The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council charging the late Mrs C for her care. This is because there is not enough evidence of fault with the actions taken by the Council to warrant an Ombudsman investigation.
The complaint
Mrs B complained her late mother, Mrs C should not have been charged for her care and disputes her care needs were mainly social. Mrs B says for the last 15 months of Mrs C’s life she did not live in a suitable care home and was not provided with adequate care. Mrs B says the Council should have pursued the NHS for Mrs C’s funding as it arranged her care and has not answered all the salient points she raised. Mrs B says the Council should cancel the invoice for Mrs C’s care amounting to £15,435.60.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs B raised several concerns about Mrs B’s care following her death in August 2021. We will not investigate Mrs B’s complaint about the care Mrs C received as we could not now provide Mrs C with a remedy for any injustice caused by fault which an investigation might uncover. While Mrs B has not had all the answers she wants in relation to the care Mrs C received it is not the role of the Ombudsman to provide these.
Mrs B says Mrs C’s needs were not purely social and she had a number of disabilities which should have pursued with the NHS by the Council for Continuing Health Care (CHC) funding.
It is not an administrative function of the Council to decide whether a person is eligible for CHC funding, nor can the Council decide not to provide CHC funding. In the absence of evidence from the NHS confirming Mrs C was eligible for CHC funding there is no fault with the Council for charging her for care it provided during this period.
Continuing Healthcare (CHC) is an NHS funding stream for service users who are considered to have a ‘primary health need’. If a service user is assessed as having a primary health need, the NHS will pay for their care (including any social care provision and, sometimes, accommodation) in its entirety. Even if somebody is found not to have a primary health need, the NHS may still contribute towards the cost of that person’s nursing care. This is known as NHS-Funded Nursing Care (FNC). Although initially Mrs C’s care was funded by the CCG, it decided Mrs C did not meet the criteria for full CHC funding from 31 March 2021 but contributed towards the cost of her nursing care through FNC.
It is the CCG’s decision whether to award CHC funding, so Mrs B can apply for a retrospective assessment. Mrs B as the applicant can tell the CCG why she disputes the Council’s view and say what nursing care Mrs C received. But it is up to CCG to get all information it needs to decide an application. Information about the NHS CHC funding can be found on the website below.
https://www.gov.uk/government/publications/national-framework-for-nhs-continuing-healthcare-and-nhs-funded-nursing-care The Council says it explained about paying for care and provided Mrs B with a booklet about funding care placements on 3 June 2021. It says Mrs B made it clear she would not pay for Mrs C’s care. Mrs C’s Care Provider gave her notice to quit as it had not received payment, however, the Council agreed to pay the Care Provider and advised Mrs B it will recoup the monies it paid.
It is the responsibility of the executor to collect the assets, pay any debts and use the resulting balance to distribute to any beneficiaries. If Mrs B as Mrs C’s executor disputes the existence of the debt she can refuse to pay and defend any court proceedings against her.
Final decision
We will not investigate Mrs B’s complaint because there is not enough evidence of fault with the actions taken by the Council.
Investigator's decision on behalf of the Ombudsman