Decision : Upheld
Decision date : 22 Jul 2019
The Ombudsman's final decision:
Summary: The complainant, Ms G, said Hertfordshire Partnership NHS Foundation Trust and Hertfordshire County Council failed to properly plan her discharge from hospital and provide her with formal support after she was discharged from hospital. Ms G said this had an adverse impact on her wellbeing. She also said Watford Borough Council failed to consider her homelessness and housing application properly which meant she remained in unsuitable accommodation for too long. On the evidence available the Ombudsmen found no fault in the way the Borough Council dealt with Ms G’s homelessness situation. There were faults in the way the Trust discharged Ms G from hospital and both it and the County Council failed to assess all her needs once she was in the community and this had adverse impact on Ms G’s wellbeing. The Trust and the County Council have agreed to the Ombudsmen’s recommendations and will apologise to Ms G and pay her a financial remedy to acknowledge the adverse impact the faults had on her wellbeing. The Trust and the County Council will act to improve discharge planning and the requirement to complete formal assessments in line with the Care Act 2014.
- The complainant, who I shall refer to as Ms G, complains that following a voluntary stay in hospital her discharge arrangements were flawed and Hertfordshire County Council (the County Council), Watford Borough Council (the Borough Council) and Hertfordshire Partnership NHS Foundation Trust (the Trust) failed to work together. She says the Borough Council failed to consider her homelessness and housing application properly and she remained in unsuitable temporary accommodation for too long. Ms G also complains about a lack of care and support provision by the Trust and the County Council since her discharge from hospital. She faults by the authorities leaves her in unsuitable accommodation which also has an impact on her wellbeing.
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, 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 (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1)).
- 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.
- 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)
How I considered this complaint
- I have considered information provided by the complainant and information from the organisations named in this complaint they provided in response to the Ombudsmen’s enquiries. I have also considered the law and guidance relevant to this complaint. All parties have had an opportunity to respond to a draft of this decision.
What I found
Legal and administrative context
- Under the terms of the Mental Health Act 1983, a patient who has a mental disorder and refuses treatment may be detained for treatment if certain conditions are met. Prior to doing so two qualified medical practitioners must assess the patient and agree that the patient is suffering from a mental disorder of a nature or degree that the patient ought to be detained in hospital in the interests of their own health or safety of other. Detention is not considered when less restrictive alternatives are felt to be available.
- The purpose of detention under section 2 is for assessment of a patient’s mental health and to provide any treatment they might need. Patients can be detained under section 2 for a maximum of 28 days.
- The Trust’s Transfer and Discharge Policy says, “A delayed transfer of care from acute or non-acute (including PCT and mental health) care occurs when a patient is ready to depart from such care and is still occupying a bed. A patient is ready for transfer when:
a. A clinical decision has been made that patient is ready for transfer AND
b. A multi-disciplinary team decision has been made that patient is ready for transfer
c. The patient is safe to discharge/transfer.”
- Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. An assessment must be provided to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved.
- Paragraph 6.13 of the Care and Support Act 2014 Statutory Guidance states that local authorities must undertake an assessment for any adult with an appearance of need for care and support, regardless of whether the local authority thinks the individual has eligible needs and regardless of their financial situation.
- Local authorities must ensure that any adult with an appearance of care and support needs, and any carer with an appearance of need for support, receives a proportionate assessment which identifies their level of needs. Where appropriate, an assessment may be carried out over the phone or online. In adopting such approaches, local authorities should consider whether the proposed means of carrying out the assessment poses any challenges or risks for certain groups, particularly when assuring itself that it has fulfilled its duties around safeguarding, independent advocacy, and assessing mental capacity.
- The County Council had a section 75 agreement in place with the Trust during the time it received the referral. The agreement says the Trust has delegated responsibility as described in the Care Act 2014 for assessments, care management, support planning and reviews, commissioning of all care and support packages...”. It also says, these responsibilities should be delivered in line with the Care Act’s guiding principles such as wellbeing, prevention, information and advice and integration, co-operation and partnership.
- Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
- When a person applies to a council for accommodation and it has reason to believe they may be homeless or threatened with homelessness, a number of duties arise, including:
- to make enquiries;
- to secure suitable accommodation for certain applicants pending the outcome of the enquiries;
- to notify the applicant of the decision in writing and the right to request a review of the decision.
- people with dependent children;
- pregnant women;
- people with serious health problems;
- some elderly people.
non-active. A review date will be set, however if the applicant clears the former tenant arrears before the review date it is their responsibility to notify the council.”
- Ms G has been in contact with mental health services since 2007. She is diagnosed with a personality disorder and persecutory anxiety. She lived in a property owned and managed by a Housing Trust for about 10 years. During the term of her tenancy Ms G reported problems with her heating and electrical systems and made complaints about her neighbours. An escalation in incidents resulted in police involvement.
- Ms G was detained in hospital under section 2 of the MHA in November 2015 after undergoing an assessment. The responsible clinician’s view was that Ms G was paranoid towards her neighbours. While in hospital Ms G’s landlord, the Housing Trust, obtained an injunction and this prevented her from returning to the property she had previously rented for about 10 years.
Discharge planning by the Trust
- The Trust said the discharge planning process took place in regular reviews while Ms G was on the ward. Ms G had a care coordinator before she went into hospital but had asked for a change in care coordinator.
- The Trust’s records show a professional meeting took place in January 2016. Attendees included the Trust, Ms G’s landlord, her care coordinator, her probation officer and the police. The Housing Trust said it would help Ms G to move to one of its supported housing schemes because she could not return to the property she was renting.
- Ms G’s care coordinator went to visit her near the end of January and spoke to her about the option of supported housing. The record of the meeting states Ms G did not want to consider this option at the time because of an ongoing court case. Later the same day Ms G telephoned the care coordinator to say she had changed her mind and agreed to apply for supported housing.
- A discharge planning meeting was held at the end of January with Ms G, her solicitor the care coordinator and a doctor present. The record of the meeting states “housing officer told her she can go back to her flat until she is rehoused”. Ms G’s solicitor stated she could not go back to her flat because of the issues with her neighbour and the interim injunction. The care coordinator completed an application for supported housing and sent this to a supported housing provider.
- The Housing Trust told the care coordinator Ms G had rent arrears as her rent had not been paid for four months while she was in hospital. Ms G attended court a few days earlier and reported she could not return to the property owned by the Housing Trust because there was a restraining order in place.
- Ms G remained in hospital as a delayed transfer of care as she was assessed as no longer needing an acute hospital bed from early February 2016. The records show the Trust’s clinicians discussed the possibility of Ms G returning home.
Ms G told clinicians she could not return to the property because of the problems with her neighbours and a lack of utilities. A social worker contacted the Housing Trust about supported housing but was told no properties were available.
- The care coordinator spoke to the Continuing Care and Placement Service (CCPS) to outline the situation in Ms G’s care. The care coordinator told the CCPS Ms G could not return home and asked for advice. The CCPS said it was unlikely Ms G would qualify for a funded placement and the CCPS did not provide emergency accommodation. The CCPS noted Ms G had rent arrears which appeared to be preventing her transferring to another. The CCPS’ placement advisor provided other options for the care coordinator to consider
- Ms G spoke to the care coordinator about her housing situation. She confirmed the courts had said she could not return to the property and the care coordinator noted she was ‘officially homeless’. Ms G raised concerns about how she would get her belongings from the property. The care coordinator said, “something will be sorted”.
- The care coordinator spoke to the Housing Trust at the beginning of March. The Housing Trust said they could not rehouse Ms G and did not owe her a duty of care to provide her with interim accommodation. The care coordinator noted the need to contact a different housing provider.
- A social worker pursued the option of a step-down bed but was told this option would not be suitable for Ms G. The same social worker spoke to a housing association about supported housing and confirmed Ms G’s application was active, but the housing association did not have any vacancies.
- Ms G’s care coordinator then had a meeting with the Trust’s Housing and Accommodation Advisor. Following the meeting the advisor agreed to contact the Borough Council. The advisor contacted the Borough Council by email and received a reply from a Housing Casework Coordinator. The caseworker said she had discussed Ms G’s situation with the management team who said without a full risk assessment the Borough Council could not place Ms G in temporary accommodation. The caseworker said once a full medical and risk assessment was provided the Borough Council would review its decision.
- A doctor completed a ward round in March and discussed Ms G’s housing situation with her as well as her general health and presentation. The Trust’s notes state, “to contact social regarding accommodation. Discharge on 29 of March”.
- Ms G was discharged from hospital on the date noted and met her care coordinator at the Borough Council’s housing office. The notes suggest the Borough Council could not consider a homelessness application for Ms G because:
- she was discharged from hospital without any paperwork;
- the Housing Trust had confirmed there was an interim injunction in place and not a full injunction (so Ms G could return to the property) but the Housing Trust would apply for a full injunction if she did return; and
- the Borough Council had not received a risk assessment from the Trust to inform the homelessness application process.
Ms G’s discharge with further information. The advisor said “[Ms G] is homeless due to miscommunication from the care coordinator which I am trying to resolve so that this vulnerable woman does not end up on the streets.” The Borough Council confirmed it would place Ms G in temporary accommodation that evening.
The Borough Council’s Housing Role
- The Borough Council accepted that it owed Ms G an interim duty under
section 188(1) of the Housing Act 1996 from 29 March 2016 when she was discharged from hospital. It said the hospital did not follow the discharge policy which states it should have given the Borough Council at least five days notice to allow it to find suitable accommodation for Ms G. Nevertheless, it accepted Ms G was homeless and placed her in interim accommodation.
- The Borough Council initially placed Ms G in a hotel which was not in her preferred area. It said this was because it was not given enough time to find an alternative. The next day it offered her accommodation in a shared house for couples and singles. After it gathered more information it became aware Ms G needed self-contained accommodation in her preferred area due to problems associated with her mental health illness.
- The Borough Council said it had limited temporary accommodation options that would suit Ms G. Some are owned by her former landlord (who would not accept her) and some were out of area. The Council accommodated Ms G in a hotel and it said this was because of the limited choices available.
- The Borough Council then made inquiries into Ms G’s homelessness application. From September 2016, it accepted her as eligible, unintentionally homeless and in priority need. She was then accommodated under section 193(2) of the Housing Act 1996 in temporary accommodation.
- Ms G contacted her care coordinator and said she did not like paying rent towards two properties. A case note refers to the care coordinator contacting the Housing Trust about this. The Housing Trust’s officer told the care coordinator that Ms G could not end her tenancy because she would be deemed as making herself intentionally homeless. The Housing Trust’s officer said they could not end Ms G’s tenancy because this would put her in the same situation.
- In May 2017, the Borough Council offered Ms G temporary accommodation that it considered suitable. Ms G and her legal representative raised concerns about the suitability of the property. After further consideration the Borough Council maintained the property was suitable. The Borough Council told Ms G of her right to request a formal review under section 202 if she felt the property was unsuitable. Ms G said she spoke to the housing benefit department who said they could not pay towards two properties.
- The Borough Council wrote to Ms G in response to her request for a review of the decision to suspend her housing application a few months earlier. The letter said the reason for suspending Ms G’s application was because of former tenant arrears accrued at the Housing Trust’s property she was prevented from returning to. The letter said the Housing Trust confirmed the arrears started building up from around the time Ms G went into hospital and the amount owed amounted to £4504.43. The letter confirmed housing benefit had stopped paying for the property on the date Ms G was discharged from hospital. The letter said Ms G had not paid towards her arrears nor had she set up a new repayment plan. The letter confirmed Ms G remained suspended on the housing register.
- The Borough Council’s offer letter also sent in July 2017 set out the property offered was a 1 bedroom flat in the private rented sector. The Borough Council noted it had considered factors such as size, location, medical and welfare needs and affordability. The letter formally advised Ms G she had the right to request a review if she believed the accommodation to be unsuitable. The letter said “should you decide to submit a review we strongly encourage you to accept the tenancy, move in and still seek a review regarding the suitability from the property… Any such request for a review must be received within 21 days from the date you are notified of this decision.”
- Ms G did not formally request a review but has complained to the Borough Council about issues with the property. The Borough Council confirmed it does not own or manage the property so issues relating to repairs or other property related issues are between Ms G and her landlord. Ms G’s main concerns are about the safety of the gas boiler The Borough Council said Ms G has also contacted its Environmental Health and Licensing teams about the issues.
The County Council’s Role
- Ms G’s probation officer contacted the County Council by email in June 2016 when she was living in temporary accommodation. The probation officer made a referral citing concerns about Ms G’s vulnerability and deterioration in her wellbeing. The probation officer said it had been difficult to contact the mental health team.
- The County Council said it felt the information provided in the referral focused mainly on mental health issues so it passed this onto the Trust through the single point of access service (SPA). The Council said it did not consider the information provided in the referral should be considered under its safeguarding procedures.
- The note relating to the SPA referral said Ms G had “clear mental health needs, deteriorating and needs support with social care and housing”. At the time of the referral the County Council had a formal arrangement in place with the Trust which meant the Trust should complete needs assessments as necessary.
Action taken by the Trust
- The records provided by the Trust show it received the referral from the County Council. There is no information in the case records to show what action it took once it received the referral. It did not review Ms G’s mental health or social care needs as a direct response to the referral.
- The Trust said it has several care plan documents on Ms G’s electronic patient record. Some of these documents are dated 19 June, 19 July and
16 September 2016. Ms G’s care coordinator withdrew from supporting her around this time and she continued to see a clinical psychologist. The Trust said the documents do not show Ms G was present for care planning meetings except for one document dated much later.
- Ms G continued to attend outpatient meetings where her medication was reviewed. In January 2017 her probation officer emailed a consultant psychiatrist working with Ms G. The probation officer said she was worried Ms G would become unwell again and living in a hotel had not helped her settle back into life following her discharge from hospital. The probation officer asked what the plan was for Ms G’s ongoing care and support.
- Ms G continued to have psychology sessions provided by the Trust over the next few months and met with a clinical psychiatrist who reviewed her medication. During these sessions, she raised concerns about her housing and care and support arrangements. The notes refer to her sometimes feeling angry and frustrated about what she perceived to be a lack of support from the organisations named in this complaint.
- Ms G contacted the Trust in July to confirm she had been offered a property and was due to move the next day. She asked whether she could have support to help her move her belongings. An officer within the Trust said it could not offer support after it had made enquiries with charitable organisations.
- The Trust’s records dated end of July completed by a social worker referred to a plan which included requesting an occupational therapy assessment, meds review, floating support and a psychological assessment. Ms G said she did not know what the outcome of the assessments were and said she did not receive floating support.
The way the Trust dealt with Ms G’s discharge
- The evidence available shows poor discharge planning by the Trust despite the regular reviews it refers to. The Trust had meetings with the Housing Trust but did not invite the Borough Council to the meetings. The Housing Trust did not owe Ms G a duty for housing so the Trust should have ensured the Borough Council, as housing authority, was invited to the meeting.
- Through the meetings the Trust had with Ms G’s landlord it was aware she could not return to her property. Although the Trust has no statutory responsibility as regards Ms G’s lack of appropriate housing it should have ensured it involved the appropriate agencies when planning her discharge. At the very minimum it should have involved the Borough Council in the process.
- NICE guidance NG27 says “From admission, or earlier if possible, the hospital‑ and community‑based multidisciplinary teams should work together to identify and address factors that could prevent a safe, timely transfer of care from hospital. For example:
- safeguarding issues
- lack of a suitable placement in a care home
- the need for assessments for eligibility for health and social care funding.”
The way the Borough Council dealt with Ms G’s homelessness application and housing application
- The evidence available shows the Borough Council acted to place Ms G in interim accommodation despite having only receiving limited information from the Trust. This is good practice and in line with housing legislation. Ms G was not happy with the temporary accommodation provided and was quick to tell the Borough Council. Although Ms G felt the accommodation was unsuitable the Borough Council has provided good reasons to show why it could only accommodate Ms G as it did. The Borough Council acted to move Ms G to accommodation in her preferred area as soon as practicably possible.
- The Borough Council began to make inquiries after it placed Ms G in the interim accommodation. Once it accepted it owed her a duty it then accommodated her in line with housing legislation. Although noted Ms G feels the accommodation was not suitable, I found no fault in the way the Borough Council made its decision.
- The Borough Council made Ms G an offer to discharge the homelessness duty it owed her. The letter set out Ms G’s right to seek a review but she did not do so. I appreciate there may have mitigating factors why Ms G did not ask for a review but the Borough Council is not at fault.
- The Borough Council’s letter setting out the reason why it had suspended her housing application said it was because of Ms G’s former tenant arrears. The letter said, “you had no intention of returning back to the property”. The evidence available suggests Ms G was prevented from returning to the Housing Trust property rather having no intention to return.
- The evidence available strongly suggests Ms G was advised by her landlord not to end her tenancy as this could imply she had made herself intentionally homeless. Despite Ms G’s landlord obtaining an injunction to prevent her from returning to the property the landlord did not act to end the tenancy. This is not something the Ombudsmen can consider further but Ms G can complain to the Housing Ombudsman Service about this.
- When Ms G was placed in temporary accommodation her housing benefit was used to pay towards this accommodation rather than the Housing Trust’s property she could not return to. Housing benefit cannot be paid towards two properties in situations like the one Ms G found herself in. Unfortunately, Ms G said this contributed to the build-up of rent arrears.
- The Borough Council’s letter about the housing application did not mention or consider the fact Ms G could not return to her property and the issues this caused with housing benefit. The letter discussed the arrears Ms G had and information gathered which concluded she did not have a payment arrangement in place. The Borough Council based its decision on section 8.2 of its Nomination Policy which refers to former tenant arrears.
- Since moving into the property Ms G has complained regularly to the Borough Council about issues relating to the gas supply, hot water supply and her suspicions that the property has not been subject to planning permission or building control. Officers from the Borough Council’s Housing and Environmental Health Teams have visited but have not found evidence to substantiate Ms G’s allegations.
- Ms G has also asked the utility companies to investigate her allegations and continues to feel the property is unsuitable for her needs. This remains an ongoing issue.
- The Borough Council said an occupational therapist carried out an assessment of the property in March 2019. The assessor concluded the bath was too small for Ms G to use and the landlord has refused to change the bath. The Borough Council had now accepted the property is not suitable for Ms G’s needs. Ms G is on a waiting list for supported accommodation. The Borough Council should keep this situation under review so that Ms G’s case
The way the County Council and the Trust considered Ms G’s needs
- The Ombudsmen will consider, in a complaint involving the NHS and the local authority, whether there are formal or informal arrangements between the two bodies and the nature of those arrangements. Where the NHS and local authority work together under partnership arrangements and the distinction between roles and responsibilities is unclear, the Ombudsmen will not spend disproportionate time deciding individual responsibility. In these situations, if the Ombudsmen find fault they will attribute it to the partnership as a whole and expect each body to contribute to any proposed remedies.
- The County Council did not formally assess Ms G’s needs assessment when it received a referral from her probation officer because it felt the information in the referral mainly focussed on mental health issues. The referral information cited concerns about Ms G’s wellbeing and the follow-on note referred to mental health needs but also referred to support with social care and housing.
- The threshold as to whether councils should complete an assessment of need is set at low. The Care Act statutory guidance says, “Local authorities must undertake an assessment for any adult with an appearance of need for care and support, regardless of whether or not the local authority thinks the individual has eligible needs or of their financial situation.”
- The Ombudsmen received information in response to our enquiries which confirmed the probation officer was concerned about Ms G’s mental health and social care needs. When the Council received the referral it had a joint arrangement in placement with the Trust which allowed it to complete social care assessments on behalf of the Council. Therefore, it was reasonable for the County Council to have sent the referral to the Trust with the expectation the Trust would pick up on any social care issues.
- When the Trust received the information about Ms G’s needs it did not act to assess her even though it had delegated responsibility from the Council to do so. Ms G attended outpatients’ appointments with a consultant psychiatrist the Trust did not complete an overall assessment of her health and social care needs. The Trust said it was also likely Ms G was not present for some care planning meetings. This is poor practice.
- In consideration of the wellbeing principal the Trust should have completed a formal needs assessment on behalf of the County Council so it could determine whether Ms G had needs requiring support. The Trust failed to do this. This is likely, on balance to have caused Ms G avoidable distress and frustration as well as having adverse impact on her wellbeing. As the Trust was acting on behalf of the County Council, I also find the County Council at fault.
- I have not seen evidence to show how the Trust formally considered Ms G’s social care needs until July 2017. An entry in the Trust’s records states an officer made an appointment to complete an assessment and an entry in the records provides a summary of the assessment. There is no evidence to show the Trust provided Ms G with a copy of the assessment and this is fault.
- There was fault by the Trust in the way it dealt with Ms G’s discharge from hospital. The fault is likely, on balance, to have caused Ms G avoidable frustration and distress. The Trust’s poor discharge planning also meant the Borough Council did not initially have all the information it needed to consider Ms G’s homelessness status.
- The Borough Council acted to place Ms G in emergency and then temporary accommodation. It then made her an offer of housing in line with the law and I do not find fault in the way it did this. The Borough Council accepts the property is unsuitable for Ms G’s needs following further assessment of the property by an occupational therapist. Ms G remains on a waiting list for more suitable accommodation. The Borough Council should keep this situation under review to ensure Ms G can achieve the outcome she desires.
- The Trust had authority to complete formal social care needs assessments on behalf of the County Council. The Trust failed to assess Ms G’s social care needs when it received information from the County Council which suggested Ms G had an appearance of need not just related to her mental health. The Trust then delayed in assessing Ms G’s needs despite the formal agreement in place. Furthermore, the Trust failed to share the outcome of assessments with Ms G and as a result she did was uncertain about her eligibility for support. The Trust was acting on behalf of the County Council which means the County Council is at fault.
- Within four weeks of the final decision the Ombudsmen recommend:
- the County Council apologises in writing to Ms G for the avoidable distress and frustration she experienced when it and the Trust decided not to formally assess whether she had needs eligible for social care and support. It should also pay her £250 to acknowledge the adverse impact on her wellbeing;
- the Trust apologises in writing to Ms G for the avoidable distress and frustration she experienced because of its poor discharge planning. The Trust should also apologise for the distress Ms G experienced when it delayed assessing her needs and failed to share the outcome of assessments with her. It should also pay Ms G £500 to acknowledge the adverse impact on her wellbeing;
- the Trust and the County Council provide Ms G with copies of assessments completed since her discharge from hospital which relate to her needs and eligibility for formal care and support such as social care, occupational therapy and her mental health;
- if necessary, the County Council and the Trust complete an updated coordinated assessment of all Ms G’s health and social care needs and ensure she is promptly provided with formal support if the assessment determines eligible needs. The assessment should note Ms G’s desire to move to more suitable supported housing accommodation;
- the Council and the Trust review any existing arrangements in place for joint working and ensure staff are reminded of the importance of completing formal assessments when presented with someone who has an appearance of need; and
- the Trust remind its staff in hospital settings of the importance of notifying partner agencies of someone’s discharge when it is known a patient has a need for housing. The Trust should also ensure that its staff complete formal discharge plans and ensure patients are discharged with all the documents they need to facilitate a good discharge and inform partner agencies.
- I uphold Ms G’s complaint against the County Council and the Trust. The Trust and the County Council have agreed to the recommendations. I have completed the investigation.
Investigator's decision on behalf of the Ombudsman