Summary: Mrs A complains about a Council and Trust in relation to her sister, Mrs B’s discharge from hospital and her subsequent care at home. The Ombudsmen did not find fault with the discharge, or the care provided. However, they did find fault with the Council charging Mrs B for her care and the Council has agreed to cancel its bill for care.

The complaint

1. Mrs A complained about South Tees Hospitals NHS Foundation Trust (the Trust) and North Yorkshire Council (the Council) in relation to her sister, Mrs B’s hospital discharge and subsequent care in January 2023.
2. Mrs A said the Trust and Council made her sister agree to a package of care when she was very ill in hospital and just wanted to go home. She said the package of care was poor and left her sister with an inadequate oxygen system.
3. Mrs A said the lack of proper care placed a huge workload on her family to provide support.
4. In addition, Mrs A has said as the package of care was under the Discharge to Assess scheme, the Council should not have charged her for the first four to six weeks.
5. As an outcome of the complaint, Mrs A would like the Council to stop pursuing a bill for payment for what she said should have been free care.
6. In addition, she would like the Council to challenge what she feels is inadequate care and lack of training at the care company which cared for her sister.
7. Finally, Mrs A would like the Trust to have better training on communication with patients and discharge, so it is not pressuring severely ill patients to agree to care packages they do not understand.

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The Ombudsmen’s role and powers

8. 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 (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
9. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
10. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
11. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

12. During my investigation I have considered evidence from the Council, the Trust and Mrs A.
13. I have also considered the relevant national guidelines and legislation.
14. I gave the organisations and Mrs A the opportunity to comment on my draft decision before I made my final decision.

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What I found

Background

15. In January 2023 Mrs B lived independently at home. She went into hospital with anaemia and was discharged in late January 2023 with a package of care arranged by the Council. This package consisted of a visit from carers in the morning and evening and oxygen support in the form of oxygen tanks in her house for her to use.
16. Mrs A complained about the standard of the care package and the charges for the package. The Council responded to the complaint in March 2023 and Mrs A approached the Ombudsmen. Mrs B died in June 2023.

Mental Capacity Act

17. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
18. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.

Discharge to Assess

19. Hospital discharge and community support guidance (updated 1 July 2022) outlines the Discharge to Assess process for patients who have recently been in hospital.
20. Under the Discharge to Assess approach to hospital discharge, the majority of people are expected to go home (to their usual place of residence) following discharge. An assessment of longer-term needs should take place once they have reached a point of recovery, where it is possible to make an accurate assessment of their longer-term needs.
21. Multi-disciplinary hospital discharge teams comprising professionals from all relevant services (such as health, social care, housing and the voluntary sector), should work together so that no one should transfer permanently into a care home directly following an acute hospital admission. Everyone should have the opportunity to recover and rehabilitate at home (wherever possible) before their long-term health and care needs and options are assessed and agreed.
22. This approach reduces exposure to risks such as hospital-acquired infections, falls and loss of physical and cognitive function by reducing time in hospital, and enables people to regain or achieve maximum independence as soon as possible.
23. Care should be free at the point of delivery, regardless of ongoing funding arrangements.
24. Support services should be time limited - up to 6 weeks apart from in exceptional circumstances.

Mrs B’s discharge from hospital

25. Mrs A said her sister was ill and confused towards the end of her hospital stay. Despite this she said that staff at the hospital, including social workers from the Council, pressured her sister to agree to the discharge and the package of care. Mrs A felt her sister was not in the right mental or physical state to make such a decision.
26. The Council and the Trust both said Mrs B was able to make decisions about her care and was happy to go home with a package of care she agreed to.

Analysis

27. There is evidence in the discharge records that staff considered Mrs B’s ability to make decisions about her care. They were satisfied she could make these decisions and there was no need for a formal mental capacity assessment.
28. In view of this, I have not found fault in how the Trust and Council considered Mrs B’s mental capacity and there is insufficient evidence of any pressure placed on her to accept the care package.

Package of care

29. Mrs A has highlighted a lack of care provided to her sister. She said the family had to make adaptations to her sister’s home as carers could not transfer her in and out of the bath and shower. She also criticised the oxygen tank tubes being left out and so being a trip hazard for her sister. In addition, Mrs A had to travel a long way to carry out her sister’s shopping and make her meals.
30. The Council said that there were no issues raised by Mrs B in relation to her personal care. It went on to say that carers reported that Mrs B would sometimes have showered by the time they arrived.
31. The Council said the care package was for help with meals and personal care and Mrs B reported being happy with the care provided.
32. The Council said that Mrs B was very clear that she had family members around, in particular her sister, to help her with shopping and other support. It went on to say Mrs B cancelled most of her evening calls as she stated her sister was around to help her.
33. Regarding the oxygen, the Trust said it prescribed the oxygen and provided support to Mrs B with this. It carried out a risk assessment and a risk checklist which Mrs B signed. The Trust gave her the details for the respiratory nurse and technicians to contact for support. In the period between January and April 2023 Mrs B had four home visits and three telephone calls with the respiratory nurse.
34. The Trust said on each home visit and telephone call it advised Mrs B around reducing the risk of trips and told her not to use the oxygen whilst moving around the house to minimise risk.
35. After the initial home visit, the original tubing was shortened, and a second tank was installed in the bedroom to further reduce tubing length and trip risk. The Trust said unfortunately, oxygen therapy can only be delivered via tubing so it was unable to fully remove risk but it tried to minimise the risk.
36. The Council also said the oxygen tubes were long but the care provider carried out a falls risk assessment and arranged the tube in such a way to reduce trip hazards. It also said there were no trips or falls in this period.

Analysis

37. Regarding the package of care, there is evidence in the Council records that Mrs B was happy with the care she was having. She went as far as to cancel the care in February 2023, saying she was independent enough to manage. This may have also been because she was being charged for it and getting help from her sister. However, there is enough evidence to say on the balance of probabilities, there was no fault with the care package.
38. In relation to the oxygen, there is evidence in both Trust and Council records that they carried out sufficient work to minimise the inevitable risks involved and provide Mrs B with the appropriate support. Therefore, I do not find fault in relation to this aspect of the complaint.

Payment for the care package

39. Mrs A said that under Discharge to Assess, this care, which was provided from 27 January to 21 February 2023, should have been free.
40. The Council said that Mrs B was asked if her finances were above the £23,250 threshold by which people have to pay for their care. Mrs B did not confirm this and declined financial assessments on more than one occasion. Therefore, the Council had to assume she could pay for her care and this care was chargeable.
41. In response to the Ombudsmen’s enquiries, the Council said that its reablement team did not have capacity to care for Mrs B and so it had to contract a home care company and this care was chargeable. It said Mrs B was happy with this arrangement and agreed to pay for this care. Therefore, this care bill is still outstanding and payable.

Analysis

42. Discharge to Assess care should be free for someone up to six weeks or until their needs are assessed. In this case Mrs B cancelled the care before she was assessed in her home setting. However, this was not a fault on her part.
43. In addition it was fault for the Council to tell Mrs B that this care had to be paid for when it is clear from the Council’s documentation it was discharging her under the Discharge to Assess scheme and so the care had to be free.
44. Therefore, it does not matter that Mrs B agreed to pay for the care as she was not made aware that it was supposed to be free.
45. In addition, a lack of availability of the reablement team is not a defence to not making this care free, and so it was fault for the Council to charge Mrs B. This led to a cost to her and distress for Mrs A.

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Recommendations

46. Due to the fault I have found in relation to charging which caused Mrs B financial loss and Mrs A distress, I recommend that, by 17 January 2024, the Council write to Mrs A to:

• apologise for the distress caused by charging her sister for her care; and
• confirm it has cancelled the debt incurred for Mrs B’s care.

47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I found fault with the Council in relation to charging, but no fault with the Trust or in relation to the other aspects of this complaint.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman