Summary: The Ombudsman has found fault in the way the Council decided not to complete a needs assessment. While that fault did not cause Mr or Mrs C an injustice, the Council has agreed to take action to prevent similar problems occurring for other service users.

The complaint

1. Mrs B complains that Cumbria County Council (the Council) did not tell her father, Mr C, how to find a care home in Cumbria or provide care options to him before a hospital discharged his wife, Mrs C. Mr C had to find a care home himself and could only find a place available two hours away in Scotland. Mr C disagrees he declined a needs assessment for Mrs C before discharge. Rather, he says the social worker did not clearly explain what the assessment was for, which caused him confusion. Mr C would not have chosen to move his wife to Scotland if the Council had provided more support before the hospital discharged Mrs C.
2. Mrs B says the care home in Scotland charged a top-up fee which has an outstanding balance of £25,000. Mrs B says her father should not have to pay that. The Council should pay the top-up fees. Mr C has incurred costs (fuel, accommodation, and meals) having to visit his wife twice a month. Also, Mrs B says events have caused the family significant distress.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. If we are satisfied with a council’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. I have read the papers submitted by Mrs B and Mr C, and discussed the complaint with Mrs B. I have considered the Council’s comments about the complaint and its supporting documents. I have also taken the relevant law and guidance into account before coming to a view.
7. Mrs B, Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Background

8. Mrs C lacks mental capacity.
9. Hospital 1 provided rehabilitation to Mrs C from December 2017 until May 2018.
10. During Mrs C’s stay at Hospital 1, the Council assessed Mrs C’s needs and decided it could support her with a package of care at home on discharge. The Council’s financial assessment found Mrs C had savings over the upper capital limit (£23,250). Therefore, she would have to pay for her own care until her savings fell below the upper capital limit. Mr C understood that, so arranged private carers for his wife when Hospital 1 discharged her. However, that private support did not go ahead after Mrs C developed sepsis and Mr C suffered a heart attack. In May 2018 Hospital 1 transferred Mrs C to Hospital 2 for treatment.
11. In July 2018, Hospital 2 referred Mrs C to the Council for support on discharge. At the same time, Mr C and Mrs B were looking at various nursing homes across the country who could support Mrs C.
12. On 5 July 2018, a social worker offered to assess Mrs C’s needs and finances. Mr C said he was aware the Council would not fund his wife’s care. Therefore, he refused the assessments. Mr C said he had already arranged a private residential placement at a nursing home in Scotland.
13. A week later Mrs C moved to the nursing home in Scotland which cost £1,000 per week. Before Hospital 2 discharged Mrs C it completed a continuing healthcare (CHC) checklist. It said Mrs C was eligible for a full CHC assessment.
14. In late July 2018, Mr C’s daughters told the Council they were confused who was going to fund Mrs C’s care. The Council said it would only pay an agreed amount toward Mrs C’s care when her capital fell below £23,250. However, the family would have to pay a top-up if they wished for their mother to remain at the nursing home in Scotland.
15. In August 2018, the Council reassessed Mrs C’s needs, and agreed to contribute an agreed amount toward Mrs C’s support in Scotland.
16. In November 2018, Mr C signed an agreement with the Council to pay a top up fee of £359 per week. That was the difference between the Council’s usual contract price for residential care and the nursing home’s weekly charge.
17. There was then extensive correspondence between the Council, the nursing home and Mrs C’s family about unpaid debts. Also, the Council offered Mrs C a residential placement closer to Cumbria. However, the family felt Mrs C should not move from the nursing home in Scotland as it would be detrimental to her health and wellbeing.

Analysis

18. I consider there was fault in the way the Council offered Mrs C support before a hospital discharged her in July 2018. I will explain why below.
19. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”. When the Council arranges a care home placement, it has to follow these rules when undertaking a financial assessment to decide how much a person has to pay towards the costs of their residential care.
20. The Care and Support Statutory Guidance 2014 state that people who have over the upper capital limit (£23,250) are expected to pay for the full cost of their care and support. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.
21. In May 2018 the Council offered Mr C at least one affordable, suitable care package when Mrs C would return home with support. Because Mr C understood his wife would have to pay the full cost of her care, he decided to arrange private support instead. We know that private support did not go ahead. However, this showed before July 2018 Mr C understood how the Council could support Mrs C, and the process involved.
22. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
23. The Care and Support Statutory Guidance 2014 say an adult with possible care and support needs or a carer may choose to refuse to have an assessment. In these circumstances local authorities do not have to carry out an assessment. However, where the local authority identifies that an adult lacks mental capacity and that carrying out a needs assessment would be in the adult’s best interests, the local authority is required to do so.
24. Mr C says he refused the needs assessment because he understood the social worker offered Mrs C another CHC assessment.
25. From the social workers notes, on 5 July 2018, she clearly recorded offering Mrs C a needs and a financial assessment. The social worker rightly understood Mrs C’s needs had most likely increased after suffering with sepsis. In response to my enquiries, the social worker said: “At no point was there any indication of any potential confusion on the part of [Mr C] with regards to him mixing up the offer of a Care Act assessment with the [CHC] process, or was any discussion held around an outstanding DST”.
26. While I do not doubt Mr C’s recollection of events, on the balance of probabilities, I am persuaded the social worker explained what the needs assessment was and why she was offering it.
27. The social worker’s records showed Mr C had already arranged his wife’s care on discharge privately. Therefore, the social worker told Mr C there was no role for the Council. However, I do not agree. From the Council’s evidence, the social worker did not consider Mrs C’s lack of mental capacity before deciding whether to carry out the assessments in her best interests. That was fault, and not in line with the relevant guidance.
28. On the balance of probabilities, if the social worker had considered Mrs C’s mental capacity, she would have carried out a needs assessment. However, there is no way of knowing what the outcome of that assessment would have been. I cannot say the social worker would have offered to support Mrs C in residential care. Also, Mr C had previously favoured private support in May 2018. So, I cannot say if he would have accepted the Council’s support. Therefore, I cannot say there was any injustice to Mr and Mrs C from the Council’s fault. However, there is a potential injustice to those who lack mental capacity. The Council should take further action to prevent similar problems occurring for other service users.
29. Mrs B said the hospital did not complete the full CHC assessment after it discharged her mother. So, it was not clear if the NHS would fund Mrs C’s care and support on discharge.
30. “NHS continuing healthcare (NHS CHC) is a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs that have arisen because of disability, accident, or illness.” (NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012).
31. It is the responsibility of the relevant NHS body, not the council, to assess the person’s needs and decide whether they are eligible for CHC.
32. I cannot hold the Council responsible for those delays. The Council would have been involved in supporting the NHS’s decision. However, in July 2019 the hospital and the local clinical commissioning group were responsible for arranging the meeting and completing the decision once Mrs C moved to Scotland. The Council has provided an email to show in June 2019 it referred Mrs B to complain to the NHS. I consider the Council’s actions were appropriate.

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Agreed action

33. Within eight weeks, the Council has agreed to ensure its staff are aware of their responsibilities when someone who lacks mental capacity, or their representative, refuses a needs assessment. The Council should identify if there is any need for additional training in this area.

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Final decision

34. I have completed my investigation and uphold Mr C’s complaint. There was fault by the Council, however it did not cause Mr C an injustice. However, the Council will take action to remedy the potential injustice to others.

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Investigator's decision on behalf of the Ombudsman