Summary: Mr F complained on behalf of his mother, Mrs J, that the Council failed to take action after she was discharged from hospital in May 2023. As a result she was left needing residential care. Mr F also complained that the Council’s financial assessment did not take all his mother’s costs into account. We found some fault by the Council in the way it dealt with matters but this did not cause injustice to Mrs J.

The complaint

1. Mr F complained on behalf of his mother, Mrs J, that the Council failed to take action after she was discharged from hospital in May 2023. As a result she was unable to return home after reablement and has been left needing residential care, causing her a financial loss. Mr F also complained that the Council’s financial assessment did not take all his mother’s costs into account so she is contributing too much to the cost of her care.

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The Ombudsman’s role and powers

2. 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)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the NHS. (Local Government Act 1974, sections 25 and 34(1), as amended)
5. We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by:
• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), 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)

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How I considered this complaint

7. I spoke to Mr F about his complaint and considered the information he sent, the Council’s response to my enquiries, and:
• The Care Act 2014 (“the Act”)
• The Care and Support Statutory Guidance 2014 (“the Guidance”)
8. Mr F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Discharge from hospital

9. The NHS must issue a notice to the council where it considers a patient being discharged from hospital may need care and support. The council must then assess the person’s care and support needs.
10. The “Discharge to Assess” (D2A) approach involves providing short-term care, rehabilitation and reablement, where needed, and then assessing people’s longer-term needs for care and support once they’ve reached a point of optimal recovery. Intermediate care and reablement support services are time-limited and aim to help a person to preserve or regain the ability to live independently. This support may be in people’s homes, in a care home or using ‘step-down’ beds. In Derbyshire there are community support beds available to enable people to be assessed. They are usually for people whose stay is likely to be less than 14 days.
11. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Care and Support (Preventing Needs for Care and Support) Regulations 2014)

Care and support

12. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
13. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.
14. A person with care and support needs may be able to have minor adaptations to their home, such as grab rails. These are usually provided free of charge after an occupational therapist has assessed what adaptations are needed.

Charging for care and support

15. Where a council arranges care and support to meet a person’s needs, it may charge the adult for the cost of the care.
16. Councils must assess the means of people who have less than the upper capital limit (£23,250), to decide how much they can contribute towards the cost of their care. In assessing what a person can afford to pay, a council must take into account their income, such as pensions or benefits.

Charging for temporary residential care

17. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, or there is doubt a permanent admission is required. The person’s stay should be unlikely to exceed 52 weeks.
18. The Guidance says because a temporary resident is expected to return home their main or only home is usually disregarded in the assessment of whether and what they can afford to pay. In addition, certain housing-related costs may also be disregarded in the financial assessment. These may include fixed payments (like mortgages, rent and Council Tax), building insurance, utility costs (gas, electricity and water, including basic heating during the winter) and reasonable property maintenance costs.
19. A council may charge a temporary resident as though they were receiving care and support at home. People receiving care and support other than in a care home need to keep a certain level of income to cover their living costs. After charging, a person’s income must not reduce below a weekly amount, known as the minimum income guarantee, which is set by the government.

Mental capacity

20. The law says a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. If a person’s capacity is in doubt their ability to make a decision must be assessed.
21. Any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The Mental Capacity Act 2005 sets out the steps that decision makers must follow to determine what is in a person’s best interests.

What happened

Up to July 2023

22. Mrs J is in her 80s and was living in a two-story property rented from a housing association. She had been admitted to hospital in 2023 following a fall which had caused a brain injury. In May, the hospital told the Council that Mrs J was medically fit for discharge but would require care and support.
23. A social worker visited Mrs J and had no doubts about her capacity to make decisions about her care and support. Mrs J wanted to go home but knew she would need support. The case record says “a possible placement in a community support bed would be appropriate”.
24. There was a discharge meeting on 23 May with Mrs J, Mr F and Mrs J’s daughter (Ms G). The records from this show that Mrs J had not met the criteria for neurological rehabilitation. The option of a short-term care placement in a supported living complex was discussed; the meeting note says the NHS Trust would arrange this.
25. The discharge plan that was made says Mrs J would require help with personal care, meals and medication. She wanted to go home eventually but had asked if she could access 24-hour care initially due to her care needs and a lack of confidence about being at home alone. It was therefore agreed that she would have a short-term placement in a care home. The case records say this would be for “recuperation and convalescence” and “the likelihood” was Mrs J would go home following review. Short-term Discharge to Assess funding and longer-term funding were discussed.
26. I have seen no evidence that referrals were made for reablement services, a community support bed or supported living.
27. Mrs J moved into a nursing home (“the Home”) on 7 June. Ms G spoke to the social worker a couple of weeks later. She did not consider the Home was suitable but was concerned that Mrs J was not ready to go home due to her risk of falling, lack of stimulation and isolation at home and that she would not be able to manage the step into the property. Ms G asked about supported living and an extra care placement. There were waiting lists for these. The social worker spoke to the Home’s manager who also expressed doubts about Mrs J’s ability to go home.
28. The social worker visited Mrs J on 26 June to assess her care and support needs. The assessment says Mrs J would require support but had no overnight needs. Once home, she could be referred for speech and language therapy and community cognitive therapy. Mrs J said she would like to go home at some point but felt she was not ready yet. There were access issues with her property and the possibility of moving to a bungalow was discussed. It was agreed that Mrs J should visit her home as a trial with an occupational therapist (OT).
29. As the four-week Discharge to Assess funding was due to end on 5 July, Ms G asked about funding care in the future. The Council said Mrs J would be charged as a temporary resident. She would need to pay a contribution and a financial assessment would consider her income and her housing-related outgoings.
30. The Council asked a brain injury OT to visit Mrs J’s home with her. The OT service said there was a six-week wait for that service, but a rapid-response OT could attend.
31. Mrs J visited her home on 7 July. It was noted that her stairlift was faulty. The OT considered that Mrs J would be able to go home if she lived downstairs only and some minor adaptations were made (removing and changing internal doors, repairing the exterior ramp).
32. Ms G spoke to the social worker. She was concerned that Mrs J had just gone along with the OT’s suggestions and had been confused after the visit. Ms G said Mrs J could not use the stairs and did not want to live downstairs only. She disagreed with the OT’s view that Mrs J could go home with adaptations. She had contacted the housing association about moving to a bungalow. The housing association had advised it would need to make any adaptations following a request from the OT or Council.
33. The brain injury OT told the Council Mrs J had no identified need for their service. They would check whether the hospital had made a referral for cognitive rehabilitation.
34. The social worker discussed the outcome of her assessment with Ms G on 12 July. The case record says she had found there were barriers to Mrs J returning home due to her anxiety about managing and not feeling safe, not wanting to live downstairs and the adaptations needed. The social worker had looked for alternative care homes but none were available. Mrs J would therefore need to remain in the Home but the long-term aim would be for her to move to a bungalow. The Council would refer to the OT service to help with Mrs J’s move to a bungalow and pass Mrs J’s case to the long-term social care team. I have not seen this completed assessment or evidence that these findings were discussed with Mrs J.
35. The social worker told the OT that Mrs J had no current plan to return home but wanted an assisted move to a bungalow with OT support. Therefore the OT service did not request the minor adaptations to Mrs J’s property.

Care and support assessment July to August 2023

36. A new long-term social worker spoke to Ms G on 20 July. She was unhappy that the Council had not assessed Mrs J or put care in place until after Mrs J had been in the Home for four weeks. She said they had complained from the start that the Home was not suitable and that Mrs J did not want to stay there whilst awaiting adaptations. The social worker said he would assess Mrs J’s long-term care and support needs and work with OT to assess adaptations once a bungalow was available. He contacted the housing association which said that once Mrs J’s application for a bungalow had been processed it would contact Ms G.
37. Ms G had to re-apply to the housing association for a bungalow as there had been a problem with the supporting documents.
38. The social worker and OT visited Mrs J in the Home on 10 August. She said she wanted to go home but was concerned about falling and being able to cope. On 17 August, Mrs J, the social worker, OT, Ms G and Mr F visited her home. Various adaptations were suggested: changing the downstairs toilet door and installing a grab rail; moving the fridge; putting a bed into the dining room and installing a rail outside. The social worker asked the housing association to make these adaptations on 22 August.
39. The completed assessment sets out the care and support Mrs J would require when she returned home. It said the OT had recommended downstairs living, a bed had been ordered and the housing association would make adaptations. A commode had also been ordered due to the adaptations needed to the downstairs toilet. The social worker noted that Mrs J would benefit from dementia reablement but this was not available. The Council started to look for a homecare agency. Mrs J then went on a family holiday and I have not seen evidence that the outcome of the assessment was discussed with her.
40. A financial assessment was completed. This had taken into account Mrs J’s income and outgoings, including allowing £11.28 per week for housing-related expenditure. It found Mrs J should contribute £161.52 per week to the cost of her care from 5 July 2023.

Home adaptations Autumn 2023

41. In September, Ms G raised concerns with the Council that Mrs J’s behaviour and condition had deteriorated. She said Mrs J would not be able to move home until the adaptations had been completed, but there were problems with them. No request had been made for an external handrail or to change the internal doors. The housing association was unsure if the downstairs toilet door could be moved and the grab rail could not be fitted. The bed did not fit in the dining area and the stairlift was faulty.
42. The social worker replied on 19 September that it would therefore not be possible for Mrs J to return home. He would complete an assessment for long term care needs and consider if a mental capacity assessment was needed. I have not seen evidence that the social worker visited Mrs J after this.
43. Ms G spoke to the OT. It was noted that the housing association was not prepared to install an external handrail as Mrs J would not be going out alone and would use a rollator. Ms G told the social worker that the OT had thought sheltered housing was the best option as the house could not be suitably adapted.
44. The OT spoke to the social worker. The case record says the OT considered the Home was not the right environment and that Mrs J needed a residential care home. An NHS primary care nurse practitioner had assessed Mrs J. She told the social worker she could not comment on whether Mrs J was able to return home and she had not had the capacity to discuss advanced care planning earlier that year. The brain injury OT visited Mrs J and found she was unsure whether she wanted to go home.
45. On 9 October the housing association asked the Council if it could cancel the minor adaptations requested as there had been an application to move to a bungalow.
46. Ms G told the social worker that there was a delay by the housing association in processing the application for a bungalow. It had requested access to do some of the adaptations but Ms G was unsure if these were necessary as the others could not be done and there was “no mobility access with the bed and Zimmer frame in the living area”. She said Mrs J did not want the bed to be in the living room and did not want to use a commode. Ms G also raised concerns that Mrs J could not afford to pay for the care in the Home as well as for her own home.
47. The social worker responded that the nurse practitioner had had no major concerns about Mrs J’s physical or mental health for any return home, the brain injury OT had said Mrs J wished to stay in the Home, they had no reason to question Mrs J’s mental capacity and the professionals involved did not feel Mrs J needed to be in a care home setting. The social worker made a referral for an independent advocate for Mrs J. A memory assessment of Mrs J had found she had moderate cognitive impairment.
48. There was a multi-disciplinary professionals meeting in October. The social worker advised that Ms G had disagreed with the OT’s assessment in July and had continued to raise further concerns about Mrs J going home and the financial contributions. The social worker said Mrs J had not been assessed as requiring 24-hour care and there were no doubts about her capacity. The meeting concluded that Mrs J should return home as soon as possible and could use a commode.
49. Ms G remained concerned about this. On 27 October she said the mental health consultant had found Mrs J to be frail and had implied she required 24-hour care. Ms G said Mrs J was increasingly confused, worried about going home, had had several falls, had some continence problems and did not want to use a commode. An application for supported living was being processed. Mrs J remained in the Home.

Mr F’s complaint

50. Mr F had complained to the Council on 5 October that Mrs J was still in the Home. He also complained about the social worker’s attitude and that the financial assessment had not taken all of Mrs J’s expenditure into account.
51. The Council replied on 2 November. It apologised for the social worker’s attitude. The Council said the social worker had collated information from other professionals to help complete a care and support assessment. The plan would either be for Mrs J to remain in a care home or for her to return home with homecare. She could also consider applying for sheltered housing once she was living independently and back in the community. It did not respond in relation to the financial assessment.
52. In January 2024, a best interest decision was taken that Mrs J should remain in a care home.

My findings

Discharge from hospital and short-term needs assessment

53. The hospital discharge meeting agreed that Mrs J should go into a care home for a short period. Whilst Mr F says this was to provide her with support to enable her to increase her skills and become more independent, there is no evidence that a referral was made by the hospital for reablement services or for a community support bed or for brain injury OT. Nor did Mrs J meet the criteria for neurological rehabilitation. I cannot investigate this further (as set out in paragraph 4) because these actions were the responsibility of the NHS Trust.
54. There was a discussion about going into sheltered housing or supported living but Mrs J, who had capacity to make her own decisions, had said she wanted 24-hour care initially, so no referral to supported living was made.
55. The case records say Mrs J’s stay in the Home would be for “recuperation and convalescence”. The Council’s role was to assess Mrs J’s care and support needs after she was discharged. It did so after three weeks. Mr F complains this was too late but it is in line with the Guidance and Regulations in relation to intermediate care being free of charge for the first six weeks. We expect councils to assess a person’s longer term needs within the first six weeks. I therefore do not find fault.
56. The social worker suggested Mrs J visit her home with an OT. At this visit the OT made suggestions for minor adaptations and considered Mrs J could live downstairs. Whilst Ms G disagreed with this view, I have not seen any evidence of fault in the way the assessment was done.
57. However, because of Ms G’s concerns and the need for adaptations to be done, the social worker decided in July that Mrs J could not yet go home and would await a move to a bungalow. The adaptations were therefore not requested. I do not find fault with that as the plan was for Mrs J to move to a bungalow, rather than her own home.
58. Ms G considered the Home was not suitable. I have seen evidence that the social worker looked for alternative care homes but they were either not available or not suitable. I therefore do no not find fault with the decision Mrs J should remain in the Home whilst awaiting a bungalow.
59. However, whilst the outcome of the assessment was discussed with Ms G I have seen no evidence it was discussed with Mrs J nor of a written assessment or care and support plan. This is fault.

Financial assessment

60. The first four weeks of Mrs J’s stay in the Home were funded by the NHS under Discharge to Assess. After that, Mrs J became a temporary resident as the plan was not for her to remain in a care home permanently.
61. This means the financial assessment had to consider her housing-related costs. The case records show Ms G had sent bank statements and invoices to the finance team.
62. In response to my enquiries, the Council said it had allowed Mrs J £11.28 per week, in addition to the personal expense allowance of £28.25 per week, using bills for a BT phone line and standing gas and electric charges. Mr F says the Council did not take into account internet and mobile phone costs, but these are not costs which the Council is required to consider. The allowance made is in line with the Guidance and I have not seen evidence of fault in the way this was calculated. So I do not find fault in the financial assessment.

Home adaptations and long-term needs assessment

63. The long-term social worker visited Mrs J on 10 August and went with her to her home on 17 August. The care and support assessment concluded that Mrs J could go home with homecare support and adaptations, which the social worker requested. I have seen no evidence of fault in the way the assessment was done.
64. However, Ms G then told the social worker she had concerns about Mrs J’s condition and that some of the adaptations could not be made. The social worker therefore decided on 19 September that it was not possible for Mrs J to go home at that time, but I have seen no evidence this was written up into a care and support assessment by November 2023 or discussed with Mrs J. This is fault.
65. The housing association was reluctant to do the adaptations as there had been an application to re-house Mrs J in a bungalow and some of them could not be done. There was then a delay in processing the application for a bungalow. I do not find fault by the Council in relation to the adaptations.
66. However, some of the Council’s actions amounted to fault:
• On 28 September, the social worker determined there were no doubts about Mrs J’s capacity and that she was happy to stay in the care home. But on 10 August she had said she wanted to go home and on 3 September Ms G had raised concerns that Mrs J was increasingly confused. However the social worker did not visit Mrs J to assess whether there were now doubts about her mental capacity or whether she was still able to go home. He then requested an independent advocate for Mrs J but had not visited her or determined if she had substantial difficulty in being fully involved in the care and support assessment. I consider this to be fault.
• At the multi-disciplinary team meeting, the social worker said that professionals were happy for Mrs J to go home, but the nurse practitioner had said she could not comment on this, the care home manager had expressed concerns about Mrs J going home and the OT thought she should be in residential care or sheltered housing. It was also reported that Ms G had not wanted the adaptations to be done, but in fact some could not be done and the housing association did not want to install the external handrail. So I am concerned that the meeting did not have all the information it needed when it decided Mrs J could go home.
• The outcome from the meeting was then not discussed with Mrs J. This is fault.

Did the fault cause injustice to Mrs J?

67. Mr F says Mrs J deteriorated because the Council failed to ensure she went home after four weeks in the Home. However, I do not find that Mrs J remained in the Home as a result of fault by the Council. I therefore do not find that being in the Home was an injustice caused by fault.
68. There was fault in not discussing the outcomes of assessments with Mrs J, not visiting her in September when it was reported her condition had deteriorated, making a referral to an independent advocate, and in the information provided to the multi-disciplinary meeting. But I do not consider this has caused injustice to her. This is because the outcome of remaining in the Home would have been the same even if these faults had not occurred.

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Final decision

69. There was fault by the Council but it did not cause injustice. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman