The Ombudsman's final decision:
Summary: The Ombudsmen found fault by the Council and Livewell Southwest with regards to their communication with the complainant about care charges. However, the Ombudsmen are satisfied this did not result in a significant injustice for the complainant.
- The complainant, who I will call Mrs D, is complaining on behalf of her husband, Mr D. Mrs D complains that Plymouth City Council (the Council) and Livewell Southwest (Livewell) failed to properly explain the charging arrangements Mr D’s care. Mrs D says she was led to believe the NHS would continue to fund Mr D’s care home placement pending further assessment. However, she says she later received an unexpected bill for care charges from the Council. Furthermore, Mrs D complained that the Council did not provide her with a choice of care homes for Mr D.
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).
- 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.
- 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 final decision, I considered information provided by Mrs D and discussed the complaint with her. I also considered comments and documentation from the Council and Livewell. Furthermore, I considered comments from all parties on my draft decision statement.
What I found
Relevant legislation, guidance and local arrangements
- When a person is discharged from hospital, they may be eligible for Intermediate Care services. This is a programme of care provided for a limited period of time to assist a person to maintain or regain the ability to live independently. This can include a range of services, including physiotherapy and occupational therapy.
- Intermediate care is provided on the basis of a comprehensive assessment, resulting in a structured individual care plan. It is time-limited and is normally no longer than six weeks in duration (and frequently less). Intermediate Care is funded by the NHS.
- Livewell manages the Intermediate Care Team in the Plymouth area. This is an integrated team comprised of health and social care professionals. This includes social workers acting on behalf of the Council.
Social care charging
- The Care Act 2014 (the Care Act) is the legislation that sets out local authorities’ duties and powers in respect of adult social care. This is accompanied by detailed guidance for practitioners entitled the Care and Support Statutory Guidance 2014 (the statutory guidance).
- Section 14 of the Care Act gives local authorities the power to charge for care and support services they provide or arrange. However, charges may only cover the costs the council incurs. Local authorities must assess a person’s finances to decide what contribution he or she should make to a personal budget for care.
- If a person is admitted to a care or nursing home and there is an agreed plan for the placement to last for a limited period, that person is considered to be a temporary resident.
- The Care and Support (Charging and Assessment of Resources) Regulations 2014 (the Regulations) and the statutory guidance set out charging rules for temporary residential care. When the Council arranges a temporary care home placement, it has to follow these rules when undertaking a financial assessment to determine how much a person has to pay towards the costs of this stay. The Council can either charge the person under the rules for temporary residential charging or treat the person as if they are still living in the community.
Choice of care homes
- The statutory guidance explains that, where the care planning process has determined that a person’s needs are best met in a care home, the local authority must provide for the person’s preferred choice of accommodation, subject to certain conditions.
- Section 8.37 of the statutory guidance says that “[t]he local authority must ensure that the person has a genuine choice of accommodation. It must ensure that at least one accommodation option is available and affordable within the person’s personal budget and it should ensure that there is more than one of those options. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or in certain circumstances the resident is willing and able to pay the additional cost.”
- Mr D was admitted to a care home (Care Home 1) on 4 May 2018 for a period of respite care.
- Mr D subsequently suffered a fall at Care Home 1. He was admitted to hospital on 6 June 2018 for assessment.
- Following a brief period of treatment, Mr D was discharged back to Care Home 1 on 15 June 2018. This placement was initially funded by the NHS through the Intermediate Care Process.
- On 25 July 2018, a social worker and physiotherapist from the Intermediate Care Team discussed Mr D’s care with Mrs D. They agreed Mr D would not be able to return home safely at that stage and required further assessment.
- Mr D’s care transferred to the Council’s Adult Social Care Team. He moved to another care home (Care Home 2) on 27 July 2018.
- The Council wrote to Mrs D on 31 July 2018 to explain that it would need to undertake a financial assessment to calculate Mr D’s contributions towards his care.
- The Council wrote to Mrs D on 24 September 2018 with the outcome of the financial assessment. The letter detailed Mr D’s assessed weekly contribution. The Council backdated the contributions to the start of Mr D’s transfer to Care Home 2 on 27 July 2018.
- On 8 October 2018, Mr D entered long-term residential care.
- A social worker met with Mrs D and her daughter on 12 June 2018 to discuss Mr D’s discharge from hospital. The social worker established that family circumstances meant Mrs D would be unable to support Mr D at home. It was agreed that Mr D would be discharged to a care home for an initial period of assessment and review with a view to him returning home at a later date.
- Mr D was discharged to Care Home 1 on 15 June 2018 under the Intermediate Care process. This placement was funded by the NHS.
- A social worker and physiotherapist from the Intermediate Care Team completed a joint health and social care assessment for Mr D on 20 July 2018. The assessment found Mr D was doubly incontinent at that time and would require further assessment of his continence needs. In addition, the assessment concluded Mr D remained at high risk of falls and needed ongoing physiotherapy support to improve his mobility.
- On 25 July 2018, the social worker met with Mrs D at Care Home 1. The social worker noted “[w]e all agreed that a return home is not a viable option at present…I expressed that a further period of time in another residential home closer to home whilst continence assessments were completed would be an option or that [Mr D] would be able to stay at [Care Home 1] with a top up fee of approx. £144 per week…In conclusion all parties in agreement to source a residential placement [near Mr and Mrs D’s home] that will accept [Mr D] on a short stay 2 month placement whilst continence assessments are completed.”
- Mrs D explained that she would be unable to pay a top up fee. As a result, the social worker identified an alternative care home placement (Care Home 2) that would be able to meet Mr D’s care needs for the Council’s standard rate.
