Summary: We have not found fault in Wirral Metropolitan Borough Council’s decision to charge Mr X a contribution toward the cost of his care after he left hospital. There is evidence that professionals from the Council and the NHS were transparent about the possible charges.

The complaint

1. Mr X was an inpatient of Arrowe Park Hospital for around a month in early 2023. Mr X’s wife, Mrs X, said that during this time:

• Hospital staff told her that the NHS would fund support for Mr X at home through Fast Track NHS Continuing Healthcare (CHC) funding; and,
• Adult Social Care (ASC) staff told her that the first six weeks of Mr X’s care in the community would be fully funded and then CHC funding would take over.

2. Mrs X complains that Mr X was not given CHC funding. She said that, until February 2024, she was told that Mr X was not eligible, despite no assessments having been completed.
3. Mrs X said Mr X has been charged over £15,000 toward the cost of his care. Mrs X said they cannot afford this.
4. The organisations involved in these events were:

• Wirral Metropolitan Borough Council (the Council),
• Wirral University Teaching Hospital NHS Foundation Trust (the Hospital Trust),
• Wirral Community Health and Care NHS Foundation Trust (the Community Trust), and
• NHS Cheshire and Merseyside Integrated Care Board (the ICB).

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The Ombudsmen’s role and powers

5. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA). The Local Government and Social Care Ombudsman investigates complaints about adult social care providers. (Local Government Act 1974, sections 34B, and 34C, as amended). The Health Service Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’ in the delivery of health services (Health Service Commissioners Act 1993, section 3(1)).
6. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
7. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
8. If there was no fault in how an organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
9. When investigating complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
10. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

11. I considered Mrs X’s written complaint to the Ombudsmen and spoke to her on the telephone. I wrote to the Council, the Hospital Trust, the Community Trust and the ICB to explain what I intended to investigate and to ask questions and for relevant evidence. I considered all the papers I received in response. I read relevant legislation and guidance.
12. I shared a confidential version of this draft decision with Mrs X and the organisations and invited their comments on it. I considered all the comments I received in response.

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What I found

Relevant legislation and guidance

Hospital discharge

13. At the end of March 2022 the government issued the Hospital Discharge and Community Support Guidance. This said that local areas should adopt discharge processes that best meet the needs of the local population. It said this could include the ‘discharge to assess, home first’ approach which had been used during the pandemic. The guidance also said that funding to support discharge could be pooled across health and social care.
14. This guidance also noted, in section 9, that “Consideration should…be given to people who have palliative care needs, including those who are nearing the end of their life…” It continued, “Systems should have regard to the National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care for those individuals where an appropriate clinician has decided that an individual has a primary health need arising from a rapidly deteriorating condition and the condition may be entering a terminal phase…”

National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care

15. NHS Continuing Healthcare (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’.
16. 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. The threshold for meeting the CHC Checklist is set low. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment.
17. The National Framework also includes guidelines for when people have a rapidly deteriorating condition and where the condition may be entering a terminal phase. In these circumstances CHC funding can be started very quickly without the need for a Checklist or a multidisciplinary assessment.
18. The Fast Track process depends on the judgement of the person’s ‘appropriate clinician. This is either a doctor or a nurse who is responsible for the person’s diagnosis, care or treatment. If the ‘appropriate clinician’ thinks a person meets the Fast Track criteria they should complete a Fast Track Pathway Tool.
19. When an ICB receives such a tool it should action it immediately, unless it has concerns that it has been completely inappropriately.
20. Section 259 notes that “The overall Fast Track process should be carefully and sensitively explained to the individual and (where appropriate) their representative. Careful decision-making is essential in order to avoid the undue distress that might result from changes in NHS Continuing Healthcare eligibility within a very short period of time”.

Adult social care and charging

21. Local authorities have a duty to arrange care and support for those with eligible needs, who do not receive CHC funding.
22. Section 14 of the Care Act 2014 gives local authorities discretion to choose whether or not to charge for services they arrange and provide.
23. Where a local authority decides to charge it must carry out a financial assessment to decide what a person can afford to pay towards their care. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014. Local authorities should also have regard to the Care and Support Statutory Guidance that accompanies the Care Act 2014.

Relevant events

24. The following is intended as a broad overview of key events. It is not intended as a comprehensive history of events during the period.
25. Mr X has a brain tumour. This condition, plus associated treatment, led to a range of debilitating effects on Mr X’s health and wellbeing. Mr X lived at home, supported by his family.
26. In February 2023 Mr X went to the Emergency Department of Arrowe Park Hospital following a seizure. The hospital admitted him and he remained an inpatient for just over a month.
27. Mrs X said during this time:

• A Hospital Trust doctor spoke to the family at length about Mr X’s condition and deterioration over the previous two years. Mrs X said she told the doctor she could not afford to pay for carers. Mrs X said the doctor told her that, because of Mr X’s complex needs and deterioration, they would apply for Fast Track CHC funding.
• A Hospital Trust discharge coordinator told the family that Mr X was eligible for CHC funding.
• A Council social worker completed a social care assessment of Mr X. Mrs X said she told the social worker someone had applied for Fast Track CHC funding for Mr X. Mrs X said the social worker told her that Mr X would receive free support for the first six weeks after he left hospital. She said the social worker told her that, during those six weeks, an application for CHC funding would be processed and that CHC funding would be in place by the end of the six weeks.

28. The Hospital Trust said:

• Staff “initially mentioned as a consideration” an application for Fast Track CHC funding. However, it said that staff did not judge Mr X to be eligible for an application because he was not considered to be coming to the end of his life.
• Mr X’s eligibility for CHC funding had been under consideration before he entered hospital. It said that, during his admission, Community Trust staff told its staff that Mr X did not currently qualify for CHC. It said that the Community Trust staff told it that, because of this, the Council would need to review Mr X’s needs and arrange support for him. The Hospital Trust said its staff communicated this to Mrs X.
• Its staff did not consider Mr X’s eligibility for CHC through the ‘standard’ assessment process during his admission. It said it followed advise that hospital staff should not assess a person’s eligibility for CHC in the hospital setting.

29. The Community Trust said:

• When Mr X left hospital it emailed a social worker. It said it asked them to arrange an assessment of Mr X’s eligibility for CHC funding in the community.

30. The Council said:

• It assessed Mr X’s needs under the Care Act during his inpatient stay.
• A social worker discussed with both Mr and Mrs X how social care charges are applied. It said Mr and Mrs X understood that Mr X would undergo an assessment to determine if he would need to pay a contribution toward the cost of his care in the community.

31. Mr X returned home in the middle of March. Care workers began visiting him three times a day.
32. At the end of March the Council sent a completed CHC Checklist to the ICB. The ICB wrote to Mr X several days later to say it had found that he did not meet the criteria for a full assessment of his eligibility for CHC.
33. The Council wrote to Mr X at the end of July. It set out the contribution Mr X would need to make toward the costs of his care. It explained how it had calculated this contribution. Toward the end of August the Council issued an initial invoice for the cost of Mr X’s care.
34. At the end of October a multidisciplinary team completed a full assessment of Mr X’s eligibility for CHC. It found that he was not eligible. Mrs X appealed this decision in January 2024. The ICB upheld the ‘not eligible’ decision.
35. In the middle of February 2024 the ICB received a Fast Track application for Mr X. It began CHC funding for his care the following day.

Complaints process

36. During the complaints processes the Hospital Trust, Community Trust and the ICB did not identify any failings in their actions.
37. The Council accepted there had been a delay in sending some documents about charging to Mr and Mrs X. However, it said its actions had been appropriate and that the invoices it had issued were valid and remained payable.

Analysis

Discussion about Fast Track CHC funding

38. The contemporaneous records document that:

• In February 2023, on the day Mr X went into hospital, a community health team noted they had agreed to start discussions about Fast Track CHC funding. However, they noted that Mr X had since been admitted to hospital.
• A Council officer noted this communication when Mr X was in hospital. They recorded that Mr X “may still require CHC Fast Track prior to discharge home”.
• Four days into Mr X’s admission a member of the community health team noted they had spoken to a colleague and “discussed request for fast track. Advised that as patient remains in hospital on [the acute medical unit] then it would not be safe to discharge him without a suitable [package of care] and funding in place.”
• Toward the end of February, on Mr X’s 17th day in hospital, a member of the discharge team spoke to Mrs X. They said the team “had not received a referral for a fast track. [Mr X] has been informed he would not be fast track eligible. I have reassured he may be eligible for CHC funding due to having a long term condition. Will also contact [the CHC team]…”
• In early March, on Mr X’s 23rd day in hospital, a member of the discharge team spoke to Mrs X and said they had “liaised with [the CHC team] and they have advised as [Mr X] is not [a] Fast track patient [he] will have to be assessed for [a Council package of care] and once home [the CHC team] will assess for CHC funding…”

39. Overall, these records, from various sources, show that professionals were considering whether Mr X may be eligible for Fast Track CHC funding. There is persuasive evidence that, by late February/early March, professionals had decided that Mr X was not eligible. Further, there is evidence that staff had told Mr and Mrs X that Mr X would not qualify for this funding. I have not found evidence to suggest that professionals from the Hospital Trust or the Council attempted to mislead Mr X or Mrs X into thinking this form of funding would be available to Mr X when he left hospital.

Advice that Mr X would receive CHC funding after he returned home

40. The records show that:

• Toward the end of February staff from the discharge team recorded that they told Mrs X that Mr X “may be eligible for CHC funding due to having a long term condition.” They also noted that they told Mrs X of a plan for a social worker to assess Mr X’s eligibility for a Council package of care. They also said they would complete a CHC Checklist and that the CHC team would follow up in community.
• In early March the Council noted that Mr X was waiting for an assessment and a package of care “after which CHC funding is likely to be sought”.
• Three days later a social worker made notes of their meeting with Mr and Mrs X on the ward. They recorded that they “spoke to them about CHC Funding, and how [Mr X] will have his assessment once he is home.”
• At the end of March 2023 a social worker completed a CHC Checklist and sent it to the CHC team. It did not trigger a full assessment.
• In early April the ICB’s CHC team wrote to Mr X to confirm the outcome of the Checklist and that he did not meet the threshold for a full assessment. It signposted Mrs X to sources of more information and advice about CHC and noted how the decision could be challenged.

41. On balance, the evidence suggests that professionals told Mr X and Mrs X that Mr X’s eligibility for CHC funding would be assessed after he left hospital. I have not found evidence to show that professionals assessed Mr X’s in the hospital, and I would not expect this to have happened. It is usual practice for assessments to take place in the community. Nor have I found evidence to corroborate Mrs X’s account that she was told CHC funding would start six weeks after Mr X returned home. Overall, on balance, there is evidence to show staff acted transparently in stating that Mr X’s eligibility would be assessed in the community.

Advice that first six weeks of Mr X’s care would be fully funded

42. Before Mr X went into hospital:

• In January 2022 the Council assessed Mr X’s needs. It noted at the time that Mr X was “aware that any services commissioned via Adult Social Care are subject to a financial assessment.”
• The Council’s Personal Finance Unit (the PFU) contacted Mr X in August 2022 following a request to complete a financial assessment for proposed support at home. The PFU sent a copy of the Council’s charging policy to Mr X. At the end of the month Mr X contacted the PFU and said he had used an online calculator and decided that the weekly contribution he would need to make was more than he could afford to pay.
• In early January 2023 Mrs X contacted the Council’s duty team to ask for support to care for Mr X. The member of staff noted that they “Explained financial assessment for care and support via ASC, [Mr X] said he is aware as he has previously started to complete the assessment” and had a rough idea what his contribution would be.
• A social worker visited Mr X to assess his needs in the middle of January 2023. They noted that Mr X would “be financially assessed to pay a contribution, [Mr X] said that he would like to know how much this will be before any support is started”.

43. Overall, there is convincing evidence that Mr X and Mrs X knew that care provided by the Council is chargeable. Also, that Mr X’s circumstances meant he would probably need to pay a contribution.
44. In addition to the conversations about CHC funding listed above, after Mr X went into hospital:

• In early March 2023 a social worker met Mr and Mrs X to assess Mr X’s needs. They recorded that “I discussed with both [Mr and Mrs X] how Social Care Charges are applied and [Mrs X] said they don’t really have any savings. [Mr X] understood he would be assessed to see if he was able to contribute towards his costs for the Care Agency coming in to support him. They both agreed they understood and accepted this”.
• On the following day the social worker noted they had agreed to see Mr and Mrs X on the ward again "to go through charging policy for them to sign”.
• In the core assessment completed by the social worker they recorded that the service Mr X was being assessed for was chargeable. The social worker recorded that they had discussed the financial implications of the required support with Mr X.

45. As with the issue of the community CHC assessment, I have not found anything to confirm that staff told Mr X or Mrs X that the first six weeks of Mr X’s care would be fully funded. The records made at the time suggest that the professionals told Mr X and Mrs X that they may need to pay toward the cost of the care from the outset. I did not find evidence that Mr X or Mrs X signed a charging policy, as the social worker had said they would arrange. This should have happened. However, the weight of evidence about the conversations about charging shows that the Council did not try to hide the possible charges Mr X would need to pay.
46. After Mr X returned home:

• In late April 2023 a social worker spoke to Mrs X and asked what she and Mr X wanted “because she had already informed me that she wasn’t happy about the financial charge that [Mr X] maybe assessed to pay, [Mr X] said he was fine with this, I said that we can go through it online next Wednesday when I come out to do a checklist for CHC.”
• In mid-May 2023 a social worker visited Mr and Mrs X. They recorded that they “discussed with [Mr X] and [Mrs X] that they will have been being financially charged for support since [the care provider] started, [Mr X] doesn’t have the concentration to go through the online financial assessment and [Mrs X] doesn’t like filling in forms, so I started…to complete the online financial assessment, until [another person] arrived and I said that I will complete it over the phone tomorrow or Friday.”
• In the middle of June 2023 Mrs X called the PFU and asked for help to complete a financial assessment form.
• The PFU received a signed, completed financial assessment form in early July 2023.
• The Council completed a financial assessment at the end of July 2023 and wrote to Mr X about it. The letter set out how much Mr X would need to pay toward to cost of his care on an ongoing basis and since he left hospital.

47. These records provide further evidence that Mr X and Mrs X understood that Mr X may be liable for charges, pending the result of a financial assessment.
48. In summary, the Council was entitled to charge Mr X for a contribution toward the cost of his care. Further, I have not found evidence to show that Mr X and Mrs X were misled about this. I have not found fault on the part of any of the organisations.

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Decision

49. I have completed this investigation on the basis there was no fault.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman