Summary: Mr B complained about how the Council and Trust assessed and planned Ms C’s care, and arranged discharge from hospital. We found fault with the way the Council handled Ms C’s care assessment and hospital discharge, causing distress to Ms C and distress and uncertainty to Mr B. The Council agreed to apologise to Mr B, make a symbolic payment, and make service improvements. We found no fault in the Trust’s actions.

The complaint

1. Mr B complains that Durham County Council (the Council) carried out assessments and planned care for his late sister, Ms C, without involving her family or arranging an Independent Mental Capacity Advocate (IMCA). Specifically, Mr B complains the Council began arranging for Ms C to move from supported living, where she had lived for many years, to a nursing home, without seeking input from her family.
2. Mr B further complains there were then delays in Ms C leaving hospital, following discussions involving both the Council and County Durham and Darlington NHS Foundation Trust (the Trust) about whether she could return home or needed a different level of care. He said this meant Ms C was transferred to step-down care (care provided temporarily at a community hospital) at a time when she should have been able to go home. Mr B said this caused Ms C great confusion and distress.
3. Mr B also complains the Council made errors in Ms C’s care plan, and that record-keeping and communication were poor.
4. Mr B said these events caused great distress and confusion to Ms C, as she had to remain in hospital unnecessarily, including the unfamiliar environment of step-down care. Mr B also said it was distressing for him to witness the impact of this on Ms C, and caused him frustration and confusion.
5. As an outcome of his complaint, Mr B wants the Council and Trust to improve their services, so that others do not go through the same experience.

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The Ombudsmen’s role and powers

6. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
7. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
8. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
9. If we are satisfied with the actions or proposed actions of the organisations that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(1), as amended)

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How I considered this complaint

10. I considered evidence provided by Mr B, the Council and the Trust, as well as relevant law, policy and guidance.
11. Mr B, the Council and the Trust 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

Key legislation and guidance

12. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
13. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.

Best interest decisions

14. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision-makers must follow to determine what is in a person’s best interests. The decision-maker must also consider if there is a less restrictive option available that can achieve the same outcome.

Care and support

15. The Care Act 2014, Section 6, says a local authority must cooperate with each of its relevant partners, in the exercise of their respective functions relating to adults with needs for care and support.

Hospital discharge

16. Department of Health and Social Care issued statutory guidance: Hospital discharge and community support guidance (the National Discharge Guidance) in April 2022 (updated January 2024). This provides guidance to NHS bodies and local authorities on discharging adults from hospital. It said local areas should adopt discharge processes that best meet the needs of the local population. This could include the ‘discharge to assess, home first’ approach.

What happened

17. Ms C had been living in a bungalow provided through supported living for over 20 years. Ms C had previously also attended a day centre, but she became unable to attend this service. Ms C’s care package, provided at her supported living placement, was temporarily increased by 20 hours per week. This was to cover the time when Ms C would previously have been at the day centre.
18. In April 2024, the Council started a Care Act assessment to review Ms C’s care and support needs. Ms C also had an assessment for NHS Continuing Healthcare (CHC) funding. CHC is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. CHC funding can be provided in any setting and can be used to pay for a person’s residential nursing home fees in some circumstances.
19. NHS-funded nursing care (FNC) is the funding provided by the NHS to residential nursing homes that also provide care by registered nurses. FNC funding is set at a weekly rate. A person’s local NHS Integrated Care Board (ICB) is responsible for assessing their eligibility for CHC or FNC and providing the funding.
20. During the CHC assessment, the ICB decided Ms C was not eligible for CHC, but was eligible for FNC.
21. In May 2024, Ms C was admitted to an acute hospital, managed by the Trust, with symptoms of fluid retention. After two weeks, the Trust assessed Ms C as medically fit to leave hospital.
22. Ms C was assessed under the MCA as not having capacity to make decisions about her care. Therefore, decisions about what care she would need after she left hospital were made under the best interest process, as set out in paragraph 14, above.
23. Meetings to discuss Ms C’s care were held. The first involved Ms C’s family, the clinical and nursing team, the learning disability nursing team, the Council, and the provider. The second meeting was between the family, Council and provider. At this meeting, the Council said Ms C would need nursing care on leaving hospital, and proposed a nursing home placement, as Ms C’s care provider did not have nursing support.
24. The meeting notes say Ms C’s family said it would not be in her best interests to move to a nursing home, as moving to an unknown place would have a significant detrimental impact on Ms C. They also explained Ms C was asking to return home. The meeting notes state it was agreed Ms C would move to a “step down” bed in a community hospital, while discharge planning continued.
25. Ms C was in the community hospital for three weeks. A further discharge planning meeting took place. No decision about Ms C’s care was made at this meeting. There was then a multidisciplinary meeting to review the FNC decision. The Trust made a safeguarding referral owing to its concerns about Ms C being distressed in hospital. An increased care package was agreed, and Ms C was discharged home the following day. Sadly, Ms C died several days after returning home.
26. Mr B complained to the Council about the way it planned Ms C’s care, assessed her needs, and arranged discharge from hospital. He was dissatisfied with the Council’s response and complained to the Ombudsmen.
27. As Mr B has raised several issues within his complaint, I have set these out under separate headings, below.

Involving Ms C’s family or advocate

28. Mr B complained that the Council arranged meetings and made discharge plans that significantly impacted Ms C’s care, without involving her family or arranging an advocate. Mr B said that had the family or an advocate been involved sooner, decisions about Ms C’s care could have been made more quickly and delays prevented.
29. As noted above, the Council carried out a Care Act assessment, begun in April 2024, and completed while Ms C was in hospital.
30. Mr B complained he and other family members were not invited to support Ms C or be involved in the Care Act assessment. He said therefore they were not aware that a nursing home was being considered until much later. The assessment documentation does not give any reason for not involving Mr B, or Ms C’s other family members in the assessment. In responding to Mr B’s complaint, the Council it could not find a record of Ms C’s family being consulted as part of the assessment, and apologised for this.
31. There were flaws in the Council’s assessment of Ms C’s needs, as it did not involve Mr B or Ms C’s other family members from the start. The Care Act 2014, section 9(5)(c) is relevant to this part of Ms B’s complaint. The Act says that a local authority, in carrying out a needs assessment, must involve any person who the adult asks the authority to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare. Therefore, my view is there was fault in the Council’s assessment as it did not involve Mr B from the start, and has not provided any reason for not doing so.
32. Mr B also raised concerns that the Council did not appoint an advocate as requested by Ms C’s family. The Care and Support Statutory Guidance (6.33 and 6.34) says if a family member or friend is not willing or available to provide support, the local authority must appoint an independent advocate as early as possible in the process. As noted above, Ms C’s family were able to provide support. However, if the Council had considered an advocate was needed, it would have been in line with the guidance to involve them as early as possible. However, the records indicate the Council did not contact an independent advocate until the time of the later discharge planning meetings, rather than at the start of the assessment process.
33. It is likely that had Ms C’s family been involved in the Care Act assessment initially, they would have had an opportunity to understand the situation at an earlier stage. This would also have given them an opportunity to put forward their views, including any concerns about changes to Ms C’s care and residence. I recognise the Council held discussions with Ms C’s family later, while she was in hospital. However, not involving Ms C’s family in care assessment and planning from the start, meant they were not aware of the suggestion of a nursing home until later in the process. This meant they did not get the opportunity to raise any concerns at that initial stage, causing distress and uncertainty to Mr B.
34. While the Council has apologised to Mr B on this point, I have also made further recommendations for remedy, below.

CHC assessment

35. Regarding the earlier CHC assessment meeting, the relevant ICB would be responsible for that process. If Mr B wishes to pursue his complaint about the CHC assessment specifically, the relevant ICB would be best placed to respond to any concerns he may have.

Record-keeping

36. Mr B said record-keeping was poor and there were errors in Ms C’s care plan. He said notes of the meetings did not reflect the family’s views or their own records. He also said the Council delayed sending the minutes to him.
37. In response to Mr B’s complaint, the Council acknowledged a delay in sending the minutes. The Council apologised and said it would add the notes Mr B had made to its records, so that they could be read alongside each other.
38. The MCA Code of Practice (5.52) says it is good practice for health and social care staff to record at the end of the process why they think a decision is in the person’s best interests. The Code states this is particularly important if this goes against the views of somebody who has been consulted during the best interest process.
39. The delay in receiving the minutes meant Mr B did not have a formal record of the discussions or decisions made until several weeks afterwards. Mr B explained this caused him confusion and distress over what had been agreed and what would happen. I also recognise Mr B’s view that even when he received the notes, they did not reflect the discussions. Sharing the notes with Mr B in a timely way is likely to have provided greater clarity for him regarding plans for Ms C’s care. As Mr B did not receive the notes until several weeks afterwards, he missed the opportunity to raise his concerns at the time.
40. I recognise that the Council has apologised to Mr B for the delay in providing a copy of the notes. I have made further recommendations for remedy on this point, below.

Discharge from hospital and transfer to step-down care

41. Mr B complained there were delays in Ms C leaving hospital, following discussions between the Council and the Trust. Mr B said Ms C did not leave hospital until three weeks after she was medically fit for discharge.
42. During this period, Ms C was transferred from the acute hospital to a community hospital, while arrangements were made for her care. Ms C also received treatment in the acute hospital’s Emergency Department after a fall at the community hospital. Mr B said although Ms C was well looked after during her stay in the community hospital, the experience overall was detrimental to her. He said being in an unfamiliar environment caused Ms C great confusion and distress, at a time when she should have been able to go home.
43. At the first meeting to discuss Ms C’s care, the Trust’s clinical team said that after leaving hospital, Ms C’s weight should be checked every other day, to monitor any fluid retention. The notes of this meeting say Ms C’s need for any nursing care was the same as before she went into hospital, although there was a potential need for nursing care in future.
44. The next meeting involved Ms C’s family, the Council and the provider. The notes from this meeting say the clinical team had indicated that Ms C would need nursing care on discharge. It is unclear why this was noted, as at the most recent meeting, the Trust said Ms C’s nursing needs at the time were the same as before she went into hospital.
45. The concerns raised at this meeting were in relation to personal care and equipment needed, including bathing, weight monitoring and a wheelchair. The meeting notes say it was agreed Ms C would move to the community hospital while discharge planning continued.
46. Shortly after Ms C moved to the community hospital, the Trust contacted the Council to explain that Ms C was distressed and unsettled in hospital. The Trust said discharge home was in Ms C’s best interests, and queried the equipment needed. The Trust said this was not immediately essential for discharge as there were alternatives that could be used in the community and could be addressed there. A further medical review by the Trust also said it was in Ms C’s best interests to go home to a familiar environment.
47. The Trust’s Discharge and Transfer Policy is relevant to Mr B’s complaint. This says that patients with ongoing health or social care needs, or patients who lack capacity to decide about their long term care needs, are considered to have complex discharge needs. Patients with complex discharge needs should be referred to the discharge management team and the “home first principle” should be followed. The policy also says that if a patient is assessed as medically fit for discharge, it is not appropriate that they remain in hospital due to the negative impact this can have. Discharge planning should be done in conjunction with the patient and their representatives, and the multidisciplinary team. The Trust referred Ms C to the discharge management team, and the Trust records show it raised concerns with the Council about Ms C remaining in hospital.
48. The Trust’s actions appear to be in line with its discharge policy. Based on the available evidence, I found no fault by the Trust in its involvement with discharging Ms C from hospital.
49. In its response to Mr B’s complaint, the Council said that in planning Ms C’s discharge from hospital, it needed to consider the following issues: the earlier decision that Ms C was eligible for FNC; equipment needed; and information from Ms C’s family, the Trust and the provider. The Council explained that Ms C’s supported living did not have nursing oversight. It also said that while Ms C’s medical condition may not have changed, she needed an increased care package. The Council apologised for the time taken, but said it needed to explore the range of opinions about the level of care Ms C needed.
50. The CSSG (section 10.59) says that “good, person-centred care planning is particularly important for people with the most complex needs”. The guidance goes on to say (10.64) that “where an individual has been assessed as lacking capacity to make a particular decision, then the local authority must commence care planning in the person’s best interests under the meaning of the MCA.” The Council must consider the least restrictive option for the person’s care.
51. The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care (the Framework, paragraph 102) is also relevant to this part of Mr B’s complaint. This section covers how CHC and FNC interact with the hospital discharge process. The Framework says that multidisciplinary teams should work together when discharging people, to manage risk carefully. It notes that there can be negative consequences from decisions that are too risk averse.
52. The Trust’s views on equipment for Ms C on returning home are set out above. Ms C’s family offered to arrange wheelchair hire and purchase scales to avoid any further delay. I recognise the Council wanted to ensure it considered the equipment Ms C might need at home, but given the advice from the Trust and input from Ms C’s family, this should not have delayed Ms C’s discharge from hospital.
53. Regarding changes to Ms C’s needs, a temporary increase of 20 hours had been put in place in April 2024 when the Care Act assessment was started and in view of the FNC decision. The notes of the second care planning meeting say the provider had agreed it could meet Ms C’s needs with the necessary support in place, although the notes do not say whether this meant a specific increase in the number of hours. During planning for Ms C’s discharge from hospital, the provider advised the Council it needed an increase of 44 hours to meet Ms C’s needs in supported living. The Council therefore considered whether a nursing home placement would be needed.
54. The notes indicate the further increase was requested because of concerns around the level of support Ms C required with her mobility. However, as noted above, the Trust records indicate Ms C was mobilising independently and had “returned to baseline” (that is, her previous level of mobility). The information recorded at this meeting that Ms C would need nursing care does not seem to reflect the most recent meeting with the Trust, when the clinical team said nursing care was not needed.
55. The further meeting again came to no conclusion about what should happen in terms of Ms C’s care. The notes say further information was required about Ms C’s needs. However, the Trust had provided information about Ms C’s nursing needs, mobility, and equipment at the time Ms C was medically fit for discharge, and then through the discharge management team and community hospital team. The Council was entitled to consider Ms C’s FNC eligibility when planning her discharge from hospital. However, it is not clear why the more recent information from the Trust about nursing needs was not reflected in the meeting notes.
56. As noted above, the FNC decision was made before Ms C went into hospital, yet she was able to remain in her home at that time. Given there were no clinical concerns raised about Ms C returning to supported living after being in hospital, FNC eligibility should not have prevented Ms C from returning home, as this had already been in place before her admission to hospital.
57. I acknowledge that Ms C was eventually able to return home, with an increased care package in place, and that the Council arranged increased funding. However, Ms C was in hospital for three weeks after she was medically fit for discharge and it should not have taken this long for her to return home. There seem to have been several factors related to this: a difference of opinion between Ms C’s family, the Trust and Council, consideration of equipment needed, and consideration of nursing care. I recognise the Council had to balance all these issues. However, it was known from April that Ms C was eligible for FNC, yet this did not prevent her from staying in her own home at that time. There were also alternatives to providing the equipment needed at Ms C’s home. Therefore, my view is the best interest decision that Ms C could return home could have been made sooner.

Summary

58. I found fault with the Council in not initially involving Mr B or an independent advocate in Ms C’s care act assessment, lack of communication with Mr B about care planning, and delays in Ms C’s discharge from hospital. This caused distress to Ms C and distress and uncertainty to Mr B.
59. I found no fault with the Trust in terms of its involvement in Ms C’s discharge planning.

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Action

60. Within one month of the final decision on this complaint, the Council has agreed to:

• Apologise to Mr B for the distress caused by the failings found; and
• Make a payment of £250 to Mr B, to act as a symbolic recognition of the avoidable uncertainty and distress caused by the faults.

61. Within three months of the final decision on this complaint, the Council has agreed to review its systems and procedures relating to the fault found in this complaint, to improve future practice. The Council should share the outcome of the review with relevant staff.
62. The Council should provide us with evidence they have complied with the above actions.

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Decision

63. I find fault by the Council causing injustice. The Council agreed actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman