Summary: We upheld a complaint the Council failed to invite a member of Mrs C’s family to a continuing healthcare checklist assessment. This contributed to the Council failing to take account of information relevant to its assessment and resulted in delay to the NHS considering Mrs C’s eligibility for funding towards her health needs. This caused avoidable distress which the Council has agreed to remedy, detailed at the end of this statement as well as agreed service improvements.

The complaint

1. Mrs B complained the Council failed to correctly carry out a continuing healthcare checklist when her late mother, Mrs C, lived in residential care in October 2022. Mrs B says it failed to ensure a member of Mrs C’s family attended the meeting where the social worker went through the checklist. This contributed to the social worker making a decision that did not take relevant information into account.
2. Mrs B notes that a later checklist completed in January 2023, resulted in a referral to the local NHS Integrated Care Board (ICB). This in turn agreed Mrs C qualified for funded nursing care. Mrs B considers the outcome of the October 2022 assessment should have been at least the same. This in turn would have helped inform decisions around Mrs C’s care.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. 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

6. Before issuing this decision statement I considered:

• Mrs B’s written complaint to the Ombudsman and any supporting information she provided;
• correspondence between Mrs B and the Council which pre-dated our investigation of this complaint;
• information provided by the Council in reply to written enquiries;
• any relevant law, Government guidance or Council procedure referred to below;
• any relevant guidance published by this office, referred to below.

7. I also gave Mrs B and the Council chance to comment on a draft version of this decision statement and / or provide any further evidence they considered relevant to the content. I took account of their responses before finalising the content of the decision statement.

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What I found

Relevant Legal and Administrative Considerations

8. Some people with long-term complex health needs qualify for free health and social care arranged and funded solely by the NHS, known as continuing healthcare.
9. Some people who do not qualify for continuing healthcare will still qualify for funded nursing care. This is when the NHS pays for the nursing care component of nursing home fees. The NHS will only pay funded nursing care to those living in registered nursing homes (not residential care homes).
10. To decide if someone qualifies for continuing healthcare or funded nursing care, NHS professionals will undertake an assessment of eligibility. A published “decision support tool” sets out how the assessment should look at a person’s needs across different domains. These cover the following areas:

• breathing
• nutrition (food and drink)
• continence
• skin (including wounds and ulcers)
• mobility
• communication
• psychological and emotional needs
• cognition (understanding)
• behaviour
• drug therapies and medicine
• altered states of consciousness.

11. Usually, before the NHS takes this decision, a medical professional or a social worker will complete an initial checklist. This is to decide if the NHS should carry out a full assessment of eligibility to go through the matters set out in paragraph 10.
12. The checklist runs through each of the eleven domains listed above. The assessor decides what need the person receiving care appears to present on a scale between ‘A’ and ‘C’. Category A is the highest level of need. The checklist will trigger a full assessment for NHS continuing healthcare (using the decision support tool) if the assessor finds:

• two or more domains are category A needs;
• five or more domains are category B, or one is category A and four are category B;
• the person has a category A need in the domains of breathing, behaviour, psychological and emotional needs or drug therapies and medicine.

13. The Council says that it expects its social workers to follow NHS guidance which explains when and how they should complete the checklist. The guidance advises completing the checklist “at the right time and location and when the individual’s ongoing needs are clearer”. It says this will usually be in a community setting (as opposed to a hospital setting).
14. The guidance says a person receiving care should know in advance when the assessor will complete the checklist. And they should know they can have a representative present to “contribute their views” about the person’s needs.
15. The guidance also says the assessor should communicate the outcome of the checklist “clearly and in writing” to the individual or their representative “as soon as is reasonably practicable”. It says they can do this by sending a copy of the completed checklist.
16. The guidance says assessors should record reasons for their thinking about what need someone has in each domain area. The Council has a flowchart used to help its social workers which says they should provide descriptions of need “obtained from the health / social care record”.
17. Some people discharged from hospital leave under ‘discharge to assess’ arrangements. Put simply, they move from hospital to a community setting (often a care home) and receive up to six weeks of paid care, during which time their council will assess their care needs. The Council says that under this arrangement it does not carry out checklist assessments for two weeks after someone leaves hospital.

