Decision Date: 17 June 2024
Summary
A hospital discharge of an elderly man went wrong with regard to the charges levied, due to insufficient information.
Mr X received free NHS care at home for 2 days when he left hospital but found later that he was being charged for care without agreement or any financial assessment. The Council pursued charges arising before the man’s daughter realised that she needed to cancel service.
Mr X was hospitalised in June 2023 and was provided with two days of care free of charge to help with his discharge.
After one day at home, the Council called Ms D his daughter and told her Mr X would need a package of care. There was some kind of a conversation about charges because Ms D was noted to have confirmed Mr X would not be a full cost payer.
Two days after Mr X was discharged, the care provision began, which Ms D says neither she nor her father realised would be charged for.
The Council provided information on charging for care about a week later, with a financial assessment form to be completed.
A week after that, Ms D confirmed they would like to cancel the package of care as it was not working for her father.
In November 2023, the Council wrote to Ms D to confirm her father’s weekly contribution had been assessed at £119.35 weekly, and that this was on the basis of a light touch financial assessment as she had not provided all of the information the Council had requested.
There was no evidence that Council staff explained Mr X would have two days of free care followed by care which would be charged for. Nor any that he may have to contribute and what that contribution might be. The man and his daughter would have not known when the free care would end and when charges would begin.
What was found
The investigator explained that Ms D had been clear that had she been asked whether they wished to enter a paid-for care arrangement, they would have immediately declined. They were not ever given this option.
The Ombudsman said it is reasonable to expect the information provided early on to include:
- that most people have to contribute towards their care to some extent;
- the upper and lower capital limits;
- when a person might be a self-funder
- typically, most of a person’s income goes towards their care;
- how the council calculates care costs when a person owns their home; and
- the typical cost of different care packages in the area such as residential care, nursing care, and the hourly charge for care at home during the week and on the weekend.
The LGSCO expects the information to be given in writing. The investigator commented on the inadequacy of informal conversations about paying for care with a person or their family members, saying that Councils should be able to provide detailed records of those conversations, setting out what issues were covered.
The LGSCO said that Councils should be prepared to provide additional information or detail where a person’s requirements have changed during their care journey, and they are still waiting for a financial assessment – particularly where someone is moving from care exempt from charging (for example reablement) to a chargeable service.
The two weeks of charges were waived by agreement, after this finding of fault.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
There is no detail as to what ‘pathway’ this man was regarded as being on, in terms of Discharge to Assess Guidance or why 2 days was thought to be an appropriate limit to his need for reablement or step-down care from either the NHS or the Council.
We find it concerning that the investigator does not address the question of responsibility for the care that was provided if there was no distinction between days 1 and 2, and what came later.
Why information leaflets have gone out of fashion about this, to ensure that the information is provided minimally accurately, is beyond us. Not everyone has a computer, a smartphone or a gadget with them at all times, especially in hospital. Very often, this information will come from nurses on the ward, who could really do with a leaflet to avoid muddying the waters, it is suggested.
The Council agreed here to consider whether its current processes included providing meaningful costs information at the outset, and before costs are incurred.
Why charging information matters
There is a right to the service if it is needed, even in the absence of agreement to PAY, but a person can refuse to receive any service being offered if they do not lack mental capacity, in which case the duty to meet need is discharged. The financial implications of accepting care are a relevant consideration for many, even though the deal is not a contract in the normal sense.
The law on charging
Councils are forbidden by the Care Act and regulations to charge for certain types of care and support which includes intermediate care, including reablement, which must be provided free of charge for up to 6 weeks.
Neither should have a strict time limit but should reflect the needs of the person. Local authorities therefore may wish to apply their discretion to offer this free of charge for longer than 6 weeks where there are clear preventative benefits, such as when a person has recently become visually impaired.
The need for a financial assessment before the charge becomes enforceable
Wherever a Council wants to charge for care, it must carry out a financial assessment of what the person can afford to pay except where a deemed or light touch assessment is permissible.
Once complete, it must give a written record of that assessment to the person. The local authority should ensure that this is provided in a manner that the person can easily understand, in line with its duties on providing information and advice.
The Charging Regulations from 2014 provide that there is a deemed financial assessment as the basis of the right to recover the charges levied, in particular situations. The Guidance does not exactly follow the regulations, and the LGSCO has adopted the Guidance in this report.
We’ve gone to the Regulations themselves for this comment:
A Council can consider relying on a deemed (ie non-existent) financial assessment (including what is called a light touch assessment) where either
- With the consent of the adult (there is no reference to best interests coming into it, or the consent of any other individual if the person lacks capacity to consent).
And
- The Council is satisfied on the evidence available to it that the person’s financial resources do not exceed the threshold – the guidance suggests that it’s obviously the case where an individual is in receipt of benefits which demonstrate that they would not be able to contribute towards their care and support costs.
OR
- The Council is satisfied on the evidence available to it that the person’s financial resources DO exceed the threshold
Another instance is this:
- where a person has refused to undergo a full financial assessment for personal reasons but still wants the Council to commission services
or
- where a person has refused to co-operate with the assessment, such that the Council has been unable to carry out a full financial assessment
We think that this last instance can only give rise to a deemed assessment where someone has capacity to withhold co-operation, because of the reference to refusing, rather than the council’s ultimate dissatisfaction with however far they were able to get.
The difference between the Guidance and the law
The Guidance mentions a further justification for not doing a financial assessment where the local authority charges a small or nominal amount for a particular service which a person is clearly able to meet and would clearly have the relevant minimum income left, such that carrying out a financial assessment would be disproportionate.
There is no reference to that situation in either the Care Act or the Regulations, it should be noted.
The Guidance in this context says this:
8.25 Where the local authority is going to meet the person’s needs, and proposes to undertake a light-touch financial assessment, it should take steps to assure itself that the person concerned is willing, and will continue to be willing, to pay all charges due. It must also remember that it is responsible for ensuring that people are not charged more than it is reasonable for them to pay. Where a person does not agree to the charges that they have been assessed as being able to afford to pay under this route, a full financial assessment may be needed.
8.26 When deciding whether or not to undertake a light-touch financial assessment, a local authority should consider both the level of the charge it proposes to make, as well as the evidence or other certification the person is able to provide. They must also inform the person when a light-touch assessment has taken place and make clear that the person has the right to request a full financial assessment should they so wish, as well as making sure that they have access to sufficient information and advice, including the option of independent financial information and advice.
This must be said in the Guidance with regard to it having strayed somewhat from the legislation and regulations, because if the person disagrees, then they have a right to a standard financial assessment because they have not consented, as per the formal regulations above.
The alternative, if they do not get one, then, is that the charge becomes irrecoverable via civil proceedings, because no assessment has been done and the deeming rules do not apply.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s London Borough of Hillingdon (23 014 816) report.
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