Summary: Ms C complained about the way the Council handled her mother’s discharge from hospital, which resulted in distress to herself. We found fault with regards to the actions of the Council, for which it has agreed to apologise.

The complaint

1. The complainant, whom I shall call Ms C, complained to us on behalf of herself and her mother, whom I shall call Mrs M. She complained that:
• The Council failed to agree to move Mrs M into the care home the family preferred (care home B) until their MP got involved.
• The officers involved from the Council failed to effectively communicate with the family throughout. They failed to explain the discharge process in a comprehensive and timely manner and failed to explain its decisions.
• The Council has still not confirmed that Mrs M will not have to pay any care home fees from the time she went into hospital in September 2021.
2. Ms C says this resulted in an unreasonable delay of Mrs M remaining in hospital and distress to Mrs M and her family.

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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 considered the information I received from Ms C and the Council. I shared a copy of my draft decision statement with Ms C and the Council and considered any comments I received, before I made my final decision.

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What I found

Relevant legislation and guidance

6. The Council said it was following the North West London Discharge to Assess (D2A) protocol in operation at the time. This was aimed at discharging people, who are clinically safe to be discharged, from hospital as soon as possible. It meant placements were sourced on an immediate interim basis. As such a person would be moved to the first available bed and their preferred placement would only be considered after this move. All patients were subject to the same discharge arrangements. The protocol states that:
• Hospital social workers will issue a placement request to the Placements Team on “Care Place”.
• The Placements Team will put the request out to care home providers. This e-referral will state this is an urgent discharge case requiring a pre-admission assessment within 24-hours.
• The referral is then reviewed by all care providers in the area, who will contact the Council if they feel they are able to potentially meet the needs of the client, subject to an assessment. The Council will ask suitable providers to complete an assessment within 24-hours. For D2A purposes one care home option is permissible for a placement to proceed
7. A council should not ‘fetter its discretion’. This means it should consider, when needed. if there are circumstances that justify departing from usual policy to prevent injustice.

What happened

8. Mrs M is in her 70s and has dementia. She went into the residential care unit at care home A in February 2020 but had to go into hospital mid-September 2021, after a fall. During the first few days, the hospital kept Mrs M for observation and further assessments.
9. The Council allocated Mrs M’s case for a review on 24 September 2021. The social worker asked Ms C’s brother for a suitable date to attend the review.
10. The deputy manager of care home A came to do an assessment of Mrs M in hospital. According to the care home, this happened on 27 September 2021. The outcome of the assessment was that Mrs M’s needs had changed and the hospital would refer her for nursing funding/placement.
11. However, Mrs M tested positive for Covid-19 and had to be transferred to the infectious disease ward the next day. By the time Mrs M no longer tested positive for Covid and was ready to be discharged, care home A did not have any nursing beds available anymore. This meant Mrs M had to move to another care home and the Council would have to follow the D2A protocol. As such, the Council allocated the case to a social worker on 11 October 2021, who made a placement request to the Council’s Placements Team two days later.
12. Ms C told me that, when she became aware that care home A was no longer an option, she immediately told the Council that her mother and her family would want her to go to care home B. She told the Council care home B was a nursing home with vacancies who were willing to accept her, subject to an assessment.
13. The Council put Mrs M’s case on its Care Place system on 13 October 2021. According to the records, Ms C first asked the social worker to consider care home B on 15 October 2021. In response, the Council explained the Discharge to Assess pathway to the family by email and a phone call. It said that Mrs M would be discharged to the first care home who would respond to her referral via Care Place and would be able to meet her needs. The Council would then review her care and support needs after four weeks, at which point there could be a discussion about her choice and moving to care home B. However, Ms C and her brother were not happy with this and asked the Council to discharge their mother to home B immediately.
14. Ms C repeatedly told the Council that a discharge to care home B would be much better than moving her, a dementia patient, twice during a short period of time. However, she said the Council failed to consider and pursue this option.
15. Care home C responded via Care Place and told the Council on 15 October that it could provide a nursing bed to Mrs M. As such, the Council pursued this option in accordance with the D2A protocol. However, care home C withdrew its offer on 19 October. There were several other homes the Council approached through Care Place between then and 4 November, without success.
16. The manager involved with the discharge (hereafter referred to as ‘the manager’), told Ms C on 20 October 2021 that the Council could not work outside the protocol, which was that a temporary care home must be sourced via the placement team. The manager said it had found another care home that it would ask to assess Mrs M.
17. Ms C responded the following day saying home B was still waiting for the manager’s approval to assess her mother. She asked the manager to “please have empathy and consider this outside of the normal process”. She said her mother was vulnerable, had dementia and needed a place that was easy to get to for family and friends.
18. The manager checked the cost of a nursing bed at care home B and indicated to Ms C on 22 October 2021 by email that it would be willing to consider a move to care home B, if the family would be willing to pay a ‘top up fee’.
19. Ms C told me the family asked the Council to explain what top ups meant, and why they would be needed. However, she said it failed to do this.
20. The records show the manager explained on 22 October in an email that a top up fee was the difference between the cost of the home found by the Council and a home found by the family. The manager explained that: “When a care home has been identified that meets the needs of a client, but the client or third party (the family) want another home., the third party can be assessed to pay the difference between the two homes. This will be an ongoing arrangement (…) Is this something the family would be willing to consider?”
21. The Council continued to try and find a home via its protocol. As such, Ms C decided to contact her mother’s local MP on 25 October 2021. She explained to the MP that the owners of home B had been her mother’s friends for decades and their home was two minutes away from the family home. They had a nursing bed vacancy, and this home would enable her mother to remain within familiar surroundings and her well-established local network. The MP’s office subsequently made some enquiries with the Council to ask if a one stop move to home B would be possible.
22. The Council continued to pursue a placement for Mrs M via its Placement Team. The Placement Team emailed the social worker on 4 November 2021 that it had identified a home who would come to assess that day. However, it also said that home B said they would assess within 24 hours.
23. The Council said:
• Care home B became an option once it accepted Mrs M’s referral on Care Place, not because the MP became involved.
• It explained to the family that the fees at home B (£748 per week) were above the Council’s banding (£728 per week) and that a 3rd party contribution of £20 per week would need to be made. However, the Council managed to negotiate a fee closer to the Council banding and a 3rd party contribution has not been necessary as a result.

Analysis

24. The Council explained the standard discharge protocol to the family that it would have to follow.
25. The records show the Council said on 22 October 2021 that it would be willing to consider a move to care home B if the family would be willing to pay a top up. However, the family did not confirm that it would be willing to do so. The Council explained what ‘top up’ meant, but apparently not in a manner which the family fully understood. It also did not specify to the family at the time what the top up fee would be in this case, namely £20 a week. This information would have helped the family to make a decision. Ms C told me the family would have accepted £20 as a top fee, which would have enabled her mother to have moved to care home B around ten days sooner.
26. Mrs M moved to care home B two weeks later. This happened because the Council decided on 4 November 2021 to allow care home B as an option, even though this went outside the standard protocol. I am unable to conclude to what extent the involvement of the MP made a difference.
27. In the end, the family did not need to pay a top up as the Council was able to negotiate a lower fee for Mrs M.

Ms C’s complaint about the care home fees after 24 September 2021

28. Ms C complained the Council continued to charge her mother for her residential care bed / room, even though her mother was in hospital, and it was clear she could not return to that bed / room.
29. The deputy manager of care home A came to do an assessment of Mrs M in hospital. According to the care home, this happened on 27 September 2021. The outcome of the assessment was that Mrs M’s needs had changed and the hospital would refer her for nursing funding/placement.
30. This meant that Mrs M could not return to her residential care bed / room as she now needed a nursing bed.
31. Ms C said care home A moved her mother’s belongings out of her room into a separate storage. She said her brother collected these shortly after the family were told Mrs M could not return, which was either on 16 or 17 October. The care home has since said it did not move Mrs M’s belongings out of her room.
32. The Council only looked into this in March 2022. It told the family that care home A told them the room was only vacated on 15 November 2021. This meant it could only offer the room to a new resident from that moment onwards.

Analysis

33. Care home A found out on 27 September 2021 that Mrs M could not return to her residential care bed, because she would need a nursing bed now. As such, her residential care bed should not have been kept open after that day. Keeping the bed open beyond 27 September 2021 resulted in additional costs to Mrs M as she had to continue to pay for her bed/room.
34. There was an unreasonable delay by the Council in dealing with this issue, which resulted in distress to Ms C.

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Agreed action

35. I recommended the Council should, within four weeks of my decision:
• Apologise to Ms C and her mother for the faults identified above and any distress they caused them.
• Reimburse (or deduct from any outstanding fees) any costs Mrs M’s paid towards the cost of her residential care bed in care home A after 27 September 2021.

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Final decision

36. For reasons explained above, there was some fault with the actions of the Council, as a result of which I have upheld Ms C’s complaint.

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Investigator's decision on behalf of the Ombudsman