Summary: We do not uphold complaints about poor information about Ms X’s relative’s discharge from hospital or about poor information on charging. The Council explained in its social care assessment why Mr Y would not benefit from rehabilitation and so there is no fault in arranging respite care in a care home. There was a delay in responding to the complaint which was fault causing frustration. The Council will apologise.

The complaint

1. Ms X complained for her relative Mr Y the Council:
1. Failed to give full information about charging for social care and the discharge process;
2. Refused a rehabilitation placement; and
3. Did not properly respond to her complaint and took too long to provide a response.
2. Ms X also complained about Mr Y being discharged from hospital without her permission.
3. She said this caused her avoidable distress time and trouble.

Back to top

The Ombudsman’s role and powers

4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
5. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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)

Back to top

What I have and have not investigated

7. I investigated the complaints in paragraph one in relation to Mr Y’s discharge from hospital in the first week of April 2023. Mr Y had admissions to hospital after this, but I have not investigated complaints about matters relating to discharge for those admissions, because Ms X has not complained to the Council about them. It is reasonable for the Council to have a chance to respond if Ms X complains about later discharge arrangements.
8. I have not investigated the complaint in paragraph two because the hospital was responsible for the decision about Mr X being medically fit for discharge. The Council’s role was around assessing Mr Y’s social care needs and providing services to meet eligible social care needs. The decision about whether or not a patient is well enough to leave hospital is a medical one for the clinicians who were treating Mr Y in hospital. Ms X needs to complain to the hospital.

Back to top

How I considered this complaint

9. I considered the complaint to us, the complaint to the Council and its response. I discussed the complaint with Ms X.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

11. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, section 9)
12. If a council assesses a person needs support, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether they meet any eligibility criteria and sets out how the council is going to meet them. It should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
13. The terms reablement, rehabilitation and intermediate care are often used interchangeably. In this statement I have used rehabilitation. There is also ‘respite care’. These terms are not well understood.
14. Respite care is a term used for services that enable a carer to take a break from their caring role. It can be temporary care in a care home or care in the disabled person’s home to allow their carer to take a break from the caring role.
15. Intermediate care is a structured programme of care provided for a limited time to help a person maintain or regain the ability to live independently. It can be bed-based or community-based. Reablement is a type of intermediate care which has a focus on helping the person regain skills and reducing their needs through providing services in the home. (Care and Support Statutory Guidance (CSSG) Paragraphs 2.12 to14)
16. Intermediate/rehabilitation care is free and councils cannot charge for it. The law allows councils to charge people for respite care in a care home under the charging rules in the Care Act 2014 and most do. They carry out a financial assessment looking at the person’s income and savings.
17. The Mental Capacity Act and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt. (Code of Practice Paragraph 4.34)
18. A person lacks mental capacity to make a decision if they have a temporary or permanent impairment or disturbance of the brain or mind and they cannot make a specific decision because they are unable:
• To understand and retain relevant information or
• Weight that information as part of the decision-making process or
• Communicate the decision (whether by talking using sign language or other means.) (Mental Capacity Act, section 3)
19. Decisions taken by those lacking capacity are made in their best interests. Mental Capacity Act 2005, Principle 4)

What happened

20. Mr Y had a health condition causing confusion and disorientation and was in hospital in February 2023. In the middle of February, the ward referred Mr Y for a social care assessment.
21. The case was allocated to an agency social worker who no longer works at the Council. They visited Mr Y on the ward. The social worker spoke to Mr X about where he would go when he was ready to leave hospital. The social worker concluded Mr X did not have mental capacity to decide on his discharge.
22. The Council has provided a document called a Hospital Discharge Plan (HDP.) This is a social care assessment of Mr Y’s care and support needs and a care and support plan describing his needs and who would provide care and support. The HDP noted:
• Mr Y needed to be able to climb a set of steps to get into his home;
• He had been assessed by a physiotherapist and there were no therapy goals as he could mobilise independently; and
• He had eligible care needs in six areas and he needed residential care in a specialist mental health care home to meet those needs.
23. I have summarised the discussions and emails between the social worker and Ms X below and the actions the social worker took after the discussions.

16 February: They spoke about Mr Y returning home and Ms X felt he was not strong enough to do so because of the home’s stairs. (Ms X told me she said Mr Y didn’t have the required flexibility in his legs to step up)

21 February: There was a meeting with the family. They felt Mr X needed respite care to build his strength.

The social worker started making enquiries with care homes with a view to Mr X getting respite care. There had been some issues with Mr Y being aggressive on the ward (connected to his health condition.)

23 March: Ms X was unhappy with the lack of contact from the social worker. She asked the social worker not to visit her father unless she was present.

End of March: The social worker emailed a copy of the HDP to a care home. The care home did its own assessment of Mr Y and confirmed it could meet his needs. It confirmed the cost.

31 March to 3 April: The social worker noted she had made five calls to Ms X and left a message asking her to call the social worker back. She emailed Ms X with details of the care home and said the finance team would discuss any queries about cost. (Ms X told me the social worker rang her father’s number and this is why no-one answered)

4 April: The care home confirmed it could accept Mr Y. The social worker tried to phone Ms X, without success. The social worker emailed Ms X with the details and said it was urgent as the ward wanted Mr Y to be transferred. The social worker spoke to the ward manager and asked the ward manager to liaise with Ms X. The social worker confirmed the Council had agreed funding. The ward manager spoke to Ms X and reported she was not happy. The social worker and Ms Y spoke and she said Mr Y should be eligible for a reablement package of care because this was the recommendation of his doctor in the community

24. The social worker completed a document called a ‘Best Interests’ decision. This set out the alternatives: returning home or a care home. The document also set out a summary of the discussions the social worker had with Ms X about her father’s discharge.
25. One of the managers from the adult social care team became involved and confirmed that Mr Y did not need rehabilitation care, but a care home. She explained in emails and calls to Ms X and her sister that:
• The decision about social care was the Council’s and not the medical team’s;
• The Council’s policy was to charge for residential respite care;
• Mr Y was not suitable for rehabilitation as he had no rehabilitation goals and it would not be appropriate given his current level of confusion; and
• If his confusion resolved, then the Council would consider a return home and liaise with therapy regarding getting in and out of the home.
26. Mr Y was discharged to the care home on 4 April and after an incident in the home, was readmitted to hospital after one night. His case was reallocated to another social worker.
27. On 5 April, the social worker spoke to the therapy team on the ward. That team confirmed that Mr Y was independent in mobilising and active and no specific programme of exercises was needed.
28. Ms X complained to the Council on 6 April raising the same issues as in her complaint to us.
29. The Council responded on 18 August. In summary, it said:
• The Council was sorry about the social worker’s conduct. She was an agency worker and no longer worked at the Council;
• The evidence indicated the hospital didn’t recommend a rehabilitation placement. This wasn’t appropriate because of Mr Y’s confusion. The hospital insisted the discharge took place on 4 April and the ward took the lead;
• It accepted the discussion about discharge dates and destination with the family took place very late; and
• The social worker and manager did explain respite care was chargeable. The notes indicate Ms X was told about the charging policy.
30. Ms X told me the family agreed Mr Y could not go back to his home from hospital, but they didn’t agree with the placement being respite as the NHS said he required rehabilitation.

Findings

The Council failed to give full information about charging for social care and the discharge process

31. I do not uphold this complaint because:
• The Council accepts in its complaint response that Mr Y’s family only received information about the discharge date very late in the day. However, this was not the Council’s fault: records indicate the hospital was pressing for discharge on 4 April. The social worker tried to contact Ms X by phone in the week before Mr Y’s discharge, albeit on occasion on Mr Y’s phone. Emails indicate Ms X was made aware of the details of the vacancy in the care home. This was all last minute from the family’s perspective, but this is not always avoidable: people do not have a legal right to remain in a hospital bed when they do not need hospital treatment and often discharge plans and destinations are confirmed at the last minute without any fault as is the case here.
• The evidence indicates Ms X was made aware in emails and conversations that the care home was chargeable. She received information from other sources about rehabilitation care which is free. But the Council explained why Mr Y was not suitable for this. There is no fault.

The Council refused a rehabilitation placement

32. The assessment of Mr Y’s social care needs in the HDP noted he did not have any rehabilitation goals as he was independently mobile on the ward and would not benefit from therapy due to his confusion.
33. The family had been advised by a clinician that Mr Y needed rehabilitation. However, the decision about rehabilitation placements is a social care decision for the Council. The Council has evidenced in its social care assessment and explained to the family why Mr Y was not suitable for rehabilitation and so there is no fault.

The Council did not properly respond to her complaint and took too long to provide a response.

34. The complaint response addressed the issues in appropriate detail and was a good response. The Council took too long to respond though (four months). This delay was fault causing avoidable frustration.

Back to top

Agreed action

35. The Council will, within one month of my final decision, apologise for the frustration caused by the delay in responding to Ms X’s complaint.
36. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

37. I do not uphold Ms X’s complaints about poor information about her relative’s discharge from hospital and about information on charging. The Council explained in its social care assessment why Mr Y would not benefit from rehabilitation and so there is no fault in arranging respite care in a care home. There was a delay in responding to the complaint which was fault causing frustration. The Council will apologise.
38. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman