Decision Date: 16 May 2024
Summary: Haringey Council’s ASC panel took several months to consider a man’s application for care commissioning, which meant he continued paying the full private cost of his own care for longer than he needed to.
The council was persuaded to make separate remedy payments to Mr B’s estate and to his son and will set out how it intends to improve its service.
What happened
Mr B had moved into a care home, from another area, in the area where his son lived, in 2021, and continued living there until 2024, when he died.
His son had told the Council that Mr B would soon (ie in about 6 months) need the Council to pay for his care. The report suggests that the council assessed and found Mr B eligible at that point and did a CHC checklist as well which it sent off (but not until 2 months after doing it).
Shortly after being contacted, it advised the family that Mr B’s fees were more than their rate so that he would need a top-up or must move. The council’s Brokerage team was asked to assist in finding a cheaper home.
The Council confirmed that Mr B was still liable for his fees in full after doing a financial assessment. The care plan that it then drew up, confirmed, subject to panel approval, that his budget would be the full cost of his care home.
It said it could make no decisions until capital depletion. In early June, the Council’s social care panel refused to consider Mr B’s case because (it said) there had been no CHC decision from the NHS. Mr B’s social worker contacted the NHS to chase this.
In early August, Mr B’s care home told the Council that it was able to continue to meet Mr B’s needs, but only if the Council met the full costs of the care, or Mr B’s family paid a top-up. [This would have been because Mr B knew he needed to terminate his own contractual obligations for the care, we would think.]
The NHS declined to find Mr B eligible for CHC in July. The Council put Mr B to the election of securing a family paid top-up or whether he preferred to move to a cheaper home.
His son, Mr C, clearly knew his rights: he replied, saying that the Council should have done another needs assessment of Mr B, given his rapid decline since the last assessment in March. Since his fall, Mr B had become wheelchair-bound and incontinent. He could no longer eat or drink independently. The point was that a change of placement would harm Mr B’s wellbeing.
There was still no panel decision made about the budget. The Council ignored this correspondence until it hit upon the notion that Mr B’s history in another area meant that there was an ordinary residence issue. The other Council obviously declined responsibility.
The private fee payment to the care home stopped. A top-up for staying on had been offered, according to the care home, which was now pressing the council for the bottom slice.
The panel agreed to pay £950 as the budget, in late September, having secured the top-up offer from the family, as far as it was concerned. It set up the payments and backdated them to 1 September, although mid-August was when the council had been on notice that the man’s assets would deplete.
The Council never got around to reviewing the care plan before Mr B died in late December.
The funding panel decision had taken 7 months from first hearing that the man would need one to be made.
During that time, Mr B’s condition deteriorated and that meant that the original needs assessment was out of date. The top-up that the family were even then left to pay was larger than it should have been, had he been promptly care planned for.
The Council’s response to the complaint prior to the ombudsman said that there was no need for a review, retrospectively, but there was no attention paid to the request at the time, no information from the care home requested, and thus no justification for thinking that no review was needed.
Even when the panel did make a decision, it did not explore the question of the extent of the need.
Even though the Council had offered to backdate what it should have paid, it left that backdating arbitrarily short by 2 weeks, which meant another £1650 had been paid out unnecessarily. Dealing with the Council’s incompetence over such a long period caused the son a lot of distress, too.
What was found
Not only does the statutory guidance clearly explain how Mr B’s ordinary residency should have been decided, meaning it was a complete waste of time in the circumstances to try to get another council to pay, but the Council had been aware for fully seven months that he had moved from a neighbouring area. It was written in his case notes.
2 months of the delay was down to the Council not sending off the CHC checklist.
The delay was unjustified and was fault.
Between mid-August (when the threshold was passed) and the start of September, Mr B spent around £1,650 on his care (which would have roughly been the cost of eight days in his care home).
Mr B’s proposed personal budget – which was for the full cost of his care home – was written up in his care plan for five months, when Council did not ever really intend to pay it. That may have influenced his willingness to pay a top-up before the matter got to the panel (that could mean in either way – as in it not being thought to be necessary, or as in the family being willing because it was not going to be large if as much as had been indicated was available in payment).
The evidence of a change of circumstances, once his needs increased, was clearly sufficient to trigger the duty to review.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
We think that there is probably more wrong with the process in this scenario than was even highlighted by the Ombudsman.
It MIGHT be that the family and care home were obliged to pay the top-up and contribution to charges directly, which is only acceptable if there is agreement all around including by the care home.
We don’t understand why the Investigator did not explicitly agree with Mr C that the one thing a Council cannot do with a capital depletion client or their family is to say ‘It’s a top-up or a move’ – precisely because a person may no longer be ABLE, defensibly therapeutically from a professionally competent assessor’s perspective, to be regarded as able to move – in which case a Council must pay full cost.
That is very much part of existing LGSCO ‘ombudsprudence’ in its reports into councils’ inappropriately demanded top-ups.
This is another great instance of the Ombudsman’s embracing of the law of restitution, which arises when a person pays out money, unnecessarily, because of a public body’s breach of statutory duty. The sum due back for the 8 days of private care after his capital depleted, would have to be reduced by whatever social care charges Mr B was also due to pay for that period, however.
We think that the Council thought it was acceptable to ignore the request for the review because it would have thought that the care home would carry on meeting the need for the gross fee agreed and that there was therefore nothing more for it to ‘do’. But the whole point of the review is to consider revision of the actual contents of the plan and more 1:1 hours might have been allocated, given the deterioration, or a higher banded fee under the contract might have become due. Providers can trigger Care Act reviews on behalf of the clients.
The referencing of ordinary residence issues in circumstances where the Guidance and law are totally clear, and of the possibility of CHC eligibility, as excuses for delay was seemingly obfuscation – or else otherwise simple ignorance, because they were both ‘red herrings’ for the purpose of taking the contract on.
Ordinary residence presumptively shifts when a person moves themselves from one area to a care home in another, through their own private funding arrangements, even if they have a house left, back in the area they came from.
A pending decision from the NHS about CHC entitlement does not stop the clock on the council’s duty to meet needs.
Once it’s made, a CHC decision is a valid decision, unless successfully challenged, and that is the basis on which care home fees are still legally due, via the charging system run by councils if they’ve taken over funding, in the meantime, despite any familial disagreement as to a CHC DST outcome.
So even running these reasons for delay up the flagpole was strong evidence of a need for legal framework training, poor practice – and simple breach of the Care Act, we have to say.
If you are affected by the issues in this report, please consider asking us a free One-off Question, at a level of principle, here.
The full Local Government Ombudsman report on the actions of Haringey Council can be found here: London Borough of Haringey (23 014 678)