Summary: Mr X complained about a lack of guidance and information from the Council about the charges for his late mother’s care at a care home. The Council was at fault for the delay in providing information about care charges and in carrying out a financial assessment. This meant Mr X received a large and unexpected care bill and Mrs Y was unable to make an informed decision about her care. The Council has agreed to apologise and write off some of the care charges. It has also agreed to ensure financial information is provided to care home residents at the point of assessment.

The complaint

1. Mr X complained about a lack of guidance and information from the Council about the charges for his late mother, Mrs Y’s care at a care home. He says he was never told there would be a charge and the Council failed to assess her for continuing health care (CHC) eligibility. Mr X says this left his mother with unexpected care charges.

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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. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of other bodies as the NHS or GPs. (Local Government Act 1974, sections 25 and 34A, as amended)
4. 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

5. I considered the information provided by Mr X and the Council’s response to our enquiries. I have considered the relevant law and guidance.
6. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

Charging for care and support

7. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
8. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for admission to last for a limited period, such as respite care, or there is doubt a permanent admission is required.
9. In the case of a short-term resident in a care home, the council has discretion to assess and charge as if the person were having their needs met other than by providing accommodation in a care home. Once a council has decided to charge a person, and it has been agreed they are a temporary resident, it must complete the financial assessment in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance.
10. Once a placement becomes permanent, the value of a person’s home is normally taken into account as part of the calculation of a person’s capital in the financial assessment. Anyone who has over the upper capital limit (currently £23,250) must pay the full cost of their residential care home fees. However, the value of their property should be disregarded in the calculation of capital for 12 weeks to give the individual and/or their family the opportunity to sell the property. This is often called the 12-week property disregard.
11. The Government has issued ‘Care and support statutory guidance’ (CSSG) on using the Care Act 2014. CSSG says councils must provide information:
• “to help people understand what they may have to pay, when and why and how it relates to people’s individual circumstances”;
• that includes “the charging framework for care and support, how contributions are calculated…top-ups…and how care and support choices may affect costs”.
12. During the COVID-19 pandemic, the Government allocated additional funding for NHS and social care discharge support. The aim of the funding was to free up NHS capacity via the rapid discharge of patients out of hospital. This was to help support the NHS during the COVID-19 pandemic.

Continuing Healthcare (CHC) funding

13. CHC is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment.
14. Individuals with a rapidly deteriorating condition that may be entering a terminal phase, may require ‘fast-tracking’ for immediate provision of NHS Continuing Healthcare, with no requirement to complete the checklist. It is for the ‘appropriate clinician’ to determine that the individual has a primary health need and whether the individual’s needs meet the fast-track criteria.

What happened

15. Mrs Y lived at home on her own. She was admitted to hospital after a fall. The hospital assessed Mrs Y required a temporary placement for 24 hour care so her needs could be further assessed to determine whether she could return home. In October 2021 Mrs Y was discharged from hospital to a care home. The Council’s notes record the social worker based at the hospital advised the care home that Mrs Y’s care would be funded for up to four weeks and then she would receive a financial assessment to determine if she needed to contribute to her care costs.
16. The assessment plan completed by the hospital social worker dated mid-October 2021 stated Mrs Y required a temporary residential placement to allow further assessment of needs. It stated ‘the NHS will fully fund the cost of non-residential/residential care services to support the hospital discharge process. This will be for a period of 1 day up to a maximum of 4 weeks. She has been advised that will therefore not be required to contribute to the cost of her care provision until an assessment of her care and support needs is completed by a Locality Social Worker. If, following this assessment, [she] requires ongoing services to help with her care and support, a charge may be incurred’
17. Three days later Mrs Y was allocated a locality social worker who carried out a review with Mrs Y in early November 2021. Mr X was not present.
18. The assessment set out Mrs Y required support including with transfers, personal care, meal preparation and medication prompts. It said Mrs Y needed temporary 24 hour care until it was safe for her to return home with a package of support. The social worker ticked that a CHC checklist was not required. There was no reference to charging for care within the assessment.
19. In mid-November 2021 the Council’s allocations panel agreed to a temporary 24 hour residential placement for Mrs Y.
20. Also in mid-November an Occupational Therapist (OT) and the social worker. visited Mrs Y’s home with Mr X to assess whether Mrs Y could return there. They made a referral for a hospital bed and other equipment.
21. The Council notes record that at the end of November 2021 the care home contacted the Council to query payment. The social worker advised Mrs Y’s case had gone to panel for approval of a temporary placement.
22. In Mid-December 2021 the social worker contacted Mr X to advise the Council was having difficulty finding a care provider to meet Mrs Y’s needs. The notes record Mr X understood and knew Mrs Y was safe at the care home. In early January, the social worker contacted the Council’s care facilitator who confirmed they had still not identified a care provider.
23. In late January 2022 Mrs Y was admitted to hospital and diagnosed with a terminal illness. Following her hospital admission the social worker confirmed to the hospital Mrs Y should be discharged back to the care home as a temporary placement until arrangements could be made for care at home. Mrs Y was discharged back to the care home two weeks later.
24. In mid February 2022 a Council officer contacted Mr X to arrange to carry out a financial assessment. Mr X told the officer he understood the care was being provided free of charge as the Council was not able to find a home care package to support Mrs Y. The officer spoke with the social worker who said they had explained the care was not chargeable at first but was chargeable from when it became a temporary placement.
25. The Council wrote to Mr X in late February 2022 setting out Mrs Y’s contribution of £251.83 per week from 2 November 2021. It also sent Mr X a factsheet around paying for residential care.
26. In late February 2022 Mr X’s wife, Mrs X, spoke to the social worker. The notes record Mrs X asked about CHC fast tracking. The social worker advised Mrs X to contact the GP regarding this. The social worker also contacted the GP to advise them of the procedure.
27. In early March 2022 the Council identified a care agency who could carry out the care package. The notes show the social worker spoke with Mrs X and at that time Mrs Y was not well enough to go home.
28. In April 2022 the Council first invoiced Mr X for Mrs Y’s care. In mid-April 2022 the Council wrote to Mr X to say there had been an undercharge and Mrs Y owed over £4000 in respect of her assessed contributions for November 2021 to March 2022.
29. In late April 2022 the social worker carried out a reassessment. They noted Mrs Y had made good improvements, her health had stabilised and she wanted to return home. They noted Mrs Y would require four visits by two carers each day. In early May the OT visited Mrs Y and noted she was able to transfer with the equipment. They ticked a CHC checklist was not required at this time. They noted Mrs Y was aware it was a chargeable service requiring a financial assessment.
30. Mrs Y returned home with a care package in place in mid May 2022. The Council sent Mr X another invoice for care charges which showed no charges between November and April 2022.
31. In late May 2022 Mr X complained to the Council. He said he was told the care in the care home would be free and he was not told until the financial assessment was conducted in late February 2022 that Mrs Y would be charged for her care.
32. In late June 2022 a nurse advised the Council they believed Mrs Y was now eligible for CHC fast track and would put in a request for a District Nurse assessment. Mrs Y died the next day.
33. The Council responded to Mr X’s complaint in late June 2022. It did not uphold his complaint. It said there was no evidence the social worker advised him the care would be free. It said the placement was agreed and funded by COVID-19 funding for up to four weeks. Following that the placement was chargeable. It said this was agreed by Mrs Y with the hospital social worker at the point of initial assessment.
34. Mr X remained unhappy. He raised issues around CHC funding and confusing invoices. The Council responded further in August 2022. It explained the social worker considered Mrs Y did not require a CHC checklist to be completed. The decision regarding fast track CHC was a matter for a health professional and not the Council. It explained it had invoiced Mr X in April 2022 for the charges from November to April 2022. The invoice of May 2022 showed no charges for November to April 2022 as it had already invoiced Mr X separately for this period.
35. The Council, in response to my enquiries, said the Finance Department had a substantial caseload to work through brought about by the pandemic and the introduction of COVID-19 funding which significantly increased its workload. It had also introduced a new case management system and had staffing issues in this period which led to delays in carrying out financial assessments and issuing invoices.

Findings

36. The assessment plan completed by the social worker at the hospital in October 2021 made reference to the fact Mrs Y may be charged for her care. However, there was no explanation of what this meant and no information about charging was provided to Mrs Y or Mr X at this time. This was fault.
37. The Council was entitled to charge Mrs Y for her care but the guidance is clear that councils must provide sufficient information to help people understand what they may have to pay, when and why.
38. Mr X says he was told Mrs Y’s care would be free due to the delay in securing her a home care package. I cannot know exactly what was said to Mr X but I have seen no evidence to support this. However, when the NHS funded care ended there is no evidence the Council informed Mr X or Mrs Y that she would be assessed for a financial contribution to her care charges. This was fault.
39. When the social worker completed a need assessment in November 2022, there is no reference in the assessment to show Mrs Y was told she would now be required to pay a contribution to her care costs. Mr X was not present at the assessment and there is no evidence Mrs Y was provided with any advice or leaflets about charging at this time.
40. The Council did not contact Mr X regarding a financial assessment until mid- February 2022. This delay was fault and meant Mrs Y received a large backdated bill for her contribution to her care costs which she was not expecting.
41. When it then wrote to Mr X to arrange the financial assessment the Council provided Mr X with a fact sheet about charging which set out the requirement to contribute to the cost of care and how this would be calculated. From this time (mid February 2022), I am satisfied the Council acted appropriately to ensure Mr X was aware that Mrs Y would be charged a contribution to her care costs and the basis on which this would be calculated. There is no evidence of fault in the way the Council completed the financial assessment.
42. There was a significantly delay in the Council issuing Mrs Y an invoice for her care charges. However, Mr X was aware from late February of Mrs Y’s calculated weekly contribution. The Council had also written to Mr X to advise there would be a large bill produced so I cannot say this delay in itself caused a significant injustice.
43. Mr X found the invoices confusing. However, the Council in its complaint response explained the invoices were separate and covered two charging periods. The Council’s explanation about the separate invoices appropriately dealt this confusion so I will not investigate it further.
44. Mr X also complained the Council failed to assess Mrs Y for CHC eligibility. In completing Mrs Y’s assessments in November 2021 and April 2022 the social worker ticked that a CHC checklist was not required. I am therefore satisfied the social worker considered whether this was appropriate and there is no evidence of fault in the way they reached this decision. When Mrs Y’s condition deteriorated, any decision around eligibility for CHC fast track was a decision for an appropriate clinician such as a doctor or nurse and not the Council. The records show the social worker explained this to Mr X’s wife, Mrs X. The Council was not at fault.
45. Although there was a delay in the Council identifying a suitable home care package for Mrs Y, the evidence shows Mrs Y was happy and settled in the care home and she and Mr X were happy for her to remain there until a suitable care package could be sourced. However, at that time Mr X and Mrs Y were not aware of the requirement to pay a financial contribution towards the cost of the care home and her financial contribution for a home care package was likely to have been less. This lack of clear information was fault and meant they did not have sufficient information to make an informed decision about her care at that time.

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Agreed action

46. Within one month of the final decision the Council has agreed to:
• apologise to Mr X for the delay in explaining the care charges associated with Mrs Y’s residential care; and
• write off the care charges for the period from November 2021 to mid-February 2022 when it first provided Mr X with its factsheet and advised Mr X that Mrs Y required an assessment for her contribution to her care charges.
47. Within two months of the final decision, the Council has agreed to ensure:
• clear information, in writing, is provided about the potential for future care charges by the Council’s hospital based social workers when patients are discharged into residential care from hospital.
• the factsheet on charging for residential care is provided at the same time as the Council carries out a needs assessment for residential care so that people are made aware of the potential charges as soon as possible.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation. There was evidence of fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman