Summary: Mr K complained about the Council’s handling of his father’s care funding. He said it took the Council four months to tell him the outcome of the care assessment. As a result, he said he experienced financial loss as the Council asked him to pay the care charges. He also said this caused him and his father distress. We found the Council at fault for failing to carry out its responsibilities under the Government’s COVID-19 Hospital Discharge Guidance. It has agreed to pay Mr K the difference in his father’s care home costs and apologise for the distress it caused Mr K and his father.

The complaint

1. The complainant, whom I shall refer to as Mr K, complained about the Council’s handling of his father’s (Mr X) care funding. He said it agreed to tell him when the funding nursing care assessment had been completed, but it failed to do so for four months.
2. As a result, Mr K said he has experienced financial loss as he was asked to pay for Mr X’s care costs for the four-month period. He also said he and Mr X experienced distress due to the concerns about the care costs.

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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. 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)
4. 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

5. As part of my investigation, I have:
• considered Mr K’s complaint and the Council’s responses;
• discussed the complaint with Mr K; and
• considered relevant law and guidance;
6. I gave Mr K and the Council the opportunity to comment on a draft version of this decision, and I have considered the comments I received.

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What I found

Relevant law and guidance

The Care Act 2014 (The Act)

7. The Act, and the Care and Support Statutory Guidance 2014, sets out the circumstances for when a person may need to pay for their care arrangements.

The COVID-19 Hospital Discharge Service Requirements (the Guidance)

8. In response to the COVID-19 pandemic and the need to keep hospital beds free, the Government introduced temporary measures for the NHS to pay for some care costs. The Guidance started on the 19 March 2020 and said the NHS should:
• discharge all patients as soon as it was safe to do so;
• fully fund the cost of new or extended out-of-hospital health and social care support packages for those who would otherwise remain or be admitted to hospital; and
• not assess individuals for NHS Continuing Healthcare funding until the end of the COVID-19 emergency period.
9. The Guidance also said local authorities should:
• take the lead on the contracting responsibilities to expand domiciliary care, care homes and reablement services in the local area paid for by the NHS COVID-19 budget.
• ensure there are good tracking mechanisms in place to track care placements so that care users do not get lost in the system;
• suspend the need for funding panels for hospital discharge; and
• provide social care capacity to work alongside local community health services to provide a single point of contact for hospital staff, which should ensure real time communication between the hospital and the Council, not just by email.

The Reintroduction of NHS continuing healthcare

10. The Government ended the temporary measures on the 1 September 2020. It said individuals, who had been placed in care homes under the Guidance, should be assessed through NHS continuing healthcare assessments within six weeks to determine how their care should be funded.
11. It also said funding would continue during the six-week period, or until the assessment had been completed. However, if:
• the assessment is not completed within six weeks, the Clinical Commissioning Group (CCG) remains responsible for the payment of the care; or
• the assessment is completed, but the individual is assessed as not eligible for NHS continuing healthcare funding, the local authority is responsible for the funding until the Care Act assessment is completed.

What happened

12. In early 2020 Mr X was admitted to hospital for treatment. He stayed in hospital until March 2020 when the Government announced its Guidance on the temporary hospital discharge measures.
13. The Hospital told the Council Mr X should be discharged to a care home as set out in the Government’s Guidance. This was because he would normally have remained in hospital due to his care needs.
14. The Council placed Mr X in a care home (the Care Provider). The NHS funded his care under the NHS COVID-19 budget until the end of August 2020.
15. In August 2020, the Council told Mr K the temporary Guidance was ending by the end of the month. So, Mr K gave the Care Provider notice to end the care arrangement.
16. The Council said the Care Provider confirmed it had asked the CCG to complete a funded nursing care (FNC) assessment.
17. In early September 2020 the Council’s Social Worker spoke with Mr K. She told him the funding had ended and Mr X would now become a self-funder.
18. The following day, the Council sent Mr K a letter about Mr X’s care funding. It said the Government had issued further guidance. This meant it should not withdraw funding until all assessments for longer term care plans were completed. It also said:
• it was unlikely the CCG and the Council would complete the assessments within the six weeks set out in the Guidance;
• Mr X’s current funding would continue until his assessments were completed;
• it would be in touch and keep Mr K informed about its progress; and
• it would confirm Mr X’s longer term funding arrangements.
19. The Council said the CCG completed its continuing healthcare checklist in September 2020. It found Mr X was not entitled to a full assessment of FNC.
20. Four months later, Mr X was still in the care home. So, the Care Provider contacted the Council for payment of Mr X’s care charges.
21. In December 2020, the Council told Mr K that Mr X was a self-funder, and he was responsible to pay for the Care Provider’s charges since September 2020.
22. In response to the Council’s information, Mr K moved Mr X to a more affordable care home without delay.

