Summary: Mr X complained about the way the Council handled his brother’s discharge from hospital and then handled his complaint. The Ombudsman finds there was some fault in the way the Council handled the discharge, but the Council has already provided an appropriate remedy. There was no fault with the Council’s complaints procedure.

The complaint

1. Mr X complained on his own and his brother’s behalf about the Council's handling of his brother's discharge from hospital. He said failings by the Council meant on the day of discharge his brother was ill-prepared for the move, distressed and vulnerable. He said the family were also caused worry and distress.
2. Mr X also complained on his own behalf about the way the Council handled his complaint about the discharge failings. He said the Council was reluctant to address his complaints fully, there were delays and the Council would not allow recording of the meeting he attended. Mr X said this caused him stress and frustration.

Back to top

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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:

• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome (Local Government Act 1974, section 24A(6), as amended)

5. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

6. I have considered:
• information from Mr X’s complaint and from a telephone conversation with him; and
• case records and complaints procedure documents from the Council.
7. I gave Mr X and the Council an opportunity to comment on a draft of this decision. I considered the comments received before making this final decision.

Back to top

What I found

Legal and administrative background

The Mental Capacity Act 2005

8. The Mental Capacity Act 2005 sets out the principles for working with people who lack capacity to make a particular decision.
9. A person must be presumed to have capacity to make a decision unless it is established that they lack capacity. Just because someone makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
10. Where it is found that a person lacks capacity to make a particular decision, any act done for or any decision made on behalf of that person must be done or made in their best interests.

The statutory adult social care complaints procedure

11. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 set out the statutory basis for councils’ adult social care complaints procedures. The regulations require councils to make arrangements for handling adult social care complaints. The only time limit the regulations set out is that, normally, it should take no more than six months to complete a complaints procedure.

The Council’s adult social care complaints procedure

12. The Council decides how to handle each complaint, including the time it should take, on a case-by-case basis. It says different approaches will be appropriate in different cases. The Council says it will get back to the complainant to confirm it has fully looked into the issues raised and the complainant is happy the matter is resolved. It says it will continue the process until either the complainant is fully satisfied or the Council considers it has given an appropriate and proportionate response. The procedure refers to the right to complain to the Ombudsman.

What happened

13. Mr X’s brother, Mr Y, went into hospital in December 2018.
14. In January 2019 Mr Y was medically fit for discharge. However, a mental capacity assessment determined Mr Y did not have capacity to make decisions about his care needs and discharge destination. The Council then made those decisions in Mr Y’s best interests. The decisions were for Mr Y to move to a new area and make a new start with appropriate care and support. Mr X agreed with this decision.
15. Between the best interest decision and Mr Y’s discharge on 19 February 2019
    Mr Y’s health and mental capacity improved significantly. Mr Y’s social worker revised his assessment of Mr Y’s needs a week before discharge. The revised assessment noted the progress Mr Y had made but made it clear he still needed significant support. It said Mr Y still needed supervision when accessing shops or the community. It said he was still unable to deal with his finances and, as his family could not help with this, he would be referred to the Council’s money management team. The case notes from the15 February record Mr Y as needing a mental capacity assessment for managing finances. They also record that, in the interim the Council needed to make arrangements for shopping and financial management.
16. Mr Y’s social worker had considered different options for accommodation and arranged a short-term crisis flat for Mr Y in an extra care housing complex. He set up a care package of four visits a day to help Mr X with his personal care and other daily tasks, plus a weekly visit to do shopping.
17. The day before Mr Y’s discharge his social worker assessed that Mr Y did now have insight into his finances. The social worker noted Mr Y did not want to be referred to the money management team. The social worker had not checked
    Mr Y’s benefits.
18. On the day Mr Y left hospital he could access his bank account but had no money left in it. The social worker gave Mr Y £50 cash from a charitable fund. The social worker and other staff offered to buy food but Mr Y said he would buy it himself. The social worker offered Mr Y some more clothes from a store available at the hospital but Mr Y declined. Transport was booked to take Mr Y to his new flat. The care package was to start with a carer visiting that evening. The social worker had agreed the next day he would take Mr Y to his GP for an appointment and to the Job Centre to sort out his benefits.
19. Staff at the housing complex confirmed to the social worker Mr Y had arrived safely, was shown to his flat and his surroundings explained. Mr Y’s sister lived nearby but no-one told her in advance of Mr Y’s discharge. The hospital told her of the discharge after it happened and she drove to see him. She had not reached the flat before she saw him in the street, going to a shop. He was ill dressed for the weather, wearing slippers. She found him in the shop with the £50 cash. She bought some food for him and took him back to his flat.
20. The next day Mr X contacted the social worker’s manager. Mr X said Mr Y had been left very vulnerable on his discharge. He said the family had not been able to meet him at his flat because they had not been told what was happening. The manager took over the case and ensured over the next two months Mr Y had all the appropriate support for his needs. Mr X is satisfied with the support the manager provided.
21. Mr Y transferred to a permanent flat in the same complex in April 2019. He is still there and has made good progress.

Complaints procedure

22. On 26 February 2019 Mr X made a complaint to the Council about the way Mr Y’s social worker had handled Mr Y’s discharge. He considered the social worker had considered Mr Y was undeserving of support. As a result he said the social worker had not prepared for Mr Y’s discharge adequately and, ultimately, left Mr Y in a vulnerable position on the day of discharge. Mr X questioned the social worker’s attitude towards Mr Y and the family, saying he had intimidated and bullied them.
23. The Council told Mr X he should get a response within a month. A Council manager, Officer A, responded to the complaint on 25 March 2019. The manager provided some explanations and accepted there had been some failings. She:
• did not accept the social worker considered Mr Y was undeserving of help;
• did not accept the social worker had been intimidating or bullying but apologised if his actions had been perceived like that;
• agreed giving Mr Y cash could have caused problems and other ways should have been investigated to ensure he got the food he needed on discharge. She apologised if it was not clear paying back the cash was voluntary;
• agreed it would have been better for Mr Y’s benefits to have been checked while he was still in hospital;
• agreed the social worker had not updated the family about how Mr Y’s improving mental capacity affected the actions needed on his discharge;
• accepted the social worker had focused on where Mr Y would be living once discharged from hospital and had been slower to anticipate his other needs.
24. Officer A explained how the shortfalls in practice had been explained to the social worker and steps taken to improve the social worker’s practice in future.
25. Mr X was not satisfied with the Council’s response. He said if he was unhappy with the Council’s next response he would contact the Ombudsman. The Council then arranged a meeting to discuss his concerns. The meeting was on
    26 April 2019, between Mr Y, his sister, Officer A and a Council complaints officer.
26. At the start of the meeting Mr X said he had medical issues which made it difficult for him to take notes and remember things. He asked if he could record the meeting but Officer A said that was not appropriate. Officer A sent Mr Y the Council’s minutes of the meeting on 17 May 2019.
27. The minutes said they were not intended to be a word for word record, but a note of the main issues discussed. They included Officer A’s further agreement that the social worker could and should have contacted the family to tell them Mr Y was being discharged. The minutes also said Mr X and his sister had said at the meeting they were happy for the matter to be considered closed.
28. Mr X wrote to the Council again on 23 May 2019. He was not satisfied with the accuracy of the minutes, he considered there were still questions to answer and he denied saying he considered matters closed. The next day he also asked for a more senior officer to review his complaint.
29. Mr X’s major concern with the minutes was the use in one sentence of the term ‘verbal abuse’ when recording discussions about the relationship between Mr Y and his social worker. Mr X was insistent the term ‘verbal abuse’ was never used in the meeting. He says had he recorded the meeting as requested he could prove that. He says the term ‘verbal abuse’ is a much more serious term than those used at the meeting. He says use of the term was upsetting for both Mr Y and the family and could have negatively influenced the professionals working with Mr Y.
30. On 10 June 2019 Officer A replied further. She gave further explanations on some areas. She explained she referred to verbal abuse in recognition of the difficult exchanges between Mr Y and the social worker that were discussed at the meeting. She summarised the findings in her complaint response letter and in the meeting. She passed the complaint correspondence to a more senior officer for review.
31. A more senior officer wrote to Mr Y on 8 July 2019. She said she was sorry the reference to verbal abuse had caused such offence. She explained how the term had come to be used. She investigated two further issues Mr Y raised. She agreed there were areas where the social worker’s practice had fallen short of what was expected. She confirmed again measures had been taken to ensure the social worker and managers concerned learned from the identified failings.
32. Mr X said he still considered some questions were unanswered and wanted a review of whether the complaint had been handled in line with the Council’s complaints procedure.
33. On 24 July 2019 the Council sent its final response to Mr X. Another more senior officer had reviewed the complaints procedure and:
• agreed with its outcome that the service fell short of expected standards in some areas;
• confirmed the Council had apologised for any distress caused and had immediately acted to ensure Mr Y received a high standard of service after his discharge day; and
• assured him the Council was applying all the correct supervision policies to ensure it learned from what had happened and improved.
34. Mr X says, had the Council sent something like the last complaint response at the start of the complaints procedure, or after the meeting in April 2019, he would have been satisfied. He considers he should not have had to go back to the Council repeatedly through the complaints procedure.

Findings

Mr Y’s discharge from hospital

35. The Council arranged suitable accommodation and ongoing support for Mr Y after he left hospital. But the Council was at fault for failing to address some specific practicalities of that plan in time for Mr Y’s discharge. The Council accepts it failed to tell Mr Y’s family of the discharge and failed to ensure Mr Y’s food and money for the day of discharge were covered appropriately. It also accepts it should have checked Mr Y’s benefits before discharge.
36. The Council’s faults contributed to some confusion and distress felt by Mr Y and his family on the day Mr Y left hospital. Mr Y and the family have been happy with the support Mr Y received from the next day onwards so the impact was limited.
37. The Council has apologised for its failings and taken action to ensure the staff involved have learned from what happened to improve service provision in future. The Council’s actions amount to an appropriate remedy and I have no grounds to recommend anything further.

The Council’s complaints procedure.

38. The only statutory time constraint for an adult social care complaints procedure is that it should normally be completed within six months. The Council’s own procedure says it will agree timescales during the procedure. Mr X received his first response within the month the Council agreed. Mr X had continued concerns which the Council addressed over the next four months, through a meeting and four more responses. The Council completed the procedure within five months. Overall, I do not find the Council at fault for delay.
39. The Council did not answer some of the questions Mr X asked. The Ombudsman would expect a complaints procedure to address the main issues but would not necessarily expect a council to answer every question asked during it. In this case the Council did address the main issues of the complaint. It is unlikely any investigation by the Ombudsman would add significantly to the Council’s findings or would lead to a different outcome.
40. One of Mr X’s main concerns about the complaints procedure is he was not allowed to record the meeting held in April 2019. Without any prior agreement for recording, the Council was not at fault to refuse a request for recording made at the start of the meeting.
41. There is a record of the main issues discussed at the meeting because the Council has produced minutes. Mr X disagrees with a sentence in the minutes and says a recording would prove the words used in it were not used in the meeting. The minutes were not meant to be a word for word record. I cannot say whether this sentence would have been included had Mr X recorded the meeting. Use of the term ‘verbal abuse’ has clearly concerned Mr X but I do not see that as significant enough to warrant the Ombudsman investigating its use. There is no evidence use of the term negatively influenced the professionals working with
    Mr Y as Mr X feared it might.

Back to top

Final decision

42. I have now completed my investigation. There was some fault in the way the Council planned Mr Y’s discharge from hospital but the Council has already provided an appropriate remedy. I have not found fault with the way the Council handled the complaints procedure.

Back to top

Investigator's decision on behalf of the Ombudsman