Summary: We found fault by the Council as it failed to notify the ICB when Mrs B’s funding arrangements changed. This caused her family unnecessary confusion. The Council will apologise for this.

The complaint

1. The complainant, who I will call Mr H is complaining about the support provided to his mother-in-law, Mrs B, by Surrey County Council (the Council) and Surrey Heartlands Integrated Care Board (the ICB). He complains that there was significant confusion surrounding the funding arrangements for Mrs B’s care following her discharge from hospital in September 2020. Mr H says Mrs B’s family was provided with confusing and contradictory information by the Council and ICB.
2. Mr H says this lack of clarity resulted in the ICB clawing back over £12,000 in care fees from the care home in which Mrs B was resident. This in turn meant she was presented with a sizeable lump sum bill by the care home. This put pressure on the relationship between the care home and Mrs B’s family. In addition, Mr H says he was put to unnecessary time and trouble attempting to resolve the situation.

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The Ombudsmen’s role and powers

3. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
5. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. In making my final decision, I considered information provided by Mr H and discussed the complaint with him. I also considered information and documentation from the Council and ICB, including relevant care records. I invited comments from all parties on my draft decision statement and considered the responses I received.

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What I found

Relevant legislation and guidance

COVID-19

7. In response to the COVID-19 pandemic and the need to keep hospital beds free, the Government introduced the COVID-19 Hospital Discharge Service: Policy and Operating Model (‘Discharge Today’). This guidance came into effect on 21 August 2020.
8. Discharge Today set out that patients must be discharged from hospital as soon as it was clinically safe. It introduced a “discharge to assess” model consisting of four care pathways. Pathway 3 applied to people who were unable to return home following their discharge and who required residential care.
9. This model set out that the NHS would fully fund a person’s care for up to six weeks following their discharge from hospital. This was to enable care to continue until a person’s longer-term care health and social care needs had been assessed.
10. Section 10.5 of the Discharge Today guidance set out that “[o]n the rare occasions that a decision is not reached within the timeframe the parties paying for the care should continue to do so until the relevant ongoing care assessments are complete.”
11. Under Discharge Today, the expectation was that a person’s care would move to normal funding arrangements once all health and social care assessments had been completed.

Care Act 2014

12. Local authorities have a duty to arrange care and support for those with eligible needs. Section 14 of the Care Act 2014 gives local authorities discretion to choose whether or not to charge for services they arrange and provide.
13. Where a local authority decides to charge, it must carry out a financial assessment to decide what a person can afford to pay towards their care. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014. Local authorities should also have regard to the Care and Support Statutory Guidance that accompanies the Care Act 2014.
14. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.
15. In certain circumstances, a local authority may choose to treat a person as if a financial assessment had been completed. In order to do so, the local authority must be satisfied, based on the evidence provided by the person, that they can afford, and will continue to be able to afford, any charges due. This is known as a ‘light-touch’ financial assessment.
16. A local authority may consider it appropriate to complete a light-touch financial assessment when a person has significant financial resources and does not wish to undergo a full financial assessment.

Continuing Healthcare funding

17. Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. The threshold for meeting the CHC Checklist is set low.
18. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. This assessment is completed using a decision support tool (DST). The DST is a record of the relevant evidence and decision-making. The DST should be completed within 28 days of the CHC Checklist unless there are ‘valid and unavoidable’ reasons for it taking longer.
19. If a person is not eligible for full CHC funding, they may still be eligible for Funded Nursing Care (FNC). This is NHS funding provided to a residential nursing home towards any nursing care services the person receives.

Background

20. Mrs B had a diagnosis of dementia, along with other health problems. In August 2020, she was living at home with a package of care. That month, Mrs B suffered a fall and was admitted to hospital. After a brief period of treatment, Mrs B was discharged home.
21. Mrs B was readmitted to hospital later that month following a further fall.
22. By 15 September, Mrs B was medically stable and considered ready for discharge. However, the professionals treating Mrs B agreed she now had nursing needs.
23. Following discussion with the family, the Council arranged for Mrs B’s discharge to Wray Common Nursing Home under Pathway 3 of the discharge to assess model. A Council officer noted that Mrs B would likely fund her own care at the conclusion of the discharge to assess funding period. Mrs B was discharged to the nursing home later that day.
24. The Council arranged for a social worker to complete a Care Act assessment for Mrs B on 28 September. This found Mrs B had eligible social care needs and required support with various activities of daily living. The assessment also found Mrs B’s behaviour was becoming more challenging to manage. The assessing social worker noted Mrs B was more resistant to support with her personal care and could be aggressive.
25. The social worker spoke to Mr H as part of the assessment. She noted Mr H “confirms his mother in law will be self funding her longterm [sic] care”. However, the social worker noted Mrs B’s family were considering other care options. This included exploring Mrs B’s discharge home with an increased care package. The family also wanted to investigate the possibility of transferring her to a different nursing home.
26. On 1 October, Mr H confirmed that Mrs B would remain in the nursing home on a long-term basis. The social worker again noted that Mrs B would self-fund her care. Mr H asked if the discharge today funding period could be extended to 15 October while he made arrangements with the nursing home.
27. On 13 October, the ICB received a referral from the nursing home. The ICB completed a CHC checklist for Mrs B 29 October. The outcome of the checklist was that Mrs B required a full CHC assessment.
28. The following day, the Council advised the nursing home that the last day of discharge to assess funding would be 22 October. The Council asked the nursing home to liaise with Mrs B’s family regarding ongoing charging arrangements.
29. The CHC assessment meeting took place on 13 November. The assessment found Mrs B did not have primary health need and so was not eligible for full CHC funding. However, the assessment found Mrs B did have some nursing care needs and so was eligible for FNC funding.
30. The ICB shared the outcome of the assessment with Mrs B’s family on 24 November.
31. In February 2021, the ICB made enquiries with the Council regarding a number of funding matters. These enquiries revealed that discharge to assess funding remained in place for Mrs B.
32. On 26 February 2021, the ICB ended the discharge to assess funding for Mrs B. The ICB backdated the end of the funding period to 22 November 2020, the point at which both health and social care assessments had been completed. The ICB also paid FNC contributions from that date.
33. The ICB subsequently clawed back over £12,000 in fees from the care home for the period between 22 November and 26 February. The care home in turn invoiced Mrs B for the outstanding fees.

My analysis

34. The discharge to assess process was intended to ensure that patients did not remain in acute hospital beds any longer than necessary. Under this process, once a patient was declared medically fit for discharge, they would be discharged back into the community. A person’s care would be funded by the NHS for up to six weeks, to allow for any health and social care assessments to be completed.
35. The ICB provided the discharge to assess funding. However, the Council was responsible for managing the discharge to assess process. Under this process, the Council was responsible for informing the ICB when a person’s discharge to assess funding was due to end.
36. Mrs B’s placement in the care home was initially funded under the discharge to assess model.
37. The case records show that, once all relevant health and social care assessments had been completed, Mrs B would be required to fund her own care. This is because she had savings above the upper capital limit as set out in the statutory guidance. Mrs B’s family was aware of this.
38. It is clear there was some confusion surrounding when the discharge to assess funding would end. The case records show the Council advised the care home on 14 October 2020 that the funding would end on 22 October and that Mrs B would self-fund her care from that point. The care home confirmed it would contact Mr H directly to arrange a private contract.
39. However, the Council failed to inform the ICB it had completed a social care assessment and that the discharge to assess funding should end on that date.
40. The ICB completed the CHC assessment on 13 November and informed the family of the outcome on 24 November. At this stage, the discharge to assess funding remained in place. Indeed, it was not until February 2021 that the ICB became aware the Council had completed its social care assessment. The ICB then backdated the end of the discharge to assess funding to 22 November, the point at which all health and social care assessments had been completed.
41. This was over three months after the funding should have ended. This delay was attributable primarily to the Council’s failure to contact the ICB to advise that the funding should end. This was fault by the Council. Nevertheless, I am not persuaded the Council bears sole responsibility for this delay.
42. The case records show Mrs B’s family was aware funding was due to end on 22 October and that Mrs B would be required to fund her care from that point as she had savings above the upper capital limit. It was open to the family to make further enquiries with the Council or ICB when the discharge to assess funding remained in place beyond this date. I found no evidence in the records of the Council or ICB to suggest the family pursued this.
43. Mr H told the Ombudsmen the care home queried the ongoing discharge to assess funding with the ICB in October or November 2020. He said the ICB informed the care home that funding would remain in place until further notice or until an assessment had been completed. I found no evidence of this contact in the ICB’s records. However, if the care home did make enquiries with the ICB as described, it is unclear why it did not challenge the ICB’s position given the Council had already informed it that funding would stop on 22 October.
44. In summary, there was uncertainty surrounding the end of Mrs B’s discharge to assess funding. I recognise this situation caused Mr H considerable confusion. I have addressed this in my recommendations below.
45. However, it is not in dispute that Mrs B was required to fund her own care (minus the ICB’s FNC contribution) from the point the discharge to assess funding ended. This was in keeping with the Council’s power to charge as set out in the Care Act 2014. The case records confirm that Mrs B’s family were aware of this. As a result, I can find no basis on which to recommend a reimbursement of her care home fees.

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Agreed actions

46. Within one month of my final decision statement, the Council will write to Mr H to apologise for its failure to notify the ICB when Mrs B’s discharge to assess funding should end. This caused unnecessary confusion for Mrs B’s family.
47. The Council should provide us with evidence it has completed the above action.

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Final decision

48. I found fault by the Council as it failed to notify the ICB that Mrs B’s discharge to assess funding should end.
49. In my view, the action the Council will now take represents an appropriate and proportionate remedy to the injustice caused to Mr H by this fault.
50. I have now completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman