Decision Date: 11 February 2025
Summary
Cumberland Council delayed in completing an adult social care financial assessment for Mrs Y. Her son, Mr X, her Finance LPA, was then issued with a large and unexpected invoice for backdated care costs. The Council also delayed in advising the family about benefits Mrs Y was eligible to claim and gave inadequate notice of its termination of her placement at the care home.
What happened
In November 2021 Mr X’s mother, Mrs Y was discharged from hospital. She was given an interim placement in a residential care home which was funded by the NHS.
In March 2022 Mrs Y was found not eligible for CHC funding. There is no evidence of discussions regarding long-term plans with the family or Mrs Y herself.
On 5 May 2022 the Council completed a Care Act assessment, support plan and mental capacity assessment. The mental capacity assessment concluded that a best interests decision was needed on where Mrs Y should live.
On 6 May 2022 the social worker referred the case to the finance team requesting a financial assessment for a nursing dementia placement.
On 22 June 2022 Mrs Y’s placement became permanent. She began receiving funded nursing care (FNC).
On 31 January 2023 a brokerage service manager recorded that the care plan had never been forwarded to the brokerage team to create a contract. They also recorded that the Home was advising that they had not been paid since Mrs Y had become a permanent resident in June 2022.
On 14 March a permanent nursing dementia placement was agreed and backdated to 22 June 2022.
On 11 April a finance officer recorded that she left a voicemail message for Mr X about carrying out a financial assessment. Mr X says he did not receive this message.
Meantime, the Council requested a Land Registry search on Mrs Y’s previous address. This indicated that Mrs Y owned capital over the threshold of £23,250. The brokerage team informed the Home that the Council would end the contract on 24 April 2023.
The finance officer wrote to Mr X stating that Mrs Y had been assessed to pay the full cost of her care. They also stated that Mrs Y was eligible to claim Attendance Allowance and that if Mr X wished to undergo a full financial assessment, he should contact the finance team. The officer enclosed a copy of the Council’s booklet which provided information on charging for care and support, together with the current schedule of fees and charges.
On 20 April the Home told the Council that Mr X had been spoken to about future payments but not about the ending of the contract between the council and the home. The social worker telephoned Mr X and left a voicemail explaining Mrs Y was full cost and he would need to contract privately with the home. Mr X says he did not receive this voicemail.
Mr X then received the Council’s letter of 17 April. He made a complaint and said he had received no other correspondence about the costs of Mrs Y’s care.
In October 2023, Mrs Y died.
On 31 May 2024, the Council responded to Mr X’s complaint a year after he had made it. The letter apologised for the delay in response. A copy of an investigation report was enclosed which set out recommendations for the Council, some of which had been completed. The Council apologised for inaccuracies in the letter it sent Mr X on 17 April and for the delay in the completion of the financial assessment. The Council confirmed that the start date of Mrs Y’s care charges would be amended from 22 June to 22 September because of the property disregard period which would have been in place had the financial assessment been completed at the time..
What was found
Delay in providing financial information
At the outset, no written information was given to Mrs Y or her family members about charges or expected fees. No conversations were held with the family about paying for Mrs Y’s care. The Council’s letter of 17 April 2022 was the first financial information given to Mr X. Mr X was thus denied the opportunity to make decisions regarding Mrs Y’s care services. The report did not mention how this could possibly have happened.
The letter was confusing and failed to explain properly why Mrs Y was full cost. This caused Mr X confusion and uncertainty.
In addition, the letter offered no opportunity to provide information for the financial assessment.
As the family had been given no information about whether Mrs X would have to contribute towards the costs of her care, the large invoice Mr X received was unexpected. This caused him avoidable distress.
Because of the lack of information, the large invoice Mr X received was unexpected. This caused further avoidable distress.
Mrs Y’s social worker requested a financial assessment on 6 May 2022. No financial assessment was completed until several months after Mrs Y died.
The Ombudsman did not recommend waiver of the payments for care because of the delay in the financial assessment. However, it did consider it recommended an apology and symbolic payment for the distress caused.
Delay in advising about benefits
The Council only explained Mrs X’s eligibility to claim Attendance Allowance in its letter on 17 April 2022. Thus, Mrs X lost the opportunity to apply for these benefits from the date she was assessed as being full cost. The Ombudsman said its expectation was that family do their own research to find out what benefits, if any, people are entitled to. What the Ombudsman’s’ report failed to mention is that it is not legally possible to backdate the claim for Attendance Allowance.
