Summary: We will not investigate this complaint about a Council inappropriately seeking payment for care home fees. This is because it is unlikely an investigation would be able to provide an outcome the complainant would find satisfactory.

The complaint

1. Mr A’s aunt, Mrs X, left hospital and went into a care home in March 2020. Essex County Council (the Council) arranged this care home placement. Professionals had not considered Mrs X’s eligibility for NHS Continuing Healthcare (CHC) funding before this happened.
2. Mr A complains that responsibility for Mrs X’s case was unlawfully transferred from the NHS to the Council before Mrs X’s eligibility for CHC had been considered. Mr A complains that this, in turn, led to an inappropriate request by the Council for: Mr A’s participation in a financial assessment (on Mrs X’s behalf); and, payment of Mrs X’s care home fees.
3. Mr A said this caused him considerable stress and inconvenience.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint, or
• it would be reasonable for the person to ask for a council review or appeal; or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I read the information Mr A sent to the Ombudsman. I read the papers the Council sent in response to our initial enquiries. I considered the Local Government and Social Care Ombudsman's (LGSCO’s) Assessment Code.
6. I shared a confidential copy of this draft decision with Mr A and invited his comments on it. I considered the comments Mr A made on it.

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What I found

7. In early 2020 Mrs X suffered a stroke and went into hospital. At the end of March Mrs X left hospital and transferred to a care home. No one had assessed Mrs X’s eligibility for CHC before she went to the care home. Prior to Mrs X’s discharge new hospital discharge and post-hospital care funding guidance was implemented in response to the pandemic. This put assessments for CHC on hold and provided funds for the NHS to pay for people’s care until they could be assessed.
8. In early April the Council wrote to Mrs X, care of Mr A, and said that Mrs X may have to pay a contribution toward the cost of her care. It said this would depend on the outcome of a Financial Assessment. The Council enclosed a relevant form and said Mr A needed to return it by the date on the form (approximately two weeks).
9. Mr A said he did not receive this letter until early May. He said when he received it he called the Council’s Financial Assessment Team to advise them of this. Mr A said he would not be able to complete the forms until he went to Essex (250 miles away) as the relevant details were with Mrs X. Mr A also noted that he could not travel during lockdown. In addition, Mr A challenged the need for a Financial Assessment on the basis that he believed that Mrs X should be eligible for CHC.
10. The Council sent another letter about the Financial Assessment two days later. It said that if it did not receive the required information within the next two weeks it would proceed on the basis that Mrs X was required to pay for the full cost of her care.
11. In late May and again in late June the Council issued invoices to Mrs X, care of Mr A, for the cost of Mrs X’s care in the care home up to early June. The total outstanding balance of the second invoice was more than £6,000.
12. In the middle of May 2020 Mr A complained to a Clinical Commissioning Group (CCG) and copied the complaint to the Council.
13. The CCG replied at the end of June and incorporated information from the Council. The CCG said:

• No one had assessed Mrs X’s eligibility for CHC,
• Since 19 March 2020 the Covid-19 Hospital Discharge Service Requirements had been in place. The CCG said that under these arrangements Mrs X met the criteria for Pathway 3 – where care is funded without prejudice by the NHS pending a full assessment. The CCG said, as such:
• The Council would fund Mrs X’s care in the Care Home from March to 8 June (as it had arranged the placement) and it would not pursue Mrs X’s estate for any costs for this period,
• With immediate effect, it had arranged without-prejudice funding for Mrs X’s placement directly with the Care Home.

Analysis

14. It has already been acknowledged that services did not implement the appropriate policy when Mrs X was discharged from hospital in March 2020. As such, there is no dispute that there was fault in this case. Further, while the Council has not directly acknowledged it, it seems clear that its decision to pursue payment for Mrs X’s care was likely a result of fault. Under the Covid requirements, Mrs X was entitled to free NHS care until a full assessment of her eligibility for CHC had been completed.
15. In terms of the impact of this fault, as I understand it, no one representing Mrs X paid the invoices issued by the Council in May and June 2020. After that, the CCG confirmed that: the Council would pay them and would not pursue Mrs X for payment; and, the CCG would fully fund Mrs X’s care in the Care Home until a CHC assessment was completed. As such, neither Mrs X nor Mr A lost out financially by having to pay for Mrs X’s care when they were not required to do so.
16. Mr A said that, as a result of these failings, he had to spend time and money complaining. He complains that he lost out on earnings he would otherwise have made. We do not normally recommend remedies that reimburse loss of earnings. This is because we are unlikely to be able to reach conclusive findings (on the balance of probabilities) on such matters through our investigations. We cannot usually, on balance, establish a clear and causal link between the fault and the claimed injustice of lost earnings. There are frequently other factors, personal circumstances and choices involved. Such payments are therefore best resolved by the courts.
17. Mr A also complains that these events were very stressful and he links this to a minor stroke he experienced around this time. It is understandable and believable that the Council’s pursuit of a financial assessment, and the invoices it issued, caused Mr A stress. However, I can see no way that an investigation by the Ombudsman would be able to say that, on balance, Mr A would not have suffered a stroke had it not been for fault. There are too many things we could only speculate on which may have had an impact on the stroke. Nevertheless, even without a link to a minor stroke, a finding of having been caused stress and inconvenience would amount to a personal injustice.
18. An investigation by the Ombudsman could potentially lead to a recommendation that the Council acknowledge that it was wrong to pursue a Financial Assessment and issue invoices, and a corresponding apology for the stress and inconvenience this caused Mr A.
19. However, in his clearly defined list of desired outcomes, Mr A did not include a request for an apology.
20. It is likely we would consider an apology alone to be a proportionate remedy, because:

• These events took place at the beginning of the pandemic, just after the time when guidance on hospital discharge changed, and
• The Council quickly confirmed, after Mr A complained, that it would not pursue payment of the invoices.

Because of these factors, it is unlikely an investigation would recommend any further personal remedy beyond an apology.

21. Further, as the Covid guidance has now been replaced, it would not be possible to make meaningful recommendations aimed at service improvements.
22. Overall, given the gap between Mr A’s desired outcomes and the Ombudsman’s likely recommendations, I do not think there is a realistic prospect of an investigation of this complaint producing an outcome that Mr A would consider satisfactory. For this reason, the Ombudsman should not investigate this complaint.

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Decision

23. The Ombudsman will not investigate the complaint for the reasons set out above.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman