The Ombudsman's final decision
Summary: We will not investigate Mr P’s complaint about arrangements for his mother to be discharged from hospital to a care home, and about the funding of her care there. We are unlikely to find fault by the organisations, and further investigation of the complaint is unlikely to achieve more.
The complaint
Mr P complained about the actions of Lincolnshire County Council (the Council) and United Lincolnshire Hospitals NHS Trust (the Trust) in March 2020, when his mother Mrs N was being discharged from hospital. He said the organisations failed to properly involve Mrs N’s family in discussions about her care home placement or how it would be paid for. Mr P also complained about how the organisations handled arrangements to deprive his mother of her liberty using Deprivation of Liberty Safeguards (DoLS).
Mr P said the organisations had breached funding guidelines and had not acted in line with the Trust’s discharge policy. He also said he did not think Mrs N, or her attorneys on her behalf, should be liable for the care home fees.
Mr P said he wanted an apology for what had gone wrong, and payment for the costs of his mother’s care up to February 2021, at which point a new assessment was done and the fees arrangement changed.
The Ombudsmen’s role and powers The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA) The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship. If it has, they may suggest a remedy. (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended) When considering complaints, if there is a conflict of evidence we reach our views based on the balance of probabilities. This means we will weigh up the available relevant evidence and decide what we think was more likely to have happened.
We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe: it is unlikely we would find fault, or it is unlikely we could add to any previous investigation by the organisations.
(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I have considered written evidence from Mr P including his complaint documentation and correspondence from his solicitors. I have considered written evidence from the Council and Trust including complaint records and records from the Council’s adult social care team. I have also considered relevant law and guidance.
What I found
Relevant law and guidance Hospital discharge Schedule 3 to the Care Act 2014 and the Care and Support (Discharge of Hospital Patients) Regulations 2014 set out arrangements for the discharge of hospital patients with care and support needs.
The National Institute for Health and Care Excellence has issued guidance on “Transition between inpatient hospital settings and community or care home settings for adults with social care needs”, NG27 2015. This makes it clear that NHS organisations and local authorities should make sure that, where appropriate, the views of family members are included in discharge planning.
Deprivation of Liberty Safeguards (DoLS) The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.
Charging for residential care The Care Act 2014 sets out the legal framework for charging for care and support. Councils can make charges for care and support services they provide or arrange. They must do so in line with the Care and Support (Charging and Assessment of Resources) Regulations 2014.
When the Council arranges a care home placement, it must follow the regulations when carrying out a financial assessment to decide how much a person must pay towards the cost of their residential care.
The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit (£23,250) must pay the full cost of their residential care home fees.
The Care and Support Statutory Guidance sets out some key principles councils should take into account when making decisions on charging. The approach to charging for care and support needs should be clear and transparent so people know what they will be charged.
NHS Continuing Healthcare NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. CHC funding can be provided in any setting and can be used to pay for a person’s residential nursing home fees in some circumstances.
What happened Mr P’s mother Mrs N went into hospital in early 2020. In early March the Council did a needs assessment to look at plans to support Mrs N after she was discharged from hospital. The needs assessment noted Mrs N had two children, Mr P and his sister Ms C. It also noted Ms C provided a lot of support for Mrs N at home, had been struggling to cope and felt unable to continue due to Mrs N’s increasingly challenging behaviours. The hospital discharge team felt Mrs N would need to be discharged to a care home placement rather than back to her own home.
Whilst in hospital, a social worker assessed Mrs N and found she lacked the mental capacity to make decisions about her discharge arrangements. Mr P and Ms C had joint Lasting Power of Attorney (legal authority to make decisions on Mrs N’s behalf) about property and financial matters but not for decisions about her health and welfare. This meant health and social care staff would make decisions about her hospital discharge in her best interests, as she lacked capacity to make the decisions herself.
A social worker noted Mrs N had a Deprivation of Liberty Safeguard (DoLS) in place in hospital and would also need one once she was discharged to a care home placement.
The discharge team decided Mrs N needed a care home placement for short term care after her discharge from hospital. They said a community social worker would then review Mrs N in the care home to make longer-term decisions about where she would live.
On 6 March a social worker completed a best interests assessment, which noted Mrs N would be discharged to a Care Centre for Short Term Care, awaiting a full assessment of her longer term needs.
A social worker then completed an Adult Needs Assessment on 12 March. This document noted Mrs N’s representative for her financial affairs had been told Mrs N may need to make a contribution towards the cost of her support. The social worker wrote “Daughter [Ms C] confirmed that [Mrs N] has below the financial threshold and confirmed that she understands [Mrs N] will be charged the flat rate fee for short term care.”
The hospital and social care records also note that: Ms C was happy for the discharge team to try to source a care home bed for her mother Ms C was aware her mother would need to self-fund any long-term placement Ms C said she had been to the bank and found her mother actually had over £23,250 in savings as well as her property The social worker told Ms C that Mrs N would be a self-funding resident at the Care Centre based on her finances On 13 March Ms C emailed the social worker to confirm Mrs N had moved to the Care Centre.
A few weeks later, a social worker spoke with Ms C about the Care Centre fees as they were unpaid. Ms C initially said she knew nothing about the family having to arrange for payment for the placement. The social worker reminded her they had discussed issues about finances and paying for the placement. The social worker confirmed Mrs N would need to pay for the placement and she asked Ms C to complete and return the financial assessment documents.
After this, Mr P contacted the Council and Trust to raise questions about the arrangements for his mother’s move to the Care Centre and about information the organisations had given the family about finances and paying for care. This then became a formal complaint.
Mrs N was assessed for potential eligibility for NHS Continuing Healthcare in July 2020 and was not eligible. In September 2020 the Council carried out an Adult Needs Assessment for Mrs N. The assessor noted Mrs N lacked capacity to make decisions about her care and support needs, and that these decisions would need to be made in her best interests. The assessor also noted Mr P and Ms C did not have Lasting Power of Attorney for health and welfare issues at that point in time. The assessor noted the fees for the placement were under dispute and Mrs N’s family had declined to complete a Financial Assessment.
In the meantime, the Trust wrote to Mr P in August 2020. It explained why a DoLS had been put in place for Mrs N. It also said Ms C was aware of the discharge arrangements and about the funding of the placement. The Trust said Ms C was “clearly involved in decision-making” and had agreed to share the information with Mr P. The Trust said there was no evidence Ms C was misled about her mother’s care or the discharge arrangements.
The Council wrote a number of letters to solicitors acting on Mr P’s behalf. The Council acknowledged Mrs N’s discharge from hospital was carried out with limited conversation and contact with her family, and there had been delays sending out financial documentation. The Council said the communication between the hospital and community social care teams seemed to have caused some confusion, leading the family to believe Mrs N’s care would initially be free of charge until a full assessment took place at the Care Centre.
The Council said it would pay for six weeks of short-term care, between 12 March and 23 April 2020. It also apologised and said it would take action including ensuring staff were aware of relevant policies and procedures including financial procedures.
Mr P, via his solicitors, continued challenging the Council’s position and said he wanted to see documentary proof of what the Council had said in its responses.
Mrs N died in January 2022. The fees for her placement at the Care Centre remain outstanding.
Analysis I have carefully considered all the evidence, including Mr P’s accounts of events and the records from the Council and Trust.
It is clear Mr P feels strongly about this matter. His views about what the family was told about plans for Mrs N’s discharge from hospital and how her placement would be paid for differ from those of the Council and Trust. It is difficult to resolve these differing accounts. Where there is a conflict of evidence we reach our views based on the balance of probabilities.
The Council has already acknowledged its communication with Mrs N’s family about the hospital discharge and the funding of her placement could have been better and had led to confusion. The Council agreed to pay for the first six weeks of Mrs N’s placement at the Care Centre.
We are unlikely to find further fault by the Council or Trust in terms of the arrangements for Mrs N’s discharge from hospital or about information given to her family. The written records from the Council, made at the time of events, show regular conversations with Ms C about the discharge arrangements, including the placement itself and about how it would be paid for. As Mr P and Ms C did not have Lasting Power of Attorney for health and welfare matters they did not have decision-making authority about where Mrs N would be discharged to. However, the organisations spoke with Ms C regularly and took her views into account. I have not seen anything to suggest Ms C was misled or misinformed about what was going to happen.
The Council carried out a further Adult Needs Assessment of Mrs N in September 2020. It noted she lacked capacity to make decisions about her care and support needs and needed the ongoing 24-hour support provided by the Care Centre to meet her care needs. Mr P and/or Ms C did not have Lasting Power of Attorney for health and welfare matters at that point. We are unlikely to find fault by the Council. It carried out an up-to-date assessment of Mrs N’s needs and decided her needs would be best met by remaining in the placement at the Care Centre. The assessment appears to be based on relevant information and I have not seen any indications of fault in how the Council carried this out.
Based on the above, we are unlikely to find fault by the organisations and we are unlikely to be able to add anything to the investigations already carried out.
Final decision
We have decided not to investigate Mr P’s complaint about arrangements for his late mother to be discharged from hospital to a care home, and about the funding of her care there. We are unlikely to find fault by the organisations, and further investigation of the complaint is unlikely to achieve more.
Investigator's decision on behalf of the Ombudsman