North Tyneside Metropolitan Council at fault for failing properly to advise on cost of care

Decision Date: 26th July 2019

What Happened

Mrs B complained on behalf of her father, Mr C.

In June 2017 Mr C was admitted to hospital following a fall.

Mrs B said that she was told by a hospital physiotherapist that the first six weeks of care on discharge would be free as ‘intermediate care’.

On 3 October 2017, the day before Mr C was discharged home, Mrs B reported that nursing staff confirmed he would be receiving “intermediary care.”

In legal terms, intermediate care and reablement support services are for people after they have left hospital or when they are at risk of having to go into hospital. They are time limited and aim to help a person to preserve or regain the ability to live independently. If the NHS is offering it, it’s free, of course.

Social Care regulations say if councils are offering it, then they must not charge for the first six weeks of what they provide as either intermediate care or reablement services. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014).

4. A local authority must not make a charge under regulation 3(1) where the provision made under section 2(1) of the Act [prevention services] is

(a) a service which consists of the provision of community equipment (aids and minor adaptations);

(b) intermediate care and reablement support services for the first 6 weeks of the specified period or, if the specified period is less than 6 weeks, for that period.

A social care assessment was completed on 9th September. It noted that Mr C had previously been recommended for intermediate care, but enquiries had been made with the hospital ward physiotherapist to establish what potential Mr C had for rehabilitation after discharge. The physiotherapist had said that Mr C would need two carers, had no rehabilitation potential, and that the intermediate care team had declined to support him.

After the assessment, the social worker completed an eligibility care and support plan. This noted that Mr C’s care needs could be met by four care calls a day, each with two carers.

The plan noted that Mr C would be a full cost payer and the care package cost was £486.67. The plan was not signed by Mr C and there was no evidence that it was ever shared with Mr C or his family.

Mr C was discharged on 4 October and the care provider began the calls in accordance with the care and service delivery plans.

On 24 October the Council wrote to Mr C about him paying the full cost for his care. It stated the hourly rate for homecare was £15.44. A declaration was enclosed, requiring a signature giving his agreement to pay for care.

On 25 October, on receipt of the letter, Mrs B telephoned the Council. She was advised that Mr C had not been discharged from hospital with a package of anything that counted as intermediate care.

Following this, Mrs B made her formal complaint to the Council on 30 October 2017. The Council acknowledged this on 1 November.

On 9 November the Council received the declaration form back from Mrs B and her father. Next to a declaration setting out that ‘financial and charging implications have been fully explained to me’, they had noted ‘No!’.

On 14 November the Council issued a letter which stated for the first time the weekly cost of Mr C’s homecare was £486.36, with effect from 4 October 2017.

On 24 November the Council issued the invoice for the first period of care, 4 October to 12 November 2017, at the hourly rate set out in the letter it had issued on 15 October 2017. Mrs B responded saying she had lodged a formal complaint because of her understanding that the first six weeks of her father’s care would be free of charge.

Internal email correspondence from the Council indicated that on 6 December the Council issued a repeat invoice, followed by a reminder on 2 January 2018 and a final warning letter on 12 January. Mrs B says that the correspondence threatened bailiff action for non-payment. She complained to the Council about this and action was then taken to put recovery of the disputed sum on hold while her complaint was under consideration.

The Council issued its response to Mrs B’s complaint on 10 January 2019, some 14 months after the complaint was made. 

  • The Council said it could not explain why Mrs B might have been misadvised by staff at the hospital. They said its own staff had not ever advised that the care would be free, and it referred to the information obtained from the physiotherapist about Mr C’s lack of potential for rehabilitation.
  • They accepted that there had been some failings in communication between the financial assessment team and Mrs B.
  • They also accepted that recovery action in respect of the disputed sum from the initial invoice should have been placed on hold in line with its usual practice. It apologised for these failings and any distress caused by the letters about recovery action and said advice would be given to relevant teams.

What was found

Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently. During an investigation, the council must keep the complainant informed of progress ‘as far as reasonably practicable’. If the council has not provided a response after six months (or, after any previously agreed longer period), it must write to the complainant to explain why. (Regs 13 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009).

There was no evidence that the Council made agreements with Mrs B to extend the complaint timeframe beyond six months; therefore the delay and failure to keep Mrs B updated amounted to fault. The Council acknowledged there had been delay. It apologised for it and offered Mrs B £100 in recognition of the time and trouble taken in pursuing her complaint. The LGO suggested an additional £50 would be a more appropriate remedy.

The LGO found that there was no evidence that the Council advised Mr C or his family that he would actually qualify for or receive free care. It was more likely that any such information came from hospital staff. However, there was no evidence that the Council told Mr C or his family there would be a charge for care, until the letter of 14 November 2017. That was fault.

The Council should ensure that service users have information about charges at an early stage and record that it has provided this information. Although a letter had been issued on 24 October, it only gave an hourly rate for homecare and did not specify that this was the cost per carer, and Mr C had been assessed to require the assistance of two carers at all care calls.

The LGO found that the faults did cause injustice. Mr C was presented with a cost for care which he had not been forewarned of; he was caused distress by the threat of recovery action including the use of bailiffs. In addition, his representative Mrs B was put to some considerable time and trouble trying to resolve the matter and there were communication failings and a long delay in that process which exacerbated this.

In recognition of the injustice, it was recommended that the Council:

  • Waive the cost of care for the six-week period 4 October 2017 to 16 November 2017 (the period from the commencement of care to the date of receipt of notification of the charges) and issue a revised invoice reflecting this;
  • Pay Mr C £100 in recognition of the distress caused by the letters issued warning about recovery action; and
  • Pay Mrs B £150 for the time and trouble taken in pursuing her complaint.
  • Ensure that all relevant staff are reminded of the need to correctly advise new service users about any costs for care they will incur, and properly record what advice has been given in this regard.

Points for the public and for teams attempting to do integrated hospital discharge:

  • It is obvious from this report that massive unforeseen aggravation can arise from woolly phrases such as intermediate care and reablement. We have heard of beds, packages of services, time limited or otherwise, you name it, referred to as interim, step down, discharge to assess, intermediate, rehabilitation, reablement, enablement, and even empowerment beds or services! Most nurses have never been to a public law legal framework training session and won’t necessarily understand that loose comments set up expectations on the part of people in hospital, which then return to haunt the council, as in this case.
  • The point is, unless you know what these words might mean, you would be wholly in the dark about the implications and people working in institutional settings need to remember that. If one is working in a joint team, with a pooled budget, under Better Care Fund arrangements or a s75 partnership for hospital discharge or one is a patient in an area where those arrangements have been developed, it is critically important to know who is going to be seen as the commissioner of that input.
  • If it’s an NHS service, it MUST BE FREE for however long it goes on for, and it can’t just be set to end, without the NHS having a look at you to see how you’ve managed and what you’ve gained from it – you have a status, you’re an NHS patient whilst you’re getting it, and they have a duty of care to you and can’t just STOP…- not without a review process – even if that’s a review service from another different sort of a service – one that will carry on thereafter, on a different footing.
  • If it’s described as a joint service, the whole point is that it should be free and that therefore it doesn’t really matter who’s seen as supplying it. Like the joint equipment service for instance. These types of initiatives are for a time limited period, and also need to be reconsidered at the end of any explicitly set period, by health or by social services staff, but they can end sooner, if one has achieved the goal. The underlying trigger for getting that service will be that only certain people qualify for it – one is not assessed for it as such, but there are criteria for being deemed suitable for the service.
  • If it’s the council, then it might be as service that is obliged to be for free, as opposed to one that might be charged for – and intermediate and reablement services are specifically mentioned as being in that category. That is, you will get it for free for up to six weeks, but only if it is a prevention service relating to a notion of regaining independence – a gain that you actually have some clinical potential for.
  • It is widely agreed in the sector that to make the most of reablement or intermediate care, you’ve got to be someone with sufficient mental capacity to be motivated to really hit it, as it were, proactively, as opposed to someone who has no option but to recuperate slowly from something – that latter sort of a slower service is what is known as a rehabilitation service, and those used to be FREE from the NHS, and for a lot longer than 6 weeks, until one had plateau-ed – so ask about that! Those services tend to be associated with particularly serious incidents such as stroke and catastrophic injuries but there is no reason why they should have to be seen that way – it’s all down to the local CCG.
  • If the NHS has no service capacity to provide something that is advertised, ie by way of a Rapid Response service, to get people home, or the local council has literally run out of reablement services capacity, they should buy more in, because of the overall purpose of their planned vision – but more often you will find that you get ordinary home care commencing even if you would have had the potential for reablement. In that case, one should consider refusing to pay for it, we think, until clarification has been provided.
  • Yes, the home care will not actually DO for you what the reablement would have done, and in some ways it may do MORE for you than you need. You may have mixed feelings about paying from the very outset if it’s not what was actually needed. But it’s better than staying in hospital, for most, given what can happen there, through nobody’s actionable fault.
  • And YES, prevention services such as reablement and equipment provided in advance of a community care Care Act assessment, are not an individually enforceable entitlement, so they don’t have to deliver what was advertised as being the local vision.
  • But we are very sure indeed that no council should automatically charge under s14 for ordinary home care, for something that was supposed to be available, and which one’s been denied just because there’s been a rush on, or because the joint fund that’s paying for all of that sort of help in the interests of smoother NHS hospital discharge and less blocked beds, has just run dry, whilst nobody from the NHS and council’s joint board will authorise any further spend! It’s a political issue, more than a legal one. The council has a discretion NOT to charge, and that kind of situation described above, is a very good reason for not charging, we think, if one wants happy customers.

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report of Stoke-on-Trent City Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/domiciliary-care/18-017-623

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