Summary: Mrs B complained about the action the Council when her mother Mrs C was discharged from hospital and needed care. We found the Council at fault for failing to communicate with the family when Mrs C went into hospital, for failing to give clear and complete information about who would pay for the care and for delaying in carrying out a reassessment. But we consider the Council’s actions in apologising and commissioning the care for 33 weeks is a reasonable way of putting matters right.

The complaint

1. Mrs B complained that Essex County Council (the Council) failed to follow the Care Act 2014 and its own charging policy in respect of assessing and meeting her mum, Mrs C’s care and support needs: Specifically it:
• failed to answer emails or telephone calls from the family in February 2021 when Mrs C went into hospital, causing the family to arrange and pay for respite care in a care home (the Home) for Mrs C;
• misled the family that it would pay for four weeks of care from 4 March 2021 to carry out a reassessment and failed to properly communicate the financial arrangements for Mrs C’s care at the home.
• misadvised them that the brokerage team could help them find and commission cheaper care.
• failed to carry out the reassessment as promised in March 2021 to assess Mrs C’s long-term care needs.
2. Mrs C and Mrs B have been caused distress, worry and time and trouble in trying to clarify who was commissioning and paying for Mrs C’s care.

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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. If we are satisfied with an organisation’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)

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How I considered this complaint

5. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided.

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What I found

Hospital discharge policy (from August 2020)

6. The discharge arrangements for patients were changed in 2020 in response to the COVID-19 pandemic. Previously councils were involved in the discharge process with a social worker carrying out an assessment while the person was still in hospital. In response to the pandemic, hospitals were required to discharge patients (as soon as it was clinically safe to do so) to an alternative setting in order to assess their longer term needs. This was known as ‘Discharge to Assess’ and the place would be funded for a period of up to four weeks.

The Care Act 2014

Arranging care

7. A person with assets above the upper capital limit of £23,250 is responsible for the full cost of their care in a care home. They can ask the council to arrange their care and support for them. Where the person’s needs are to be met by care in a care home, the council may choose to meet those needs and arrange the care but it is not required to do so.

Intermediate care and Reablement

8. Intermediate care and reablement support services can be provided to people who have been discharged from hospital to help them regain the ability to live independently at home. This type of care can be provided without charge for up to six weeks.

Information and advice

9. Councils must provide information about the choices open to individuals and must explain a person’s rights under the Care Act. This must include advice and information to help people understand the charges so that they can make informed financial decisions.

What happened

10. Mrs C was living at home after her husband had died of COVID while in hospital in January 2021. She started to struggle with mental and physical issues. The Council allocated Mrs C a social worker (SW) who carried out an assessment in February 2021 and put in a care package (two visits a day) from 8 February 2021. SW agreed to do a review in four to six weeks’ time.
11. On 18 February 2021 Mrs C went into hospital due to a deterioration in her condition. Mrs C’s other daughter, Mrs D tried to contact SW by phone and email but was unsuccessful. She did not receive any ‘out-of-office’ messages saying SW was unavailable. Mrs D also rang the social work team number and was told to wait for SW to return her call.
12. SW rang back on 20 February 2021 and left a message. SW received an email from Mrs C’ other daughter (Mrs B) saying Mrs C had been discharged from hospital the previous afternoon. As she needed a walking frame and assistance from one person to walk, she could not go home so the family decided to pay for respite care at the Home. Mrs B asked for advice on the next steps. She said

“Mum is clearly unable to stay home alone now that dad has died; I think we quite urgently need some level of nursing care or residential care for her – please advise how we can get this?”

13. SW replied straightaway. She apologised for the lack of response, but she had been on leave. She said the email was not in her inbox. She said the team member should have dealt with her enquiry.
14. SW spoke to Mrs B and Mrs D about Mrs C’s care needs. She also assessed Mrs C’s capacity by telephone. They discussed the possibility of sheltered accommodation, the financial assessment process ‘and the possibility of Mrs C having to pay the full cost of her care due to owning her own home’. SW made enquiries about sheltered accommodation.
15. SW concluded that Mrs C had capacity to make decisions about her care and wishes to stay in the Home. SW said:

“I will request a continuation of another 4 weeks at [the Home] for [Mrs C] whilst we look at other options such as sheltered housing. We can spend this time ensuring we identify what is best for her for the long term….[Mrs C] understands that she would not be able to manage her care needs without support and that is why I feel that it is unsafe for her to return home at this time.”

16. The case records show that on 27 February 2021 SW said in a telephone call to Mrs B and Mrs D that:

“… it is still felt that [Mrs C] has residential needs going forward. The family advised that they are unsure what the recommendation was from the hospital (either care agency at home or resi placement). I have asked them to confirm as they are questioning the funding stream. I have advised that our service is means tested and the financial assessment will determine what [Mrs C’s] contribution will be going forwards as I am recommending an additional 4 weeks which is yet to be agreed by management.”

17. Mrs D sent an email to SW summarising how Mrs C had ended up in the Home. She accepted that SW was not involved in the discharge although she was unhappy at the poor communication. The hospital had assessed Mrs C and concluded she couldn’t go home. Mrs D said because of their experience with their dad (he contracted COVID in hospital and died) they were anxious to get Mrs C out of the hospital. So, they arranged respite care at their cost and the hospital accepted it as a discharge plan. The family did not know what to do, but thought because SW had arranged the domiciliary care, they thought she would have to be involved to increase it.
18. SW replied explaining that when someone is in hospital and the family arranges private care, the hospital would not suggest an alternative as they consider the patient’s needs are being met. SW said she and the family had decided that Mrs C should remain in residential care for the time being due to safety and an inability to care for herself. SW agreed to review the situation in four weeks’ time. In the meantime, she would request an additional four weeks from the management team. She apologised for the poor communication when Mrs C went into hospital.
19. Mrs D disputed that the family arranged private care. She said they had no alternative because they couldn’t contact the discharge team or SW.
20. SW also explained that the Council would do a financial assessment to determine Mrs C’s contribution. SW’s manager approved the four weeks to complete a further assessment including occupational therapy support to identify whether Mrs C could return home or to sheltered accommodation. SW informed Mrs B and again said the placement would be financially assessed.
21. On 6 March 2021 the Council did a financial assessment and concluded that Mrs C would have to pay the full cost for domiciliary care at home and the respite care at the Home.
22. Mrs D queried whether the Council would be doing a long-term assessment of Mrs C’s needs. She stressed that Mrs C could not go home.
23. SW questioned what the family didn’t understand about the assessment. She agreed Mrs C needed a higher level of support hence the extra four weeks. But she said that self-funders source their own placements. She directed the family to the brokerage team for help with this. Mrs D replied saying she was unhappy with the assessment as it was not holistic, and they were not able to make a decision about long-term needs. Mrs C said:

“you are saying that mum needs a high level of care, you recommended residential support to deliver that and yet you say that mum needs to pay for her care herself. It seems to me that those two things are contradictory?”

24. On 15 March 2021 SW met with Mrs B and Mrs D. They still felt Mrs C could not manage at home but said the brokerage team had only provided a list of homes they could approach because she was self-funding. Mrs D again complained that Mrs C was paying £250 more a week for the place at the Home than the rate the Council could have obtained if it had commissioned the care.
25. In May 2021 Mrs D contacted SW to complain that Mrs C was liable for the four weeks care arranged by SW. She said SW had said the Council would fund these four weeks, whereas it had only paid for one day. Mrs C was now in arrears with the Home.
26. SW replied at the beginning of June 2021. She said the Council had agreed to arrange the further four weeks placement but this was always subject to the financial assessment. Once Mrs C was assessed as having assets above the capital limit, she had to pay the full cost of her care.
27. Mrs B and Mrs D made a formal complaint about several issues to do with Mrs C including the lack of funding for the four weeks of care arranged by the Council. They expected to pay once the financial assessment had been done but they did not realise the Council had only paid for one day. They also complained that SW had not done a reassessment and the brokerage team were no help. only paid for
28. The Council responded to the complaint. It apologised for the lack of communication from SW when Mrs C went into hospital and the failure to carry out a reassessment, which it said was fault. It offered to commission a temporary placement at the Home from 3 April until 26 July 2021. Mrs C would be liable for the full cost but it would be at a lower rate (approximately £250 less per week).
29. SW completed the reassessment in August 2021. There were no changes as the current placement was working well.
30. By October 2021 Mrs C owed over £11,000 to the Council. The family were confused over who should be paying. SW sent them a copy of the reassessment done in August. They confirmed the current placement was meeting Mrs C’s needs, the placement was means-tested and Mrs C was liable for the full cost following the financial assessment. The Council apologised for the delay in sending the reassessment to them and agreed to extend the commissioned care until 22 October 2021. After this date the family would be responsible for the placement.
31. In November 2021 SW closed the case. Mrs B complained to us.
32. In response to my enquiries the Council said that if the hospital had notified the Council of Mrs C’s discharge, it would have advised the family that the ward would refer Mrs C to the Council’s service placement team and they would find a non-means-tested placement for up to six weeks. The placement would have been sourced from the Council’s contracted beds and would have greatly reduced the choice and control over the care home. Once discharged the Council would have carried out an assessment.

Analysis

Poor communication

33. I agree the Council was at fault in February 2021 for its poor communication with Mrs C’s family when they needed advice at a stressful time. The SW should have had an out of office message to alert the family that she was not available and another worker within the team should have responded to the enquiry. The Council has apologised for this fault.
34. However, at that time the hospital was responsible for Mrs C’s discharge and did not inform the Council or advise the family of their options. Given the lack of information and their desire to remove Mrs C from the hospital as quickly as possible due to the COVID risk, the family paid privately for a four week stay at the Home. I consider if the Council had responded to the initial telephone calls or emails more promptly, they may have been able to contact the hospital discharge team. However, any intervention would have been limited because it was for the hospital to arrange the subsequent care options. The family arranged a private place very quickly (within a day of Mrs C’s admission) and it is unlikely an alternative could have been arranged within that time-frame.

Four weeks of care

35. I consider the SW was unclear about who would pay for the care, when she said at the end of February 2021, that the Council would arrange four weeks’ care at the Home. There is evidence in the case notes that she said the placement would be means-tested and Mrs C would be financially assessed, but she did not clarify on what basis the further four weeks was arranged. This was fault. The information should have been presented clearly to the family. I can understand it was a shock for the family when they realised the Council had only paid for one day’s care before the financial assessment was done.

Brokerage

36. Because of the piecemeal way Mrs C’s care had been arranged, the family did not understand how the system should have worked. They complained about the lack of help from the brokerage team. But the Care Act only requires a council to source and commission a care home if the council is paying for the care. In the case of a self-funding person the council does not have to do this. So, I have not found fault with the actions of the brokerage team. However, I do think SW’s advice that brokerage could help the family find a care home was misleading and led to frustration.

Reassessment

37. The Council accepted it was at fault for not carrying out the reassessment as promised in March 2021. I agree this was fault. As recompense it offered to commission the care for Mrs C at the Home at a cheaper rate than she was paying privately, from April until July 2021. The Council also agreed it was at fault for not sending the family a copy of the reassessment completed in August 2021 until October 2021 and agreed to continue to commission the placement until 22 October 2021.

Injustice

38. I accept Mrs B and Mrs D were caused some uncertainty and frustration by the poor communication and delays during the process. I also accept Mrs C possibly missed out on a period of non-means-tested care when she was discharged from hospital.
39. However, the Council commissioned the care for Mrs C for a total of 33 weeks, from 5 March 2021 until 22 October 2021, saving Mrs C approximately £8,500. I consider this, along with the apologies, makes up for the injustice caused and I do not consider any further remedy is necessary.

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Final decision

40. I have completed my investigation into this complaint as I consider the Council’s apology and the fact it has commissioned the placement at the Home for 33 weeks, are sufficient to put right the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman