Decision Date: 25 November 2024
Summary
Mrs B, Mrs C’s daughter, raised a complaint following a decision to withdraw CHC funding for her mother’s placement. Neither Mrs C or Mrs B were made aware of the initial meeting where it was concluded Mrs C would no longer be eligible for funding, and the subsequent care assessment failed to elucidate the outcome. After making a complaint, the Council’s response wrongly stated that Mrs C and Mrs B had attended the original meeting.
What happened
Mrs C went into a nursing home in 2020, funded through CHC status. The ICB reviewed her eligibility for CHC funding for this in July 2023. There was a meeting, referred to by the Council as a “DST assessment”, at Mrs C’s nursing home with an ICB representative, a social worker, and representatives of the nursing home. There is no evidence to show Mrs C, or her daughter, Mrs B were made aware of this.
The meeting concluded that Mrs C was no longer eligible for CHC funding, and thus, a care assessment would be carried out. Mrs B said that both herself and Mrs C received communication from the ICB after the meeting, but it did not explain that Mrs C’s CHC funding had been reviewed or that it was to be ended. When the care assessment was arranged by a social worker, the nature or outcome of the meeting still had not been made known to Mrs C and Mrs B. They were under the assumption that whilst it was concerned with the funding of Mrs C’s placement at the nursing home, it was under the framework for NHS funding reviews. When Mrs B asked the social worker about this, the response was that they did not know what Mrs B was talking about.
The outcome of the care assessment was that Mrs C had eligible needs under the Care Act which could be met by the nursing home. A financial assessment was also discussed.
When this was raised during the care assessment, it was sprung on Mrs C and Mrs B, who although they aided her mother with finances at times, did not anticipate this topic and thus did not have information with her. Mrs B claimed the social worker pressured Mrs C to sign a form that provides a basic outline of an individual’s financial situation. Mrs C stated that she owned a property but her savings were below the upper capital threshold.
Mrs B also alleged that the social worker did not seem to want her to read the form, or complete it later, effectively pressuring Mrs C to sign that she had capital above the limit and would be able to finance her own placement. Throughout the meeting, Mrs C and Mrs B raised concerns about the conduct of the social worker and asked questions which were not answered – particularly whether Mrs C would need to finance her own care. Mrs B then spoke with a finance officer who noted Mrs C’s capital was above the upper limit and the notes suggested that a financial assessment would be to no purpose.
A letter to Mrs B from the ICB in October 2023 confirmed the withdrawal of CHC funding, explaining that in particular scenarios council funding might be available and provided the criteria for this. Following this, the Council contacted Mrs C and Mrs B about undertaking a financial assessment. Mrs B returned the assessment, with Mrs C’s signing that she had capital above the upper limit. Mrs C said she would pay for her own care, with the view that the NHS would cover funded nursing care costs and only from the date of the ICB decision. Mrs B stated that she was unaware of the 12-week property disregard, raising concerns about whether the Council should have referred this to her.
Mrs B appealed the ICB’s decision and in April 2024, she attended a local resolution meeting with the ICB. The ICB upheld its initial decision, and informed Mrs B of how she could appeal further. At the time of the meeting, care fees for Mrs B’s nursing home placement remained unpaid from the time at which CHC funding ended.
After the meeting in April, Mrs B raised a complaint with the Council, stating that:
- The Council had incorrectly indicated her and Mrs C’s attendance at the ICB meeting in July 2023 that concluded Mrs C was no longer eligible for CHC funding.
- The Council did not provide an explanation as to why the August 2023 meeting had been arranged with the social worker, and that this arrangement did not align with National Framework guidelines for CHC funding.
- The social worker at the August 2023 meeting wrongfully pressured Mrs B and Mrs C to sign a declaration form.
Mrs B submitted that these faults resulted in the withdrawal of CHC funding by the ICB, which was a source of anxiety for Mrs C.
What was found
The LGSCO found that the ICB was responsible for informing Mrs C and Mrs B of the initial July 2023 meeting, and thus, the Council was not at fault. It was also the responsibility of the ICB, not the Council, to communicate the outcome of the meeting (that Mrs C was no longer eligible for CHC funding).
The LGSCO also found no fault in the Council’s decision to carry out the subsequent assessment in August 2023 with the social worker. However, it was fault that Mrs C and Mrs B remained unsure of the purpose of the meeting after it had been concluded. Considering the social worker was aware of the July 2023 decision, there should have been no confusion at all.
This fault, says the LGSCO, influenced the situation regarding the financial assessment. The social worker was likely to have assumed that given Mrs C owned her own home, she would have had capital above the threshold. Where it is obvious that an individual has capital above the upper threshold, and the person consents, this assessment can be ‘light touch’. However, the fact that Mrs C and Mrs B remained unaware of the reason or purpose of the assessment would have contributed to their misapprehension, and thus, this failure constituted ‘fault’.
Despite the Council’s clarification over the following weeks, the LGSCO still found fault in that the Council did not advise of its discretion to consider the 12-week property disregard.
The confusion was further compounded by the Council’s incorrect information in response to Mrs B’s complaint. The Council stated that Mrs C and Mrs B were in attendance at the July 2023 meeting despite their notes evidencing the opposite. This was obvious fault.
To reflect the injustice caused by the Council’s faults, as Mrs C and Mrs B had been put to avoidable distress and uncertainty, the agreed actions were that the Council would:
- Apologise in writing to Mrs B and make a symbolic payment of £250.
- Provide written communication stating that should her appeal against the CHC funding withdrawal not be upheld, it will reconsider whether as part of a financial assessment, Mrs C may have been entitled to the 12-week property disregard.
- Review its communication process with service users and their relatives when there is a decision to withdraw CHC funding.
- Brief all social work staff impacted on the Council’s expectations regarding transparency.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
We think it’s important that the complaint was upheld because of the fog surrounding the nature and purpose of the meeting at the care home. Neither the woman nor her daughter even knew that she was being re-assessed. This was clearly a social worker with not much grasp of the legal framework and reluctant to be drawn into being the messenger of bad news.
The fact that the relatives were not informed of the review and invited to it would be a slam dunk of an appeal – because it’s an obvious breach of due process. The various levels of internal dispute resolution make it impossible to ensure that an unlawful initial decision remains judicially reviewable; the ICB is bound to have said to Mrs B, via that first level of internal resolution: – “Well, even if she didn’t have due process, there is no doubt that she no longer qualifies NOW and nothing has in fact changed since that meeting” or some such parry.
We do not know why the Ombudsman’s joint team did not get involved as it frequently does; we suspect it was because the ICB’s processes were not yet completed.
The investigator set out limited information from the National Framework and not the part that requires involvement of the relatives in a review that has magically turned into a full reassessment of eligibility. This stems, we think, from failure on the part of the investigator to understand the difference between review of a CHC patient and a reconsideration of eligibility and the fact that in the latter situation, one needs to re-start all the due process that was required the first time round for the DST!
The responsibility is the ICB CHC nurse co-ordinator’s to implement – the Framework says it includes
“supporting the person (and those who may be representing them) to play a full role in the eligibility consideration process, including ensuring that they understand the process, they have access to advocacy or other support where required, and organising the overall process in a manner that maximises their ability to participate”
The Framework also says that a basic principle of the CHC process is that
21.2 As a minimum a good quality multidisciplinary assessment of an individual’s health and social care needs will be:
“person-centred, making sure that the individual and their representative(s) are fully involved, that their views and aspirations are reflected and that their abilities as well as their difficulties are considered.”
PG 24 says this:
24.1 The individual or their representative cannot be members of the MDT. However, they should be fully involved in the process and be given every opportunity to contribute to the MDT discussion.
PG 24.2 includes these words:
….MDTs should be aware that the DST contains a section at the end of the domain tables for the individual and/or the representative to give their views on the completion of the DST that have not already been recorded elsewhere in the document, including whether they agree with the domain levels selected. It also asks for reasons for any disagreement to be recorded. Therefore the MDT meeting should be arranged in a way that enables that individual to give his/her views on the completed domain levels before they leave the meeting.
Under the Charging Regulations which contain the reference to the 12-week disregard, the definition regulation includes the position that “resident” means a person who is provided with accommodation in a care home under the Act.
In our view, therefore, the concept of becoming a permanent resident can only mean a resident who has been taken ON by the council, so we don’t think that there is any doubt at all that her financial management supporter should have been told that the 12 week disregard would be extended to her mother. We think therefore that the Ombudsman got this bit actually wrong in law: ‘Mrs C had no automatic entitlement to this. She had been a permanent resident at the nursing home for some time.’
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Bath and North East Somerset Council (24 002 922) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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