- Mr D transferred to Care Home 2 on 27 July 2018.
- The Council’s financial services team wrote to Mrs D on 31 July 2018. The letter explained that the Council would need to complete a financial assessment to calculate the amount he could afford to pay towards his care. The letter also asked Mrs D to provide proof of Mr D’s income.
- On 6 August 2018, the social worker wrote to Mr D. She explained that “you have now been discharged from the Intermediate Care Team. As I explained on our last telephone call your information will now be held by Adult Social Care…You are currently in an extended Adult Social Care placement at [Care Home 2] following an intermediate 6 week placement at [Care Home 1].”
- On the same day, Mrs D signed and returned a service agreement for the two-month placement at Care Home 2. This set out the fee payable for the placement commencing on 27 July 2018. The agreement also explained that Mr D’s care contribution would need to be paid direct to the Council.
- Mrs D returned the requested financial evidence to the Council’s financial services team on 23 August 2018.
- The Council’s financial services team completed the financial assessment for Mr D and wrote to Mrs D on 24 September 2018 setting out his assessed weekly contribution.
- It is important to be clear that Intermediate Care is a time-limited programme of care. It is intended to assist a person to regain the ability to live independently. Intermediate Care is provided for a maximum of six weeks. As Mr D was nearing the end of this period, Livewell and the Council completed a joint health and social care assessment in July 2018.
- In my view, the assessment was appropriately thorough and in keeping with the requirements of the Act. The assessment shows professionals involved in Mr D’s care felt he would be unable to return home safely at that stage and required ongoing care and support in the short-term. Mr D was no longer eligible for Intermediate Care, therefore, and his care transferred to the Adult Social Care Team.
- The Care Act gives local authorities the power to charge for adult social care services. As Care Home 2 was an adult social care placement, the Council was entitled to ask Mr D to pay a contribution towards the care home fees, based on an assessment of his finances. The Council’s letter of 24 September 2018 explained how it had calculated Mr D’s care contribution.
- Based on the evidence I have seen, I am satisfied Mr D was eligible to pay towards his placement at Care Home 2, commencing on 27 July 2018.
- In her complaint, Mrs D said the Council and Livewell failed to make these charging arrangements clear to her.
- The evidence shows that Livewell and the Council did make clear that Mr D’s Intermediate Care was coming to an end and that his case would transfer to the Adult Social Care Team. However, I found no evidence to suggest either organisation clearly explained to Mrs D the cost implications of this.
- I consider the social worker’s note of 25 July 2018 to be unclear in this respect. This could be read to imply that Mr D would incur a fee if he remained in Care Home 1 but would not need to pay if he moved to another care home.
- The Council did write to Mrs D to explain that Mr D would need to contribute to his care. However, the letter did not say when these contributions would start. Furthermore, although the service agreement Mrs D signed recorded the fee payable for the placement, it did not make clear who would pay this.
- The social care charging process can be confusing for service users and carers who are not familiar with it. In my view, it is understandable that confusion developed in this case. This is fault by the Council and Livewell and caused Mrs D unnecessary confusion.
- Nevertheless, my view remains that Mr D was eligible to contribute to his care from the point that he entered the adult social care placement at Care Home 2 on 27 July 2018. For this reason, I am satisfied Mr D has not been put to financial disadvantage or required to pay fees he did not owe. I can find no basis on which to recommend the Council reimburse the fees Mr D paid for this period.
- I recognise Mrs D found it distressing to receive a substantial bill for the backdated fees. Livewell has apologised for any confusion around the charging arrangements for Mr D. I consider this a reasonable and proportionate remedy in the circumstances.
- I am also pleased to note that Livewell has now introduced a standardised letter for service users leaving the Intermediate Care process. This explains that the recipient has reached the end of that process but has ongoing eligible care needs. The letter also makes clear that the recipient will now need to undergo a financial assessment to calculate his or her care contribution. In my view, this should go some way to preventing similar confusion occurring in future.
Choice of care homes
- The social worker from the Intermediate Care Team discussed potential care home placements with Mrs D during her visit on 25 July 2018. She noted that Mr and Mrs D would prefer a placement closer to their home, although Mrs D disputes this.
- The social worker initially identified two possible placements. One of these was Care Home 2. However, the social worker subsequently identified that the other placement no longer had a vacancy.
- The social worker established that Care Home 2 did have a vacancy and could accept Mr D. She called Mrs D later that day to inform her. Mrs D agreed to visit the care home that day. Mrs D subsequently informed the social worker that she was happy for Mr D to move to Care Home 2. This transfer took place on 27 July 2018.
- The statutory guidance makes clear that local authorities must ensure that “at least one accommodation option is available and affordable within the person’s personal budget”.
- I accept it would have been preferable if the Council had been able to offer more than one choice of care home for Mr D. However, Mr and Mrs D had expressed a preference for a placement closer to their home. This limited the available options. At that time, there was only one placement with a vacancy that could accept Mr D at the Council’s standard rate.
- The evidence shows the Council did identify a suitable placement in accordance with the statutory guidance and that Mrs D was happy for Mr D to move there. I find no fault by the Council in this matter.
- I found fault by the Council and Livewell with regards to their communication with Mrs D. In my view, neither organisation made clear what the cost implications would be for Mr D when his care passed from the Intermediate Care Team to the Adult Social Care Team.
- However, I am satisfied the Council acted in accordance with the Care Act and statutory guidance in determining that Mr D was eligible to contribute towards his care from the point he moved to Care Home 2 on 27 July 2018. On this basis, I do not consider Mr D has suffered a significant financial injustice.
- I have now completed my investigation on this basis.
Investigator's decision on behalf of the Ombudsman