Poor record-keeping
Mr X was not consulted about where Mrs X should live, despite having Power of Attorney for health and welfare and for property and finances, not even after a Mental Capacity Assessment had determined (AFTER the DoLS had already been done. . There was no documentary evidence of any discussions held with Mr X and no best interests decision was recorded. The lack of adequate records was fault and caused uncertainty. There was no explanation in the report as to how this could happen, either.
Notice to end the placement
The Council’s failure to inform Mr X that it was terminating the contract with the care provider and advising him of next steps was fault and caused him distress and uncertainty.
Failure to discuss the proposed termination of the contract with Mrs Y’s social worker before a decision was made was further fault. Significantly, the report did not mention the human rights obligations to respect Mrs Y’s home and family life.
The Council agreed that, within one month, it would:
· issue a written apology to Mr X;
· pay Mr X £500 in recognition of the distress caused by the failure to provide financial information, the delay in the financial assessment and the failure to give reasonable notice of the termination of the contract with the Home;
· pay Mr X £300 in recognition of the lost opportunity to claim benefits on Mrs Y’s behalf; and
· pay Mr X £150 in recognition of the distress and frustration caused by the delay in responding to his complaint.
The Council agreed that, within three months, it would:
· complete all the recommended actions set out in its complaints report; and
· issue a reminder to relevant staff that they should share the Council’s booklet on charging for adult social care at the start of their involvement with a person for whom the Council is arranging care for the first time.
· The Council should provide evidence it has complied.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
When a person is in need of a placement in a care home and lacks capacity to make a contract, they are, EVEN IF well off, entitled to be placed by the commissioning council under the Care Act, if they have nobody else willing to do it.
So one might have said that unless or until the Council probed and found out that Mr Y would be willing to make the arrangements using his mother’s money through his power of attorney (albeit that that is what would be expected) the Council had no automatic right to terminate the contract with the care home.
The time to discuss his willingness would have been when starting to probe Mr Y for the information – not at the end, because of course neither Mr Y as the son, nor Mrs Y were parties to the council’s contract with the care home and wouldn’t have known of the notice terms.
The Council was required by its contract with the care provider to give the Home with at least 7 days’ notice to terminate the placement and the Ombudsman thought that the son should have been told at the same time as the Home.
Mr X contended that the Council should not have ended the contract with the Home but should have continued with it, paying Mrs Y’s fees to the Home and then charging her full cost. The private contract that he had to enter into was significantly more expensive, but he would have been involved in the sale of the property and he was a holder of a finance power of attorney, so he had little excuse for not stepping up at that point; the council’s function is a discretion at that point, not a duty.
This is, however, the kind of situation which can lead to a person being left in the bed without any extant contract for their care at all – and that is why the Council must take steps to ensure that the next person in line, this time with an obligation to step up to the role afforded by the Power of Attorney, does actually come forward. It should not be the Provider’s problem in this situation.
The period between Mrs Y’s hospital discharge and the point when she was referred for a CHC assessment was much longer than any NHS interim funding would normally have been expected to last, and the report is silent on who was contracting at that time. We suspect that the Council had been forced to take over at some point around 4-6 weeks into Mrs Y’s stay and that she was regarded as temporarily funded, because her placement was not made permanent until June 2022. At that point the Council took over and was funding the care home under the Care Act based on the woman’s incapacity.
A council should normally complete a financial assessment before creating a personal budget and care plan. Where councils have to arrange care before completing the assessment and planning process, the Ombudsman expects councils to have given people a reasonable estimate of likely charges before they have to decide what care services they want the Council to arrange and to get on with the process after that, in a timely manner.
The Ombudsman unusually said that it is common knowledge that most people have to pay towards the cost of their care – we think that this is fair in principle, but in fact that the difference between rehab, stepdown interim and reablement beds is beyond most people. The Ombudsman seems to be headed in the direction that the council must at least get the answer right if people have the sense to ask for more information about paying for care.
The fact that Mrs Y was under a DoLS authorisation by April 2022 was not automatically suggestive that the CHC eligibility position had been wrongly decided; the NHS framework says it is not relevant to eligibility. But because a DoLS turns on incapacity with regard to the regime under which one is being cared for, by April, it would certainly suggest that she certainly had no power to make her own arrangements in the care home, in terms of forming an intention to create a contractual relationship with the home, once the self-funding position was discovered. Mr Y was already the holder of a power of attorney so if he had been consulted on the best interests decision at the temporary or permanent date point, he would have had to have considered funding from them on as Mrs Y’s statutory agent.
Calling the council’s failure to abide by the Mental Capacity Act regarding best interests decision making an example of poor record-keeping, we regard as a bit of an understatement on the part of the investigator…
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Cumberland Council (24 005 287) 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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