The Ombudsman's final decision
Summary: Mrs X says the Council was wrong to charge her for a stay in a care home and delayed telling her about the cost. Mrs X’s stay in the care home did not fall in an exception category. However, the Council failed to properly consider the care and support statutory guidance about temporary stays in care homes and failed to keep detailed records about the advice provided about the cost. An apology, a new financial assessment and reminder to officers is satisfactory remedy.
The complaint
The complainant, whom I shall refer to as Mrs X, complained the Council: wrongly charged her for a stay in a care home when the placement should have been free as it was arranged by the NHS for an assessment period; failed to tell her how much the placement would cost until it sent her an invoice.
Mrs X says as a result her representative, whom I shall refer to as Mrs Y, suffered stress and she is left with the bill she cannot afford to pay.
The Ombudsman’s role and powers
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) 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) Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
How I considered this complaint
As part of the investigation, I have: considered the complaint and Mrs Y's comments; made enquiries of the Council and considered the comments and documents the Council provided.
Mrs X, Mrs Y and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What should have happened The LGSCO's Principles of Good Administrative Practice says we expect councils to act fairly and proportionately and to be open and accountable. This includes: making timely decisions and explaining any delays; explaining clearly the rationale for decisions and recording them; stating the criteria for decision-making and giving reasons; and keeping proper and appropriate records.
The Care and Support Statutory Guidance (the statutory guidance) is statutory guidance which councils should normally follow. It says councils can charge people for care they provide and if there is a charge, this should follow national regulations on charging.
The statutory guidance says where a local authority has decided to charge, it must carry out a financial assessment of what the person can afford to pay and, once complete, it must give a written record of that assessment to the person. It should explain how the assessment has been carried out, what the charge will be and how often it will be made, and if there is any fluctuation in charges, the reason.
Paragraph 8.34 of the statutory guidance says where a person is a short-term or temporary resident there is a degree of discretion or modified charging rules to take account of this.
A short-term resident is someone provided with accommodation in a care home for a period not exceeding 8 weeks. Where a person is a short-term resident a local authority may choose to assess and charge them based on the rules for care or support arranged other than in a care home.
A temporary resident is someone whose stay in a care home is unlikely to exceed 52 weeks or, in exceptional circumstances, is unlikely to substantially exceed 52 weeks. Because a temporary resident is expected to return home their main or only home is usually disregarded in the assessment of whether and what they can afford to pay. In addition, for example, certain housing-related costs are also disregarded in the financial assessment.
The information the Council provided Mrs X with about paying for care in a residential home, nursing home or residential college says one of the exceptions for people paying the costs of their care in a care home from their own income or capital is where: people are in care homes that are providing nursing care paid for in full by the NHS or whose placement has been arranged by the NHS.
What happened Mrs X was living in her own home and receiving a care package at home. Mrs X contributed around £176 per week towards that care package. Mrs X then went into hospital.
Mrs Y contacted the Council to raise concerns about Mrs X’s safety if she was discharged home and asked whether she could have live in carers. Mrs Y told the Council the existing carers could not provide a package both in the morning and afternoon. In response the Council told Mrs Y it would have to look for a different provider for a live-in carer and the Council would complete the paperwork when Mrs X was ready for discharge.
The Council social worker contacted Mrs Y again the following week to find out what was happening. Mrs Y told the Council the occupational therapist was considering discharging Mrs X to a care home for 4 weeks. The Council gave Mrs Y basic financial information about the process including that the placement could be charged from the date of discharge dependent on the outcome of the financial assessment. The Council provided Mrs Y with a contact number for the financial assessment team and a residential financial booklet.
Before Mrs X was discharged a mental capacity assessment took place which concluded she did not have capacity to decide where she should be discharged to. A best interest decision took place at which family members put forward their views. The decision was to discharge Mrs X to a care home initially. That was completed as a discharge to assess.
Mrs X was discharged to a care home on 19 September 2023. The Council wrote to Mrs X on 3 October to tell her she would have to pay £458.47 per week until 22 September when she would have to pay £390.37 per week. The letter told Mrs X the assessment was provisional and would be reviewed if her stay in the care home was made permanent. Mrs X has since returned home with a 24-hour package of care.
Analysis Mrs Y says the Council should not charge Mrs X for her stay in a care home. Mrs Y says this is because the placement is free as the NHS arranged it. Mrs Y says the documentation the Council sent to her confirms this is the case.
Having considered the documentary evidence I am satisfied the Council told Mrs Y twice the residential placement planned for Mrs X was chargeable from the first day. It is also clear from the documentary evidence Mrs Y challenged the Council’s explanation and explained she understood the placement would be free as it was a four-week residential placement which the NHS would fund. I am satisfied the Council told Mrs Y her understanding was incorrect and the placement would be chargeable from the first day. I therefore could not say the Council failed to properly advise Mrs X.
In reaching that view I recognise Mrs X has referred to the leaflet the Council provided. That leaflet refers to exceptions where the person moving into a care home does not have to pay. As Mrs Y has noted, this refers to those where the NHS arranged the placement. However, I am satisfied the wording, which I refer to in paragraph 14, makes clear it is for those placed in care homes which provide nursing care rather than simply for anybody discharged into a care home from hospital. As Mrs X did not receive nursing care I am satisfied the Council was right to say Mrs X did not fall into one of the exception categories. As there is no fault in the information the Council provided Mrs Y with I have no grounds to criticise it.
However, I have some concerns about how the Council calculated how much Mrs X had to pay towards her stay in the care home. I set out in paragraphs 11-13 what the statutory guidance says about charging a person placed in a care home on a short term or temporary basis. The guidance makes clear the Council has discretion in those cases and can consider whether to charge under the rules for care and support other than in a care home. The statutory guidance also makes clear as a temporary resident is expected to retain their home some costs, such as housing -related costs, are usually disregarded.
I have seen no evidence the Council considered that when deciding how much Mrs X should pay towards the cost of her stay in the care home. Failure to consider those points is fault given the discharge into the care home took place only for an assessment and was not a permanent stay. I therefore recommended the Council reconsider how much, if anything, Mrs X should pay towards the charge for the period she was in the care home, taking into account what the statutory guidance says. I also recommended the Council apologise to Mrs Y for not doing that earlier. The Council should send a reminder to staff carrying out financial assessments for those placed in care homes temporarily about what the statutory guidance says in relation to charging. The Council has agreed to my recommendations.
Mrs X is concerned the Council did not tell her how much the placement would cost until two weeks after she began her stay. The statutory guidance does not specify a timescale within which a financial assessment should take place. However, we would expect the Council to carry out financial assessments promptly so service users can make informed decisions.
The Council’s documentation suggests a conversation took place about charging before Mrs X moved into the home. However, it is not clear what information the Council gave about the likely charge. We would normally expect a council to provide that information in writing. We would also expect the Council to provide detailed records of any informal conversations to show the specific information it provided about likely charges. Failure to do that is fault. As remedy for that I recommended the Council remind officers dealing with adult social care of the need to keep a detailed written record of advice given verbally about the financial implications of a decision. The Council has agreed to my recommendation.
Agreed action
Within one month of my decision the Council should: apologise to Mrs Y for the distress and upset she experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet; carry out a financial assessment to take into account the statutory guidance on assessments for those placed in care homes temporarily and then confirm the outcome of that assessment to Mrs X and Mrs Y; send a reminder to officers dealing with adult social care about what the statutory guidance says about financial assessments for those placed in care homes temporarily and to remind them of the need to keep detailed records of any verbal advice given about the financial implications of decisions.
Final decision
I have completed my investigation and found fault by the Council in part of the complaint which caused Mrs X and Mrs Y an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.
Investigator's decision on behalf of the Ombudsman