Date of decision: 12 February 2025
Summary
Liverpool City Council and Gainsborough House care home were criticised for providing inaccurate information about when NHS Continuing Healthcare (CHC) funding would end for a resident lacking in capacity. The resulting confusion caused significant stress and inconvenience for the resident’s family, though no financial loss or injustice was ultimately thought to have arisen.
What happened
Ms Y, who lacked capacity to manage her finances, lived in Gainsborough House care home from 2019 to December 2024. Her sister, Mrs X, acted as her court-appointed Deputy.
Ms Y’s care had been funded through NHS CHC for some time. (CHC funding is a package of ongoing care that is arranged and fully funded by the NHS where a person has been assessed as having a ‘primary health need’.)
Following a review in late 2021, the NHS Cheshire and Merseyside Integrated Care Board (ICB) determined Mrs Y was no longer eligible for CHC, ending the funding on 3 February 2022 and switching her to Funded Nursing Care. (FNC is a contribution towards the full cost of a nursing home’s fees, on account of the registered nurse input assumed to be required once an ICB has decided one needs to be in a nursing home).
The ICB notified the care home by letter dated 7th January, and asked it to inform Ms Y, but the home claimed no record of receipt and nobody informed Mrs X.
A Liverpool City Council social worker then mistakenly told both Mrs X the Deputy, and her son, Mr X, who was merely supporting his mother, AND the care home that CHC funding would end on 3 March 2022, not on 3 February.
The facts were there to justify finding that on 27 January 2022, the Council’s social worker replied to an email from Mr X, whose role was merely to support his mother as Deputy, now correctly stating that Ms Y’s CHC funding would end on 3 February 2022.
The care home relied on the incorrect date to issue a new contract, which Mrs X signed as Deputy, stating Ms Y would need to become self-funding from March 2022.
On 24 February 2022, the ICB sent a copy of its letter dated 7 January 2022 to Mrs X, saying there had been a short delay whilst it checked that she had legal authority to act for Ms Y.
When the ICB refused to pay for February’s care, the care home billed Mrs X, leading to a dispute over a debt of over £5,000. The bill for the relevant month of care had been paid in full, but the Deputy had withheld payment for a later month, pending the complaint decision.
The family found the situation extremely stressful and sought to have the debt written off, arguing the contract supported their position. Ms Y had since moved from the Care Home to whom the debt was asserted to be owed.
What was found
The Ombudsman found that the ICB had correctly notified both the care home and Mrs X of the end date for CHC funding and was not at fault.
However, Liverpool City Council’s social worker gave the wrong end date to both the family and the care home, and the care home failed to act on the correct information sent by the ICB, instead relying on the Council’s error.
This caused confusion and inconvenience for Mrs X. Consequently, the Ombudsman found fault with the Council and the care home’s communication surrounding the date Ms Y’s CHC funding would end.
Despite these failings, the Ombudsman concluded that Ms Y was always responsible for her care fees from 3 February 2022, so there was no financial loss—just confusion and distress. The Ombudsman did not recommend the debt be written off, as it was properly owed.
The Council and care home were ordered to apologise for the confusion. No specific financial compensation was recommended.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Care Act 2014 and associated guidance require councils to ensure clear, accurate, and timely communication about funding decisions, especially when a person lacks capacity and a deputy or attorney is involved. But in this situation it seems as if there was never any doubt that Ms Y would be self-funding if CHC ended: there is no mention of a Care Act assessment or the Council’s involvement in the actual review and reconsideration of eligibility for CHC.
This would suggest that the Council’s substantive Care Act duties – including the wellbeing duty under section 1 – would not have been engaged. The social worker’s role appears to have been purely administrative, acting as a conduit for information about NHS CHC funding decisions rather than providing care and support services.
The fault lay in basic administrative accuracy rather than any breach of care and support duties.
When a person lacks capacity, deputies or attorneys must be kept fully in the loop, as they are legally responsible for acting in the person’s best interests and as the person’s statutory agents for discharge of debts.
However, in this case the ICB was clearly at some fault, to our minds.
Firstly, there is no explanation of how the cessation of eligibility for CHC could have come about without involvement and knowledge of the Deputy, who was the CHC patient’s sister. The Investigator makes no comment or query regarding that aspect of the story.
Secondly, there is no mention of the requirement in the National Framework for CHC that the ICB notifies the patient directly of the decision to withdraw, precisely because of the need for funding arrangements to be smoothly transitioned.
If the person is known to lack capacity (inevitable after a proper review of their status and eligibility, because of the focus on their current condition including their cognition) it must be self-evident that sending them a letter via the care home will do no good, nor be effective to meet due process requirements.
The letter addressed to the client herself dated 7th January was not sent on to Mrs X until long after the funding had finished, on 24 February. This was a joint health and social care ombudsman’s investigation, so we cannot understand why no mention was made of this obvious failing.
Here is what the Framework says:
210. It is a core principle that neither an ICB nor a local authority should unilaterally withdraw from an existing funding arrangement without a joint reassessment of the individual, and without first consulting one another and the individual about the proposed change of arrangement. Therefore, if there is a change in eligibility, it is essential that alternative funding arrangements are agreed and put into effect before any withdrawal of existing funding, in order to ensure continuity of care. Any proposed change should be put in writing to the individual by the organisation that is proposing to make such a change. If agreement between the local authority and the NHS cannot be reached on the proposed change, the local disputes procedure should be invoked, and current funding and care management responsibilities should remain in place until the dispute has been resolved. There is a separate disputes procedure for when the individual disagrees with the decision (refer to paragraphs 212-227).
We can see that this was an unsatisfactory investigation because Mr X was also involved in the communications, and was also told about the correct date for funding by the Council, a week before the 3 February, but was not formally authorised to act as Deputy.
We think that the ICB probably realised by 24th January that it had not done enough given Ms Y’s incapacity, to inform her effectually under the above Guidance and that that was why recorded delivery was used and the excuse about checking legal authority was held by Mrs X, was given. The Investigator simply failed to deal with that difficulty in the facts.
We are not told how it could be that the evidence of an email having been sent to the home BY the IBC did not correlate to the records of the care home, or how deep that investigation went.
The home had, however, provided the care in good faith and whilst it was definitely not Ms Y’s fault that there had been confusion as to the start date of her self-funding responsibility, she was, in legal terms, properly responsible for the cost of the care.
It may be of interest to readers to know that however wealthy she might have been, the Council would still have had to have taken the responsibility for the care, over, if she had not had a Deputy to act as her agent. The provisions of the Care Act make it clear that having someone else to do it for you, discharges the Council from the duty otherwise to meet the needs. The section itself is vague as to the form of the authority that they must have if authorised under the Mental Capacity Act – we don’t think it can ever be done under mere best interests because arranging for care invariably involves a contract. We think it is meant to include people who are prepared to act as principal in their own name, and not merely as a person’s statutory agent.
See s18(4):
(4) Condition 3 [preconditions to the duty to meet need becoming crystallised] is met if—
(a) the adult lacks capacity to arrange for the provision of care and support, but
(b) there is no person authorised to do so under the Mental Capacity Act 2005 [this excludes ordinary best interests decision, because that doctrine does not extend to effecting contracts] or otherwise in a position to do so on the adult’s behalf.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Liverpool City Council (24 019 378) report.
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