Summary: There is no evidence of fault by the Council in the way it dealt with the charges for Mrs Y’s care. There is some evidence of poor communication with Mrs Y’s representative and for this it should apologise.

The complaint

1. Ms X complains about the way the Council dealt with charges for her aunt’s (Mrs Y) short stay in residential care.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with an organisation’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

4. I have:
• considered the written complaint and discussed it with Ms X;
• considered the correspondence between Ms X and the Council, including the Council’s response to the complaint;
• made enquiries of the Council and considered the responses;
• considered relevant legislation;
• offered Ms X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

5. The Care and Support (Charging and Assessment of Resources) Regulations 2014, and the Care and Support Statutory Guidance 2014 (“the Guidance”) set out the charging rules. When a council decides to charge for care, it has to follow these rules when deciding how much a person has to pay towards their care.
6. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt that permanent admission is required. The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance 2014 set out charging rules for temporary residential care. When the Council arranges a temporary care home placement, it must follow these rules when undertaking a financial assessment to determine how much a person has to pay towards the costs of this stay.

Key Facts

7. Ms X’s aunt, Mrs Y, is in her nineties. She went into residential care directly from hospital for a period of assessment on 21 April 2022. Ms X and another relative hold Lasting Power of Attorney for Mrs Y for property and financial affairs and health and welfare.
8. As part of the assessment the Council referred Mrs Y for an NHS Continuing Healthcare Assessment (CHC). CHC is an ongoing package of health and social care that is arranged and funded solely by the NHS where an individual is found to have a primary health need. The NHS framework for continuing healthcare and for NHS funded nursing care sets out the principles and processes for deciding eligibility.
9. The Council received notification of the outcome of the CHC assessment on 19 May 2022. Mrs Y was not deemed to be eligible for CHC funding, but she was deemed eligible to receive funded nursing care. NHS funded nursing care is when the NHS pays for the nursing care component of nursing home fees. The NHS pays a flat rate directly to the care home towards the cost of this nursing care.
10. Ms X says that on completion of the CHC assessment she expressed her wish that Mrs Y return home. She says she did not agree with the Council’s assessment that Mrs Y needed a permanent residential care placement.
11. The records show the Council agreed a 12-week property disregard to enable the Council and the family to plan Mrs Y’s long-term care and support needs.
12. A “12-week disregard” refers to the time when a person first enters long-term residential care. At this stage the Council must work out who will be funding that person's care.
13. Ms X says she began asking the Council for information about associated costs of care for Mrs Y from 17 May 2022. The Council sent Ms X a financial assessment form for completion.
14. The Council’s records show it provided Ms X with a ‘Paying for Care’ factsheet on 24 May 2022 which Ms X confirms she received, but she was not given information relating to Mrs Y. She says she contacted the Council’s finance team by email numerous times to request this. Between 2 and 14 June 2022 she received automated acknowledgments, but these were not followed up.
15. The assessor recorded “A financial assessment form has been sent to [Ms X] to complete on [Mrs Y’s] behalf and return to the financial assessment team. The reason for a new financial assessment is the proposal for care home placement and it has been explained to the family that if she has savings above the capital threshold, then she will be self-funding her care but if she has savings below the capital threshold she would make a contribution towards her care. It was also explained that, if her current placement would not accept RBK's care home rates, then a suitable alternative placement would be sourced. Also any assets will be taken into consideration for the financial assessment”.
16. Ms X returned the financial form to the Council by email on 23 May 2022 along with a note saying, “Please note it is not fully completed as I am waiting for the outcome of the care assessment that took place on the 13th May”.
17. The Council completed an assessment of Mrs Y’s care needs on 24 May 2022. This concluded Mrs Y required 24-hour care and support and met the criteria for a residential care placement. I have had sight of the assessment and I can confirm it is completed properly and without fault. The Council also completed a mental capacity assessment (MCA).
18. A 'mental capacity assessment' determines whether an individual has the capacity to make decisions, this can be day-to-day decisions, such as what to eat or wear, or larger and potentially life-changing decisions to do with health, housing or finances. The assessment concluded Mrs Y lacked capacity “…around care and support/change of accommodation with the view to receive appropriate care and support” and that it would be in her best interests to remain in the care home. I have had sight of the assessment and can confirm it is completed properly and without fault.
19. The records show the Council’s concern about Ms X’s proposal that Mrs Y be cared for at home, and that this may not be in Mrs Y’s best interests. Notes of internal discussions held in May and June 2022 record concerns about a possible deprivation of Mrs Y’s assets. A senior officer of the Council asked that further information be gathered. A holding email was sent to Ms X advising that further assessments of Mrs Y would be undertaken.
20. In July 2022 the Council had gathered the information and decided that Mrs Y’s case should be transferred to a locality team for allocation of a social worker to consider the risks/benefits to Mrs Y of returning home. The transfer note confirms Mrs Y was entitled to the 12-week property disregard, that the Council’s panel had approved the residential placement, but Ms X wished Mrs Y to return home. Concerns about Ms X’s proposal were recorded as a ‘potential difference in opinion’ about where [Mrs Y’s] care and support needs would best be met and concerns that decisions taken were in her best interests.
21. Ms X believes the Council undertook additional assessments which were unnecessary and that this contributed to the delay in Mrs Y returning home. She believed Mrs Y to have ‘mainly basic needs’ which could be met at home.
22. On 3 August 2022 Ms X sent an email expressing her concern that Mrs Y had no allocated social worker and that the family’s wishes for Mrs Y to return home had not been addressed. She says this delayed the planning for Mrs Y’s return home. Ms X said the finance team had not been in contact, other than to request further information She also expressed her concern that the 12-week disregard period was coming to an end.
23. Following Ms X’s email, the Council recorded Mrs Y’s case needed urgent allocation to a locality social worker. The records show some confusion about which social services team was responsible. A Council officer telephoned Ms X the same day to explain the case would be transferred to the relevant team and that an assessor from that team would be in touch.
24. The newly allocated assessor visited Mrs Y in the care home on 12 August 2022 and met with care home managers. The assessor reviewed all previous assessments, care plans, care records and records of discussions with care home staff and family. Mrs Y was reported to be happy and settled in the care home. Both the assessor and care home managers concluded Mrs Y required 24-hour care and recommended she remain in the care home.
25. The assessor also met with Ms X. Ms X reported the family had no concerns about the care provided, but they requested information about the cost of the placement (£1500 per week) and queried whether a more cost-effective care home could be found. She also said Mrs Y would be having a CHC review in September 2022 and questioned whether decisions about Mrs Y’s care could wait until then as they hoped Mrs Y would be awarded full CHC funding. She said she would speak to the family about the possibility of caring for Mrs Y at home.
26. Ms X sent a follow-up email to the assessor reiterating her queries. She asked if Mrs Y were to “…stay a resident at [Care Home], what the weekly costs would be and how the deferred payment scheme works, what interest is added and what the set up fees are for this and how long can payments be deferred for, are the interest rates fixed or variable. As you are aware the family preferred wishes would still be to go [Mrs Y] home, with appropriate care. Could the local authority provide the 4 care visits a day, if the family were able to provide interim care during the day and overnight care at their own cost. If this was able to happen, what would the cost be to [Mrs Y] to provide care 4 times a day in the home. With the local authority support and the family providing the care at the times of the day and night, this would ensure [Mrs Y] will get 24 hour care and her needs met”.
27. Ms X says it was not until 17 August 2022 that she and Mrs Y became aware the stay was chargeable and that charges of £4000 had accrued. She says had the family been aware of the charges sooner they would have been better prepared and would have removed Mrs Y from the care home.
28. I have had sight of the emails Ms X exchanged with the Council. These show she frequently sought updates on the long-term plans for Mrs Y and the associated assessments and costs. However, it is clear Ms X was still considering all available care options as she discussed the possibility of a less expensive residential care placement and the option of reapplying for CHC, which would only be applicable to a residential care placement. For example, on 26 August 2022, Ms X sent an email to Council in which she asked “…if she were to stay in the care home she would continue to pay £227.34 per week?”. And, in a further email “Is there any care homes in the area that may be less expensive that can provide the care she requires? If so please provide details of these”.
29. The Council accepts there was a delay in confirming the specific charge but says pages 5 - 7 of the paying of care leaflet provided details of how charges are calculated. It says it was ‘regrettable’ that Ms X did not know the final charge Mrs Y was required to pay for her care during the 12-week property disregard period. The leaflet provides sufficient information that Ms X would have realised that Mrs Y would be liable to pay a charge. I have had sight of the generic charging information provided to Ms X. It sets out the circumstances under which a 12-week disregard can be applied and goes on to say, “You will still be financially assessed to see how much you can contribute from your income”.
30. On 20 August 2022 Ms X informed the Council that two family members intended to move into Mrs Y’s home to provide 24-hour care and support.
31. Following this the Council completed a further assessment on 2 September 2022 to ensure Mrs Y had all the necessary equipment in place. This confirms that family members would move into Mrs Y’s home to provide her with 24-hour care, and that Mrs Y would return home on 6 September 2022.
32. Ms X believes Mrs Y should not have to pay the outstanding charges. She submitted a formal complaint to the Council on 15 September 2022. The Council responded in writing on 25 October 2022. I have had sight of the letter. The author responds in detail to each point raised and concluded the complaint is not upheld.

Analysis

33. There are numerous elements in this complaint requiring consideration which include the assessment of Mrs Y’s care needs, the Council’s communication with Ms X, the allocation of a social worker and the financial assessment resulting in the outstanding invoice for care fees.
34. I have found no fault in the way the Council assessed Mrs Y’s care needs. Neither have I found fault in the subsequent mental capacity assessment. The assessments are completed properly and in accordance with the law.
35. Ms X believes some of the assessments of Mrs Y to have been unnecessary. I do not agree. The Council acted properly and proportionately. It had a duty to ensure Mrs Y’s wellbeing and that any decisions were made in her best interests.
36. There is evidence of some delay by the Council and some poor communication, but I am not persuaded this caused Mrs Y any significant injustice. She was in a care home where her needs were met and it is clear Ms X was still considering all available care options until late August 2022, so I do not consider the Council’s action caused a delay in Mrs Y returning home. The information suggests, that had Mrs Y been eligible for CHC funding, she may have remained in residential care permanently.
37. However, I do consider the Council could have better communicated with Ms X. Automated emails were not followed up and the Council could have kept her updated more frequently. This is fault by the Council for which it should apologise.
38. I am not persuaded by Ms X’s claim that she was unaware that care was chargeable. Whilst she may not have been aware of the exact cost, the information provided by the Council was clear that care was chargeable. However, the Council could have provided information about the specific cost to Mrs Y sooner than it did. It acknowledges this.
39. Ms X says had she known the costs she would have removed Mrs Y from the care home sooner than she did. I cannot see how this could have been achieved as Ms X did not confirm the plans for Mrs Y’s care until late August 2022, and without this care in place, Mrs Y would have been unable to return home. Therefore, I cannot conclude the outstanding charges should be waived.

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Agreed action

40. The Council should, within four weeks of the final decision, provide Ms X with a written apology for poor communication.

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Final decision

41. There is no fault by the Council in the way it assessed Mrs Y and dealt with the charges for her care.
42. There is some evidence of poor communication with Mrs Y’s representative for which it should apologise.
43. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman