr X says Mr Y’s limited estate was distributed soon after his funeral and his bank account closed on 19 September 2018.
49. While I appreciate the fact there is no money left in his Mr Y’s estate may cause problems for the executor, this does not mean the Council was not permitted to raise an invoice.
50. Despite the failure to be able to evidence what Mr X was told about the charges, and the Council’s delay in starting the assessment, the Council has acted correctly in completing a financial assessment and charging for nursing care. The invoice is legitimate, despite the passage of time and the fact the estate has already been distributed. Recovery of this money is a matter for the Council and Mr X to resolve.
51. Because the Council was entitled to raise the invoice, and did so within a reasonable timescale, following the death of Mr Y, I do not consider that he was caused a significant injustice as a result of the faults I have identified.
52. I have also considered whether there has been a significant injustice to Mr X because he was presented with a large and unexpected bill for nursing care after Mr Y’s death.
53. Mr X was also put to the time and trouble of having to pursue the complaint which could have been avoided if the Council had provided his with enough information for him to understand Mr Y was liable for a financial contribution towards his care costs. The distress caused and avoidable inconvenience is injustice and warrants a remedy by the Council.

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Agreed action

54. To remedy the injustice identified in this report, the Council has agreed to take the following action within four weeks from the date of my final decision.
    • 1. Apologise in writing to Mr X.
      2. Pay Mr X £100 in recognition of the avoidable time and trouble he spent pursuing his complaint.

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Final decision

55. There was fault by the Council that caused an injustice to Mr X only. The Ombudsman has proposed a remedy that is appropriate and proportionate.

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Investigator's decision on behalf of the Ombudsman

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