Key facts

18. Mrs C left hospital in mid-September 2022 under the ‘discharge to assess’ arrangements. Staff at the hospital assessed Mrs C needed accommodation in a residential care home. She moved to a residential care home in the Council’s area (‘RC1’). The hospital Mrs C moved from was around 60 miles from her home address in Bradford. A previous investigation by this office, carried out with the Parliamentary and Health Service Ombudsman, found fault in the delay by health service trusts in repatriating Mrs C to Bradford. Also relevant is that at the time Mrs C moved back to Bradford, her husband (Mr C) was seriously ill. Mrs C had not seen Mr C several weeks because of her hospital admission. Mrs B explained these factors led the family to accept RC1 as a placement for Mrs C, even though they did not consider it would meet her needs in anything but the short-term. Because, while she stayed there Mrs C had to share a room, and the client mix at the care home, with different needs to her own, caused some distress.
19. I saw notes kept by the Council’s social worker showing they had spent several days identifying a care home with a vacancy. They had information from the hospital that following a fall and leg fracture Mrs C could no longer weight-bear. She needed the support of two staff for transfers. She needed two hourly checks and support with continence care. She had respiratory problems and her skin integrity was a particular concern. A previous social worker had also completed a brief social care needs assessment while Mrs C was in hospital which identified largely the same concerns. The social worker spoke to the hospital discharge team, recording that Mrs C’s needs “seemed to be high” for someone moving to residential care. The hospital discharge team confirmed this was its view. Mrs B notes that on Mrs C’s discharge from hospital, it provided Mrs C with a letter detailing her medical history and medications. She also notes that District Nurses had to visit Mrs C regularly to help with her medication.
20. When Mrs C returned to Bradford, her husband was in hospital because of his illness. He died around a week after Mrs C entered RC1.
21. Around three weeks into her stay at RC1 and on a Monday, the social worker telephoned Mrs B. She said she had arranged to visit Mrs C on the Wednesday. Her notes say that part of the purpose of her visit was to find out if Mrs C needed residential or nursing care. Mrs B could not visit the home at the time because of illness. But her sister could visit on the Wednesday and planned on attending. This was also when Mrs C had arranged to move out of RC1 and move to another residential care home, RC2. This was closer to her home and considered a more suitable placement by Mrs C and her family given the difficulties with RC1 explained above.
22. Thirty minutes after making the note of her call to Mrs B, the social worker recorded a conversation with RC1. In this she arranged to visit RC1 the following day, on the Tuesday. The social worker did not record telling Mrs B or her sister of this change of plan.
23. At her visit the social worker undertook a brief assessment of Mrs B’s care needs and spoke to her and to a senior care worker in the care home. She completed a continuing healthcare checklist. The form contains the questions:

• was the individual involved in the completion of the checklist? and
• was the individual offered the opportunity to have a representative such as a family member or other advocate present when the checklist was completed?

The social worker did not answer either question.

24. The social worker considered Mrs C had a ‘category B’ need for support in the domain areas of mobility and skin integrity. They considered she had a ‘category C’ need for support in all other domains. Consequently, the social worker did not refer Mrs C’s case to the ICB for a full assessment of eligibility.
25. There is no note the social worker told Mrs B, her sister or Mrs C the outcome of the checklist assessment. There is also no record the social worker put any information in writing about the outcome.
26. In late October 2022 Mrs B made a complaint to the Council raising various matters associated with the care of both Mrs C and Mr C. In that letter she also asked the Council to reassess Mrs C’s potential eligibility for NHS funding towards her care. Mrs C was then readmitted to hospital. Mrs B contacted the Council again in early December 2022 and asked a second time if the social worker could complete the checklist again. She asked that this time it “actively involve” Mrs C’s family. She repeated the request a third time around a week later. This time the social worker replied and agreed to a reassessment, which followed in early January 2023.
27. When the social worker completed the second checklist both Mrs B and her sister attended. In addition, before the assessment Mrs B put in writing the family’s views on Mrs C’s need for support in each of the domains. This time the social worker assessed Mrs C had a ‘category A’ need for support with her mobility. She also had a ‘category B’ need for support in the domain areas of breathing, continence, skin integrity, psychological and emotional needs and drug therapies and medicine. Later the social worker amended the checklist to categorise Mrs C’s need for support with skin integrity to a ‘category A’ need after receiving further information from Mrs B.
28. As a result, the social worker referred Mrs C’s case to the ICB for a full assessment of Mrs C’s eligibility for continuing or funded nursing care.
29. The ICB arranged for a meeting in early February 2023 to complete the decision support tool. Present were Mrs B and her sister, Mrs C, the social worker, a nurse from the ICB, and a representative from RC2. Social work notes show the ICB arranged the meeting. There was no attendance from a District Nurse.
30. The ICB decided Mrs C qualified for funded nursing care, but not continuing healthcare. The social work notes say at the time the family did not dispute the outcome. They also suggested that Mrs C did not want to now move to a nursing home, having become settled at RC2. So, Mrs C did not go on to benefit from any funded nursing care payments.

My findings

31. I considered first the timing of when the Council completed the initial checklist assessment, in October 2022. Mrs B has questioned if the Council should have undertaken the assessment sooner, on Mrs C’s discharge from hospital. I did not consider it was under any duty to do this. The Council did not have to wait two weeks (or any other set time period) to complete the checklist. But Government guidance suggests checklists should happen in community settings (such as residential care homes) and wait for the needs of the person to be ‘clearer’. This is unlikely to be immediately on discharge from hospital. So, I did not consider it a fault, the Council waited two to three weeks to complete the checklist.
32. However, there was fault in how the Council arranged to complete the checklist. Government guidance says the person assessed should have information about the assessment in advance. They should also have the opportunity to have a representative, such as a family member, present. There was no evidence the Council gave Mrs C (or Mrs B) information about the assessment checklist in advance. Nor that it gave Mrs C opportunity to have a family member present at the assessment. Further, while the social worker gave Mrs B some limited notice of the assessment, they then changed the day of the assessment without telling her and without explanation. These faults meant Mrs C did not receive support at the assessment and her family could not contribute any information to it.
33. Further, the social worker then failed to share the outcome of the assessment with Mrs C or Mrs B. The combined lack of information before and after the assessment left Mrs C and her family with inadequate information to understand or challenge the assessment. This too was a fault.
34. I left open the possibility the assessment also did not, in any event, consider other relevant information available, which would be a further fault. Mrs B drew attention to both the hospital discharge letter and the regular involvement of district nurses in Mrs C’s care, while she stayed at RC1. Possibly some fault may lie with the care provider if it did not draw these matters to the social worker’s attention. But this could also have suggested a lack of curiosity and scrutiny of the health and social care records by the Council. Because as I set out above, the Council knew Mrs C had several health needs and had earlier questioned the hospital decision to discharge to residential care.
35. I went on to consider whether, as Mrs B believed, the lack of any family member (and / or further scrutiny of the records) also impacted the outcome of the assessment. I focused on the four domain areas where in January 2023 the Council decided Mrs C had a ‘category B’ need (or higher), having assessed those as ‘category C’ needs previously.
36. In each case I considered if the later ‘category B’ award rested on a change in Mrs C’s circumstances which only occurred after October 2022. I considered this applied in the decision that Mrs C had a ‘category B’ need for her psychological and emotional needs. In October 2022 the social worker recorded Mrs C understandably upset following the death of her husband. But there was nothing to suggest she had withdrawn or received a diagnosis of depression or anxiety. However, these factors were present in January 2023.
37. But in the other three domain areas I did not find the change in category rested only on a change in circumstance after October 2022. In particular the factors which led the social worker to assess Mrs C as having a ‘category B’ need in the domains of breathing and drug therapies and medicine were long-standing. The difference at the January 2023 assessment was the social worker knew more about Mrs C’s long-term health conditions and how these impacted on her day-to-day life. I have no doubt this was because of the support she received from her daughters during the assessment. They drew attention to what was already in the record of Mrs C’s care, compiled over time.
38. In the domain of continence, I considered there was evidence showing Mrs C had a greater need in January 2023 than October 2022. But also, the social worker learnt about long-standing needs Mrs C had in this area. So, I did not find the change in category relied solely on that.
39. On balance therefore had Mrs C received support from her family in October 2022 the checklist outcome would have been different. The Council would have recorded Mrs C had ‘category B’ needs (or higher) in five, not two, of the eleven domain areas. So, it would have referred her case to the ICB for a full assessment of eligibility.
40. If that full assessment had taken place three months sooner, then on balance it is likely it would have reached the same outcome as in February 2023. This is because there was no significant change in Mrs C’s needs during this time. So, but for the fault in this case, Mrs C’s eligibility to receive funded nursing care would have been established around three months sooner. It was a source of distress to Mrs B that this did not happen, and that she had to ask three times before the Council answered her request to re-assess. That was her injustice.
41. However, I could not conclude the fault made a material difference to Mrs C’s care. While Mrs C had an eligibility to funded nursing care, but lived in a residential care home, that care could be considered sub-optimal. However, Mrs B made no complaint about the care Mrs C received at RC2. Mrs C’s decision to move to RC2 also pre-dated the Council’s first checklist assessment. And clearly by February 2023, Mrs C had settled at RC2. Neither she, nor her family, wanted her to move. This view may have been different had Mrs C’s right to funded nursing care become known four to six weeks into her stay (which realistically is how long it would have taken). But I lacked evidence to make that finding. So, any remedy in this case had to focus therefore on the distress identified above and that Mrs C, in discussion with her family, missed the opportunity to make such a decision.
42. Mrs B explained to me her view the ICB should have found Mrs C eligible to receive continuing healthcare, both in February 2023 and in October 2022. She advanced reasons for this view, which were clear and thought through. However, my role is not to scrutinise decisions taken by the ICB. Without a successful challenge to the February 2023 decision, I could not find enough evidence to say the outcome should have been different. I also considered the evidence suggested Mrs C’s needs became slightly greater between October 2022 and January 2023 (although there was no significant difference between the two). So, this made it appear less likely the NHS would have found her eligible for continuing healthcare at the earlier date.
43. Part of Mrs B’s dissatisfaction with the ICB decision also rested on the absence of a district nurse at the critical meeting in February 2023. I checked and found the ICB responsible for organising that meeting, which included deciding who to invite. So, this was not a line of enquiry I could pursue, because it did not involve any decision taken by the Council. I found the Government placed no expectation councils involve district nurses (or other health professionals) directly in the checklist assessment, which it intends should be a quick exercise.

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Agreed action

44. The Council has accepted the findings set out above. To remedy the injustice caused to Mrs B it has agreed that within 20 working days of this decision, it will:
1. provide her with an apology, accepting the findings of this investigation, and taking account of the guidance we publish on apologies contained within our guidance on remedies at section 3.2; (see Guidance on remedies - Local Government and Social Care Ombudsman).
2. make a symbolic payment of £500 in recognition of her distress.
45. In addition, the Council has agreed to take action to improve its services following this complaint. Within two months of this decision, it will issue a reminder to all staff trained to undertake continuing healthcare checklist assessments of the need to:
1. provide information about the checklist process before undertaking such an assessment;
2. ensure those assessed know they can have a representative such as a family member, present at the assessment and that it gives them enough time to arrange this;
3. provide information on the outcome of the checklist assessment after it is complete, including a copy of the assessment.
46. The Council will provide us with evidence it has complied with all agreed recommendations.

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Final decision

47. For reasons set out above I upheld this complaint finding fault by the Council caused injustice to Mrs B. The Council accepted these findings and agreed action to remedy that injustice. So, I completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman