Date of decision: 21 March 2025
Summary
A family member complained about Suffolk County Council’s handling of care planning, financial assessment, and communication with a family member regarding an older woman’s move to residential care after a stroke. He was the estranged son and was excluded from care planning and financial matters, and he raised safeguarding concerns and NHS Continuing Healthcare (CHC) eligibility.
What happened
A woman, Ms E, suffered a stroke in January 2023 and was admitted to hospital, resulting in significant communication difficulties (aphasia). The Council arranged for her to move to a care home in February 2023 for assessment, with initial funding provided for up to four weeks. The Council engaged a speech and language therapist to assist with communication and carried out a mental capacity assessment, concluding Ms E lacked capacity to decide where to live.
Ms E however made it clear she did not want her estranged son, Mr D, involved in her care or to receive information about her. They had been estranged for over 30 years. Mr D said he did not know anything about her financial affairs.
The Council appointed independent advocacy for Ms E.
Mr D raised concerns about another family member’s involvement and possible financial abuse, and queried CHC funding, but was advised to make a safeguarding referral or contact the police.
The Council applied for financial deputyship in October 2023, a full 9 months after the stroke that had hospitalised the woman, but Ms E died before this was resolved.
After her death, Mr D, as executor or administrator, received an invoice to the estate, for care charges, as Ms E’s assets had still exceeded the threshold for financial support.
What was found
The Ombudsman found no fault in the Council’s decision not to involve Mr D in care planning or financial matters, as Ms E had capacity to express her wishes and consistently indicated she did not want his involvement.
The Council’s care planning and best interests decisions were made appropriately, with Ms E’s involvement maximised through specialist support and advocacy.
There was no fault in the Council’s handling of care charges or in communication regarding financial responsibilities, as Mr D was not liable, personally, for the fees. The Council was found at fault for not recording its decision not to pursue a CHC checklist and for not responding fully to Mr D’s requests about CHC, but this did not cause injustice as ‘the outcome would not have changed’.
The Council took reasonable steps regarding safeguarding concerns about Ms E’s niece.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Care Act 2014, associated statutory guidance, and the Care and Support (Charging and Assessment of Resources) Regulations 2014 sets out councils’ duties to assess needs, involve individuals as much as possible, and carry out financial assessments before charging for care.
Councils must respect the wishes and capacity of individuals regarding involvement of family members, and must appoint independent advocacy where it is triggered as defined in s67 of the Act.
Safeguarding duties under section 42 of the Care Act require councils to act on reasonable suspicions of abuse or neglect. The Mental Capacity Act 2005 and its Code of Practice require best interests decisions to be person-centred, involving the individual as far as possible and consulting others only when appropriate.
There is a duty to refer people to the Integrated Commissioning Board when a council thinks that a person may need to be considered for Continuing Health Care status.
Councils must keep clear records when deciding not to pursue NHS Continuing Healthcare assessments and must respond to queries about CHC eligibility with advice and information because it is part of how the whole system works.
Charging decisions must be based on financial assessments, and councils have no duty to inform relatives who are not liable for care fees. They do, however, need to grapple with the absence of anyone with authority to disclose information. If she lacked capacity to make decisions about her care and support needs then she would have also lacked capacity regarding management of her money and the application for deputyship BY the Council, in view of her wishes, should have been made much sooner, in our view.
The investigator mentioned that the NHS Framework 2022 says the Checklist should be completed when there may be a need for NHS CHC, but there will be many situations when it is not necessary to complete a Checklist. For example, ‘where it is clear to practitioners working in the health and care systems that there is no need for NHS CHC at this point in time.’ But it also says that ‘Where appropriate/relevant this decision and its reasons should be recorded. If there is doubt between practitioners, a Checklist should be undertaken.’
The investigator said this: I have explained to Mr D that it was not possible for him to make an application for CHC. Only a health or social care professional can start the two-stage assessment process for NHS funding (see paragraphs 22 to 27).
This is not accurate, unfortunately.
The framework says this: An individual cannot self-refer for NHS Continuing Healthcare by completing a Checklist themselves. The individual can request a Checklist from their ICB, for further details see Practice Guidance note 14.
PG 14 Can someone self-refer by completing a Checklist themselves? [our emphasis]
14.1 No. If the individual is known to a health or social care practitioner, they could ask that practitioner to complete a Checklist. Alternatively, they should contact their ICB NHS continuing healthcare team to ask for someone to visit to complete the Checklist, or if they already have a care home or support provider, they could ask them to contact the ICB on their behalf. Where the need for a Checklist is brought to the attention of the ICB through these routes it should respond in a timely manner, having regard to the nature of the needs identified. In most circumstances it would be appropriate to complete a Checklist within 14 calendar days of such a request.
Mr D could have been steered to this position by anyone who knew the Framework well enough to provide advice and information.
The investigator also left out mention of regulation 7 of the Care Act (Assessment) Regulations 2014 which puts council staff under a direct statutory duty to make the referral if they think it may be necessary to secure a Decision Support Tool Exercise for a client. But the reason was perhaps in the stance taken by the staff member who was asked: ‘Ms E did not meet the criteria and would not have progressed to a DST. It was therefore the Council’s professional decision not to complete a CHC checklist.’
Our problem with that is that we have encountered many council staff who say that they don’t bother with the Checklist these days because (in their experience and area, at least) nobody ever meets the criteria; our concern is that they may not know how low a threshold is in fact required for getting a DST, under the National Framework.
We do not think it was advisable for the investigator to say that there was no injustice because it could not have made any difference.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Suffolk County Council (24 001 150) report.
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