Mr K’s complaint

23. Mr K complained to the Council. He said it had told him Mr X would remain funded until the CCG and the Council had completed its assessments. However, it had not told him about the outcome of the assessments, nor that Mr X would be responsible for the care charges.
24. In response the Council told Mr K that Mr X was responsible for the care charges. This was because he became a self-funder in September 2020 and its Social Worker had informed Mr K at the time. It also said:
• its Social Worker had failed to end the agreement for the care placement in its system at the time. This was done 10 days later, and Mr X was therefore responsible for the care charges from this date;
• it acknowledged Mr K had received its letter the day after he spoke with its Social Worker, which explained the funding would continue. It apologised and accepted this could cause some confusion;
• no one from the Council got in touch with him because it had closed the case. However, it said if Mr K was unsure about the funding, he should have contacted the Council;
• its normal process was to send a termination order to care providers. The Care Provider told the Council it had not received this. However, the Council did not have any records of what had happened. It accepted it was partly at fault as its Social Worker did not speak with the Care Provider about the change in funding, which is normally good practice; and
• the COVID-19 pandemic was unprecedented, and this was likely to be a contributory factor in the confusion that had arisen between all parties.
25. Mr K disagreed with the Council’s view and asked the Ombudsman to consider the matter.

Analysis

26. The Reintroduction of NHS continuing healthcare Guidance says the Council was responsible for Mr X’s care charges from September 2020 until it had completed its Care Act assessment. This was because the CCG told the Council it had completed its NHS continuing healthcare assessment.
27. The Guidance also says the Council was responsible to lead the commissioning of care agreements and communication with the NHS and Mr K.

Was there fault by the Council?

28. I acknowledge the Council did not agree it was responsible for Mr X’s care charges between September and November 2020. It said this was because its Social Worker spoke with Mr K and told him Mr X would be a self-funder in September 2020.
29. However, the Council also told Mr K it agreed it was at fault for causing confusion for:
• sending its letter, after its Social Worker spoke with Mr K, which explained Mr X’s funding would continue until further assessments was completed;
• its Social Worker failed to close the case in the Council’s system until nine days later; and
• its Social Worker did not contact the Care Provider when the Council terminated its agreement to pay for the care.
30. In addition, I also found the Council was at fault for:
• failing to tell Mr K the NHS had completed its assessment, which determined Mr X was not entitled to receive funding for his care arrangement. This is because the Guidance says it was the Council’s responsibility to do so; and
• failing to keep proper records of its termination of Mr X’s care agreement with the Care Provider. This is because it cannot show whether it sent the termination or not, and I would expect such records to be readily available.

Who should pay for Mr X’s care charges?

31. It is my view the Council was responsible for Mr X’s care charges between September 2020 and early December 2020. This is because it was reasonable for Mr K to rely on the Council’s letter, which it sent after its Social Worker had spoken with him. The letter referred to new Government Guidance, which set out the Mr X’s care funding would continue until further assessments were done. As the Council did not contact Mr K, as it said it would, he could not be aware that Mr X had become a self-funder. The Council had therefore not discharged its responsibilities under the Government’s Guidance.
32. I acknowledge the Council believes Mr K should have contacted the Council if he was unsure about the care charges. However, I note its letter said it was unlikely it and the NHS would be able to complete the assessments within six weeks. It was therefore not unreasonable for Mr K to expect this process to take longer before the Council would contact him.

Injustice

33. If the Council had not been at fault, Mr X would have needed a care home from September 2020. He would therefore have had care charges.
34. Mr K immediately moved Mr X to a more affordable care home, when he became aware Mr X was a self-funder. I have therefore found the Council should pay the difference in care charges between the Care Provider and Mr X’s new care home. This would be from September 2020 to December 2020, when the Council told Mr K about Mr X’s status as a self-funder.
35. In addition, I also found Mr K and Mr X experienced some distress due to the Council’s handling of Mr X’s care funding. I am satisfied an apology from the Council is enough to remedy the distress it caused them.

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Agreed action

36. To remedy the injustice the Council caused to Mr K and Mr X, the Council should, within one month of the final decision:

• Apologise in writing to Mr K to acknowledge the distress he and Mr X experienced as a result of the Council’s faults;
• pay £9625.33 to Mr K, or directly to the Care Provider. This is the amount equal to the difference in cost between the care homes for the period in which the Council failed to discharge its responsibilities under the Government’s Guidance.

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Final decision

37. There was fault leading to an injustice, it is on this basis I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman