Summary: Mrs X complained on behalf of Mrs Y. She complained Mrs Y unexpectedly received a large bill for residential care without having any information about charges from the Council. Mrs X also complained Mrs Y had to stay in the care home despite wanting to go home. Mrs X says this caused her and Mrs Y distress when they received the large bill. There was fault in the way the Council delayed completing an assessment and did not listen to Mrs Y’s wishes. Mrs X and Mrs Y suffered distress receiving the large bill. The Council should only charge Mrs Y the non-residential contribution for her care while she remained in the care home after expressing her wish to leave.

The complaint

1. Mrs X complained on behalf of Mrs Y. She complained Mrs Y unexpectedly received a large bill for care without having any information about charges from the Council. Mrs X also complained Mrs Y had to stay in the care home despite wanting to go home. Mrs X says this caused her and Mrs Y distress when they received the large bill.

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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 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)
4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a Council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. I have exercised discretion to consider events in this case back to August 2019. I reference events prior to this for context in this matter. Mrs Y did not know the final amount she would be charged until July 2022 when she was chased for payment. Mrs X has pursued matters since that date.

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How I considered this complaint

7. I read Mrs X’s complaint and spoke to her about it on the phone.
8. I considered information provided by Mrs X and the Council.
9. Mrs X 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 information

10. Sections 9 and 10 of the Care Act 2014 require Councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the Council thinks the person 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.
11. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
12. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the Council must involve any carer the adult has. The support plan must include a personal budget, which is the money the Council has worked out it will cost to arrange the necessary care and support for that person.
13. Schedule 3 to the Care Act 2014 and the Care and Support (Discharge of Hospital Patients) Regulations 2014 set out arrangements for the discharge of hospital patients with care and support needs.
14. Intermediate care and reablement support services are for people usually after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help a person to preserve or regain the ability to live independently. The National Audit of Intermediate Care lists four types of intermediate care:

• crisis response – services providing short-term care (up to 48 hours);
• home-based intermediate care – services provided to people in their own homes by a team with different specialties but mainly health professionals such as nurses and therapists;
• bed-based intermediate care – services delivered away from home, for example in a community hospital; and
• reablement – services to help people live independently which are provided in the person’s own home by a team of mainly care and support professionals.

15. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)
16. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
17. 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, or a carer’s 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.
18. When the Council arranges a care home placement, including taking responsibility for funding the package of care, it must follow the regulations when undertaking a financial assessment to decide how much a person must pay towards the cost of their residential care.
19. 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 a permanent admission is required. The person’s stay should be unlikely to exceed 52 weeks, or in exceptional circumstances, unlikely to substantially exceed 52 weeks. A decision to treat a person as a temporary resident must be agreed with the person and/or their representative and written into their care plan.
20. A Council can choose whether to charge a person where it is arranging to meet their needs. 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.
21. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
22. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

What happened

23. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
24. Mrs Y was discharged from hospital to a care home on a temporary placement in November 2018. The placement was arranged by the clinical commissioning group (CCG). Mrs Y was sent to the care home to receive physiotherapy support following an operation on her leg after a fall.
25. Mrs Y was discharged from the physiotherapy service in August 2019. This meant she was no longer receiving health funding and the arrangements for the costs of her care moved to the Council.
26. In September 2019, Mrs Y expressed to the care home staff she wanted to return home. The care home informed the Council, who noted there was an eight week wait for an assessment.
27. The Council completed the assessment in February 2020. The assessment evidenced Mrs Y had capacity to make her own decisions. It confirmed Ms Y wanted to return home. The assessment stated she would need long term support and referred her to the occupational therapy (OT) service to assess if her home was suitable for her to return. The OT completed Mrs Y’s assessment with her in March 2020, but the home visit was postponed due to the Covid19 lockdown.
28. In May 2020 the Council spoke to Mrs Y’s Daughter, Mrs Z. Mrs Z reported she was happy with the care home placement and would like Mrs Y to stay long term.
29. The Council reviewed Mrs Y’s placement in July 2020. She repeated her wish to return home, but Mrs Z said she was happy with the placement.
30. The Council sent the financial assessment forms to Mrs Y in September 2020. Mrs X reported the family did not receive any information about the financial assessment or what this involved.
31. Mrs Y completed the financial assessment form and returned it to the Council in the post. The Council did not receive this information. Mrs Y completed a new financial assessment form and the Council received it at the end of October 2020.
32. The Council wrote to Mrs Y in December 2020. The Council informed her it would charge her the full cost of her care as she did not send all the information.
33. In January 2021, Mrs Y received two final demands and an invoice totalling over seventy thousand pounds. Mrs X contacted the Council to question the bills and stated the family was not told there was a charge for care. She informed the Council she understood the care was being paid for by the NHS and when Mrs Y had questioned about any costs of care she was told not to worry. Mrs Y repeated her wish to go home with Mrs X’s support.
34. The Council completed a new care plan at the start of February 2021. The care plan confirmed Mrs Y had capacity to make decisions about her care and support, her finances and where she lived. The care plan confirmed Mrs Y’s needs could be met if she lived at home.
35. Mrs Y moved back home in the middle of February 2021 and Mrs Z moved in to support her until the Council set up the package of care. The Council contacted Mrs X and agreed to cancel the invoices Mrs Y had received. The Council confirmed it would charge Mrs Y from the date it received the completed financial assessment forms.
36. The homecare package of support started at the start of March 2021. The Council completed three financial assessments to decide how much Mrs Y should pay for her time in the care home from when it received the financial assessment forms.
37. Mrs X complained to the Council in March 2021. She said the Council sent final demand notices for a large amount of money they had not sent invoices for. Mrs X said Mrs Y was told not to worry about the money. Mrs X said when she asked for Mrs Y to move, she moved in four weeks. She feels the maximum Mrs Y should be charged is four weeks.
38. The Council responded in May 2021. It agreed it took a long time to review Mrs Y’s placement in 2019 and early 2020. The Council confirmed it cancelled all costs prior to when it received the completed financial assessment form in October 2020. The Council quoted Mrs Z’s view she wanted the care home placement to continue.
39. The Council provided a statement of Mrs Y’s account in November 2021 showing she owed £2289.10 which dated back to February 2021 and chased payment. Mrs X responded to say she disputed the charge. She repeated the care home told Mrs Y not to worry about money and Mrs Y asked to go home on multiple occasions, which the care home ignored.
40. The Council chased payment again in July 2022. Mrs X repeated she disputed the invoice and would complain to the Ombudsman.
41. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to apologise for keeping Mrs Y in the care home as long as it did and waive or reduce the fees from when she was in the care home.
42. In response to my enquiries the Council stated there were delays completing the assessment initially due to waiting times, Covid19 and delays in the process. The Council repeated Mrs Y had capacity, but said Mrs Z was happy with the placement and felt Mrs X was too.

My findings

43. There was delay in completing an assessment after Mrs Y initially requested to go home. The Council told Mrs Y there would be an eight week wait but it took five months to complete it. This is fault and Mrs Y stayed in the home longer than she needed too.
44. The Council has not evidenced it provided information about paying for residential care before Mrs Y became responsible for her charges. This is fault and caused Mrs Y distress when she received the bill.
45. The Council did not act on Mrs Y expressed wishes she wanted to go home. It appears to have given greater weight to Mrs Z’s view that she wanted Mrs Y to stay in the home. The Council repeatedly stated Mrs Y had capacity but did not act on her wishes. This is fault and Mrs Y stayed in the care home despite asking on multiple occasions to go home. Mrs Y incurred additional costs as a result.
46. The Council has not evidenced it had due regard to Mrs Y’s human rights of a right to respect for private and family life when it did not act on her wish to go home. This is fault and Mrs Y stayed in the care home for longer than she needed too.
47. Mrs Y remained in the care home during the Covid19 lockdowns. She was unable to leave as the care home was locked down. But when Mrs X requested Mrs Y’s wishes were listened to at the start of 2021, she was able to move home within four weeks, whilst also in a lockdown. Mrs Z moved in with Mrs Y until her homecare package of support was set up. We cannot say for sure if a family member could have moved in temporarily to support Mrs Y if the Council had not delayed the assessment. However, it is reasonable to assume if the Council had completed the assessment without delay, Mrs Y could have moved home prior to the Covid19 lockdowns. This delay is fault and Mrs Y could not return home despite expressing she wanted to.
48. Receiving a bill for over seventy thousand pounds caused significant distress to Mrs Y and her family. The Council reported it did not receive the information required to complete the financial assessment so applied the full charge. The Council has not evidenced it provided Mrs Y with the information about charging prior to her going into the care home. The Council has removed the charge, but there remains an outstanding invoice. Mrs Y suffered distress when she received this bill.
49. The Council assessed Mrs Y required support to live at home. The Council charges Mrs Y for this support. The weekly amount is less than the contributions to her care when she was in a residential care home. If the Council had not delayed moving Mrs Y out of the care home, she would have been liable for the lower charge. It is right for Mrs Y to make some contribution to the care she required and received, but it is reasonable for her to only pay the non-residential weekly cost.

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Agreed action

50. To remedy the outstanding injustice caused to Mrs X and Mrs Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X and Mrs Y for the delays, not listening to Mrs Y’s wishes and their distress in this case.
• Calculate what Mrs Y would have paid for homecare support from October 2020 to February 2021 in line with her February contributions already calculated. Only charge Mrs Y what she would have paid for homecare for this time, rather than the residential care. Waive the remaining amount from the outstanding invoice.
• Issue guidance to relevant staff on the importance of acting in accordance with individual wishes when that person has capacity to make decisions.
• Issue guidance to relevant staff on the importance of providing information about residential charges and financial assessments before an individual becomes liable for costs.
51. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

52. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X and Mrs Y.

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Investigator's decision on behalf of the Ombudsman