The Ombudsman's final decision:
Summary: The Ombudsmen have found fault by a care home, a CCG and a Council with the how they carried out reviews of a resident’s care and nursing needs. This led to the resident being in a nursing placement longer than they should have been which cost more than a residential placement. The organisations have agreed to pay the resident £7682, which is the amount they were overcharged because of the faults identified.
- Mrs G complains on behalf of Mrs B about BUPA Care Homes (CFC Care) Ltd. (the Home), Lancashire County Council (the Council) and Greater Preston Clinical Commissioning Group (the CCG). In particular she complains the Home, the Council and the CCG failed to review Mrs B’s nursing care needs from March 2014 until January 2017.
- Mrs G does not consider Mrs B needed nursing care from soon after she moved to the Home and this meant Mrs B paid a higher rate than she should have.
The Ombudsmen’s role and powers
- 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).
- The Local Government and Social Care Ombudsman investigates complaints about adult social care providers. We decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. Where something has gone wrong we refer to those actions as ‘fault’. (Local Government Act 1974, sections 34B, and 34C, as amended)
- If the actions of a health and social care provider have caused injustice, the Ombudsmen 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.
- 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)
How I considered this complaint
- In reaching this decision, I took account of the information Mrs G provided to the Ombudsmen. I made enquiries of the Home, the Council and the CCG, and took account of the documents and comments they provided, including relevant medical and care records.
What I found
- Before April 2015 councils had a duty to decide whether to provide or arrange community care services based on their eligibility criteria. If a person’s assessed needs met a council’s eligibility criteria it had a legal duty to provide enough support to meet those assessed eligible needs. Each council could set its own threshold in accordance with the statutory guidance, Putting People First, which set out an eligibility framework for all adult social care services (FACS).
- Councils were required to review a new service user’s care plan once it provided community care services. Government guidance required the frequency of the on-going review to be “proportionate to the circumstances of the individual”. It was regarded as good practice for a council to carry out a review within four to six weeks after the service started, and after that at least yearly.
- From April 2015, the Care Act 2014 came into force. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone who asks for an assessment, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve.
- Section 27 of the Care Act 2014 gives an expectation that councils should conduct a review of a care and support plan no later than every 12 months. A light touch review should be considered six to eight weeks after the plan has been agreed. The review should be performed in a timely manner proportionate to the needs to be met. In addition, the Act provides a duty on councils to conduct a review if a request for one is made by the adult or a person acting on the adult’s behalf.
Fundamental Standards of Care
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) set out the fundamental standards for registered providers of care services.
- The Regulations says the care and treatment of service users must be appropriate and meet their needs (section 9). Care and treatment must not be provided in a way that significantly disregards the needs of the service user (section 13(4)(d)). A health provider must act in an open and transparent way in relation to care and treatment (section 20).
- The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care (November 2012 (Revised)) (the National Framework) is the key guidance about Continuing Healthcare. It states that where an individual is eligible for Continuing Healthcare funding the CCG is responsible for care planning, commissioning services and case management.
- 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.
- 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 makes a recommendation about whether a person is eligible for CHC or for NHS-funded nursing care (FNC), which is set at a weekly rate. The relevant CCG will then make a final decision which must uphold the recommendation of the DST in all but exceptional circumstances.
- The National Framework says if the NHS is commissioning, funding or providing any part of the care, a case review should be undertaken no later than three months after the initial eligibility decision. Reviews should then take place annually, as a minimum.
- The National Framework says CHC eligibility should be considered where there have been changes to an individual’s care needs. Providers should normally refer to the relevant CCG for a review to be done.
The Home’s care bandings
- The Home’s periodic care need assessments include ‘Care Need Bandings’ from 1-5. Bands 1-2 identify residents who have low care needs, their nursing care can be met by community services and their needs are stable and predictable. If someone falls under these bands, their needs can be met with a residential care placement. Bands 3-5 identify residents with moderate to high, and complex care needs, requiring more than one hour of nursing care a day. Their needs would be unstable and/or unpredictable. Bands 3-4 would need a nursing care placement. Band 5 would need a complex nursing placement.
The Home’s ownership
- At the time of the events complained about the Home was owned by BUPA Care Homes (CFH Care) Limited. The Home has since been sold to another provider. However, BUPA Care Homes (CFH Care) Limited has retained responsibility for any actions taken at the time of its ownership. Any findings in this complaint have therefore been made about BUPA Care Homes (CFH Care) Limited and do not relate to the care home’s new owners.
- Mrs B had a history of dementia and other illnesses. She was admitted to hospital in February 2014 following a fall at her home. During the hospital discharge planning, Mrs B agreed to move to a care home.
- The CCG completed a CHC assessment on 21 March 2014. This determined she was not eligible for CHC funding, but she did have some nursing needs due to a grade 3 pressure sore requiring treatment. The Council also noted this in its assessment of Mrs B’s care needs. The Home’s pre-admission assessment of Mrs B noted Mrs B’s pressure care needs and recorded that a registered nurse needed to give Mrs B her medication.
- Mrs B moved to Greenfield Care Home on 14 April 2014. This was a nursing home placement. The placement was partly funded by the Council, subject to a financial assessment. The Council completed a financial assessment on 24 April and assessed Mrs B’s contribution as being £199.25 per week. The Home also received FNC from the CCG.
- The records show Mrs B’s pressure sore healed quickly. The Home’s care assessments from September 2014 onwards note Mrs B’s skin was intact. It also noted her mobility improved from admission and she was transferring without aids or assistance. The Home recorded her needs were ‘stable’ and ‘predictable’ and her care need banding was ‘Band 1’.
- The records show the Care Trust reviewed Mrs B on 24 April 2014. It noted Mrs B kept removing her pain relief patch and it was therefore unclear how much benefit this was having. It said the GP should review or possibly discontinue.
- The records show the memory clinic reviewed Mrs B on 10 July 2015. The review noted Mrs B was not experiencing any side effects from her medication and a further review was planned in 12 months.
- Mrs B sold her home and became self-funding which means she was responsible for the Home’s full fees, less the FNC contribution, from 4 March 2016.
- On 22 February 2017, the CCG’s nurse assessor completed a review of Mrs B’s needs. She was still not eligible for CHC and no longer eligible for FNC as she did not have any nursing needs.
- The Council completed an assessment of needs on 23 February 2017
- The Home later changed Mrs B’s status to residential care from 19 January 2017 so she then paid less each month. The Home refunded any overpayments she had made after this date.
- Mrs G says care records show Mrs B did not need nursing care after the first few months of her stay at the Home. When she became liable to pay her own fees, she was charged more as a private nursing care resident than she would have been as a private residential care resident.
- Mrs B’s nursing needs on admission related to her pressure sore care and support with medication. However, her pressure sore healed soon after and although she remained at high risk of developing pressure sores, she no longer had needs that specifically needed nursing care. The Home’s review assessments five months after her admission record her as ‘stable and predictable’ and/or under band 1. This suggested residential care would meet Mrs B’s needs.
- The Home had noted a registered nurse should give the medication. However, the CHC assessment did not note this. The records show Mrs B’s GP managed her medication and the Care Trust’s memory clinic also reviewed her dementia medication.
- In response to the Ombudsmen’s enquiries, the Home said it does not believe Mrs B had nursing needs after her pressure sore healed.
- The records show there was a change in Mrs B’s nursing needs after her pressure sore healed. By the time the Home reviewed Mrs B’s care in September 2014 and May 2015, and after the medication review had happened, the indications are that Mrs B did not need nursing care. The Home’s own assessments also noted this. The Home had a duty under the Regulations to ask the CCG and/or the Council to review the suitability of her placement and therefore her FNC needs. It was fault that it did not do this.
- Under the National Framework, the CCG should have reviewed Mrs B’s FNC needs three months after her placement and then each year. The CCG told the Ombudsmen that due to the number of patients needing a review, it had to prioritise the review process. It said it would prioritise initial assessments and reviews needed due to a change in need. While acknowledging the lack of resources, this does not alter the fact the CCG did not adhere to the National Framework. Under the guidance there should have been three reviews that took place before the reassessment in February 2017 after Mrs B’s family had raised concerns. This is fault.
- The CCG has told the Ombudsmen it is currently reviewing its processes in line with the new CHC National Framework.
- The Council assessed Mrs B’s needs and commissioned services. It therefore had a duty under the Putting People First guidance and, more latterly, the Care Act to review Mrs B’s care needs. It should have done this 1-3 months after she moved to the Home then yearly thereafter. The Council told the Ombudsmen that reviews did not happen due to pressures of work. The review of Mrs B’s needs assessment did not take place until February 2017. I acknowledge the resourcing issues the Council has, but as it did not adhere to the relevant standards, this is fault.
- There are difficulties saying what the outcome of any assessment would have been retrospectively. However, the records show clear evidence of improvement in Mrs B’s health needs from only a few months after she moved to the Home. The records show she was settled and had very few nursing interventions after this. Therefore, on the balance of probabilities, I consider if any of the Home, the Council or the CCG had acted without fault between 2014 and 2017, it is likely they would have found Mrs B no longer needed a nursing placement with FNC.
- The injustice to Mrs B was minimal until 4 March 2016 when she became liable for her full care fees. Prior to this the Council had financially assessed Mrs B and her contribution would have been the same for a nursing or residential placement. Without the reassessments, Mrs B was potentially in a placement that was not most suited to her needs. However, the records show she was mostly settled and happy with her placement so I cannot see this directly caused her distress or had a detrimental impact on her wellbeing.
- After March 2016, there was approximately £167 a week difference between a nursing placement (less the FNC) and a residential placement. Based on the records, I consider it is likely Mrs B would have been assessed as only needing a residential placement from before March 2016. Mrs B’s status and payments were changed from January 2017. This means she overpaid for around 46-weeks, totalling approximately £7682.
- I consider the faults by all three organisations complained about led to this injustice.
- The Home, the Council and the CCG have agreed the following actions within one month of the date of the Ombudsmen’s final decision:
- to apologise to Mrs G for the distress, time and trouble caused to her and Mrs B by the faults identified and having to pursue the complaint;
- to pay Mrs B’s account £7682 (split equally between the three organisations) to cover the amount she has overpaid due to the faults identified.
- the CCG will take steps to ensure reviews are carried out in accordance with the National Framework;
- the Council will take steps to ensure reviews are carried out in accordance with the Care Act.
- I find fault by the Home in not acting within the fundamental standards set out in the Regulations by advising the CCG or the Council about changes in Mrs B’s nursing needs.
- I find fault by the CCG in not reviewing Mrs B’s nursing needs in line with the National Framework.
- I find fault by the Council for not reviewing Mrs B’s care needs in accordance with Putting People First guidance and/or the Care Act.
- The faults I have found by all three organisations, on the balance of probabilities, led to Mrs B being overcharged for a nursing placement when she did not need this. The organisations have agreed actions to address the injustice.
- I did not make service improvement recommendations to the Home as I did not consider this would be proportionate due to changes of ownership and governance arrangements.
- As the organisations have agreed actions to address the injustice caused by the faults, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman