Decision Date: 17th March 2021
Mr B qualified for NHS Continuing Healthcare (CHC) funding due to his complex care needs relating to his disability. CHC funding commenced in 2019 and the Council sent an email to Ms K, Mr B’s grandmother, agreeing to honour a previously agreed annual holiday payment, despite his care now being funded by the NHS.
In 2020, when Ms K asked for the holiday payment, she received no response. She also requested this payment again in 2022 and for it to be backdated for the last two years.
The Council responded advising that the NHS would be now responsible for making these payments, however the NHS said they were not responsible for making holiday payments as they did not meet Mr B’s primary health care needs.
Ms K complained to the Ombudsman that the Council failed to pay the discretionary holiday payments as agreed and failed to respond to her in good time. She also complained that she spent time chasing the Council for these payments despite having a written agreement from the Council stating they would continue to pay the holiday payments. This led to Ms K having to find the funds for her grandson to visit his extended family.
What was found
The Ombudsman found the Council at fault for not responding to Ms K’s request in 2020, not taking into account that it had agreed to make the holiday payments and for not being clear that the NHS would not fund the holiday payments.
It was however made clear that the holiday payments were discretionary and the Council had no legal responsibility to make them. So as such the Ombudsman could not insist that the Council follow through on that promise.
The Council in its response apologised to Ms K and Mr B, agreeing to make the holiday payments for the missed years, 2020, 2021 and 2022.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public.
The Ombudsman found fault in the way Croydon communicated with Ms K but could not find fault with Croydon not making the holiday payments as this was a decision made at the Council’s discretion. Up to 100% of a person’s care costs can qualify for CHC, which means that the NHS pays for them in part or in full. It appears from the report that the NHS became responsible for 100% of Mr B’s care costs, therefore no duty was owed to Mr B by Croydon under the Care Act in this regard.
It is odd that Croydon made the decision to continue making holiday payments, even though there was no legal obligation for them to do so, and this understandably created an expectation in Ms K that Mr B would then receive them. This situation was exacerbated by the Council’s failure to communicate with Ms K effectively (they may, perhaps, have been able to more easily rectify their mistake at an earlier stage, had they done so). It was perhaps inevitable then, that they ended up honouring the payments for 2020, 2021 and 2022.
We think it is a matter of some concern that no comment has been made by the LGSCO that CHC may well need to extend to a holiday payment in the light of the Suffolk case on the circumstances in which it might be part of meeting an assessed need. We think that what public law deems to be a principled approach for the Care Act could well be regarded as a minimum benchmark for CHC care planning as well; and both functions are challengeable by way of judicial review.
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The full Local Government Ombudsman report on the actions of London Borough of Croydon Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/22-009-678