Summary: We found fault with the Trust’s concerning handling of Mrs Y’s discharge from hospital. The failure of the Trust to arrange physiotherapy for Mrs Y caused uncertainty for her family and put them to unnecessary time and trouble. The Trust will apologise and make a financial payment in recognition of the distress and uncertainty this fault caused. We found no fault by the Council in terms of how it charged Mrs Y for her care.

The complaint

1. The complainant, who I will call Mr X, is complaining about the care and support provided to his mother-in-law, Mrs Y, by West Sussex County Council (the Council) and Sussex Community NHS Foundation Trust (the Trust). Mr X complains that:
• the Trust and Council discharged Mrs Y to a care home out of area without arranging physiotherapy to meet her assessed needs. Mr X says neither the Trust nor the Council discussed the discharge with Mrs Y’s family;
• the Trust delayed in making a referral to the local physiotherapy service. When it did eventually make the referral, that service confirmed it could not provide physiotherapy for Mrs Y;
• the Council charged Mrs Y more in top up fees than she should have paid based on her financial assessment. Mr X says this left her with less than her assessed personal expenses allowance; and
• the Council failed to offer suitable alternative care homes within the local authority budget that could also facilitate physiotherapy to meet Mrs Y’s assessed needs.
2. Mr X says mistakes by the Trust and Council led to Mrs Y remaining in the care home for longer than necessary. He says Mrs Y’s condition deteriorated as a result and she was unable to return home. In addition, Mr X says Mrs Y was put to unnecessary expense because of the Trust and Council’s failings.

Back to top

The Ombudsmen’s role and powers

3. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen 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).
4. 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.
5. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

6. In making my final decision, I considered information provided by Mr X and discussed the complaint with him. I also considered information provided by the Trust and Council, including the care records. In addition, I took account of relevant legislation and guidance. I considered comments from all parties on my draft decision statement before making a final decision.

Back to top

What I found

Relevant legislation and guidance

COVID-19 pandemic

7. In response to the continued COVID-19 pandemic and the need to keep hospital beds free, the Government introduced updated guidance around hospital discharges in August 2020. This was entitled Hospital Discharge Service: Policy and Operating Model (the discharge guidance).
8. The discharge guidance set out that patients must be discharged from hospital as soon as it was clinically safe. It introduced a “discharge to assess” model consisting of four care pathways.
9. The discharge guidance set out the Government would fund, via the NHS, the cost of post-discharge recovery and support services (such as rehabilitation and reablement) for up to six weeks. This was to enable care to continue until a person’s longer-term care needs had been assessed, at which point the person’s care would move to normal funding arrangements.

Charging for permanent residential care

10. The Care Act 2014 provides a single legal framework for charging for care and support under sections 14 and 17. It enables a council to decide whether to charge a person when it is arranging to meet a person’s care and support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance (the statutory guidance).
11. When the Council arranges a care home placement, it must follow the regulations when undertaking a financial assessment to decide how much a person has to pay towards the cost of their residential care.
12. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person is entitled to access council support to meet their eligible needs. People who have over the upper capital limit are expected to pay the full cost of their residential care home fees. Once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. Where a person’s resources are below the lower capital limit they will not need to contribute to the cost of their care and support from their capital.

Choice of care homes

13. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it provides or arranges a particular type of accommodation for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions.
14. The person has the right to choose between different providers of particular accommodation provided:
• the accommodation is suitable to meet the person’s needs;
• to do so would not cost the council more than the amount specified in the person’s personal budget for the particular accommodation;
• the accommodation is available; and
• the provider of the accommodation is willing to enter into a contract with the council to provide care at the rate specified in the person’s personal budget on the council’s terms and conditions.
15. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or in certain circumstances the resident is willing and able to pay the additional cost (‘top-up’). But a top-up payment must always be optional and never the result of commissioning failures leading to a lack of choice.

Top-up payment

16. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top-up fee is the difference between the personal budget and the cost of a home.
17. However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:
• the person can find someone else (a ‘third party’) to pay the top-up; or
• the resident has entered a deferred payment scheme with the council and is willing to pay the top-up fee themself.
18. In such circumstances, the council needs to ensure the person paying the top-up enters a written agreement with the council and can meet the extra costs for the likely duration of the agreement.

Property disregard

19. The charging framework aims to prevent people having to sell their home at a time of crisis. A council must disregard the value of a person’s main or only home when the value of their non-housing assets is below the capital limit for 12 weeks when that person first enters a care home as a permanent resident. This the ’12-week property disregard’. A council also has discretion to apply a 12-week property disregard if a person’s financial circumstances change unexpectedly.

Key facts

20. On 30 December 2020, Mrs Y was admitted to hospital having suffered a fall at home. She underwent surgery to repair a fractured right hip.
21. Mrs Y tested positive for COVID-19 on 7 January 2021, while she was still an inpatient.
22. On 19 January, a physiotherapist discussed discharge options with Mrs Y. Mrs Y agreed to an interim care home placement with a programme of physiotherapy to support her to improve her mobility.
23. By 22 January, the clinical team considered Mrs Y ready for discharge.
24. The local placement team made enquiries with five local care homes. Four of these were unable to offer Mrs Y a placement. However, the fifth care home (Placement 1) agreed to accept Mrs Y for a residential placement. Placement 1 was located across the border in neighbouring Hampshire.
25. Mrs Y was discharged to Placement 1 on 26 January. The cost of the placement was initially £900 per week. The NHS funded the initial six weeks of Mrs Y’s placement through the ‘Discharge to Assess’ model. This was put in place by the government in March 2020 as part of the response to the emerging COVID-19 pandemic. This model aimed to ensure the discharge of patients from hospital as soon they were clinically stable.
26. On 27 January, the hospital discharge team referred Mrs Y to the Chichester Responsive Service (CRS). The CRS is a multidisciplinary team that provides short-term health services, including therapy, in the community.
27. Mrs Y had registered with a GP in Hampshire as part of her move to Placement 1. This meant the CRS was unable to provide physiotherapy services to her as she was no longer in the service’s area. However, a CRS Occupational Therapist (OT) agreed to assess Mrs Y.
28. A CRS OT assessed Mrs Y on 29 January. The OT decided Mrs Y needed physiotherapy to begin as soon as possible. She advised Placement 1 to arrange for Mrs Y to be referred to local physiotherapy services in Hampshire.
29. By 14 February, Mrs Y was still not receiving physiotherapy. As a result, Mrs Y’s family arranged for her to be supported by a private physiotherapist. Mrs Y moved to larger room at Placement 1 to facilitate this. This increased the fees from £900 to £1,000 per week.
30. An OT assessed Mrs Y’s home on 25 February and discussed her care with the private physiotherapist. They concluded Mrs Y may be able to return home but would need to live downstairs as she was unable to transfer to use her stairlift. However, Mr and Mrs X were keen for Mrs Y to remain in Placement 1 to complete her delayed programme of rehabilitation.
31. On 2 March, a social worker spoke to Mrs Y. Mrs Y was keen to return home eventually but did not feel ready at that stage.
32. The social worker advised Mr and Mrs X on 9 March that the Council would fund an extension of the placement as a ‘short stay’ while she underwent further rehabilitation and assessment. This meant Mrs Y was required to contribute £135.85 per week towards the Placement 1 fees. This funding arrangement ran from 9 March to 19 April.
33. On 13 April, Mrs Y told the social worker that she no longer wished to return home. Mrs Y said she preferred to remain in Placement 1 on a long-term basis. The social worker explained to Mrs Y that she would arrange a 12-week property disregard period.
34. The 12-week property disregard period began on 19 April. During this period, Mrs Y paid a contribution towards the Placement 1 fees, as well as a weekly top-up fee of £462.49.
35. On 26 April, the social worker provided Mrs Y and her family with a list of alternative accommodation options. This included two care homes that were able to offer placements within Mrs Y’s personal budget. However, Mrs Y chose to remain in Placement 1. As a result, she was required to pay a top-up fee.

Analysis

Discharge

36. Mr X complains that the Trust and Council discharged Mrs Y to a care home out of area without arranging physiotherapy to meet her assessed needs. Mr X says neither the Trust nor the Council discussed the discharge with Mrs Y’s family.
37. The clinical records show Mrs Y was able to communicate her wishes effectively. Mrs Y was engaging well with physiotherapy sessions and was keen to return home as soon as possible.
38. On 19 January 2021, a physiotherapist discussed discharge plans with Mrs Y. The physiotherapist explained that discharge to an interim bed in the community would allow for additional therapy and would likely help Mrs Y to achieve greater independence when she eventually returned home. The physiotherapist noted that Mrs Y consented to an interim bed placement.
39. By 22 January, the clinical team were satisfied Mrs Y had recovered from the COVID-19 virus and was medically fit for discharge.
40. In the meantime, the Trust referred Mrs Y to the placement team to source an interim placement. Having made enquiries with several care homes, the placement team identified a care home in Hampshire (Placement 1) that had capacity to offer Mrs Y a place. Mrs Y was discharged to Placement 1 on 26 January.
41. I recognise the COVID-19 pandemic placed great pressure on both health and social care services. The discharge guidance in place at that time required hospitals to facilitate the discharge of patients as soon as it was clinically safe to do so. The introduction of national lockdowns and visiting restrictions also made communication with families and carers more difficult.
42. Nevertheless, the discharge guidance set out that “[o]n decision of discharge, the person and their family or carer…should be informed and receive the relevant [information].” I have reviewed the care records and have been unable to locate any evidence of contact by Trust officers with Mr X regarding arrangements for Mrs Y’s discharge. Indeed, Mr X told me he did not become aware that Mrs Y had been discharged until he received contact from Placement 1. This was fault by the Trust.
43. I consider it unlikely, on balance of probabilities, that plans for Mrs Y’s discharge would have changed even if Trust staff had involved Mr X in discussions. This is because Mrs Y had capacity to make decisions about her care and was content to be discharged to Placement 1 on an interim basis. However, the Trust’s failure to involve Mr X in the discharge planning caused him avoidable frustration.
44. Mrs Y was assessed by both a physiotherapist and Occupational Therapist (OT) during her admission. These assessments found Mrs Y would need a programme of physiotherapy support to improve her mobility and allow her to return home. Despite this, I found no evidence to suggest the Trust referred Mrs Y to the relevant community physiotherapy team in Hampshire prior to her discharge. This was fault by the Trust.
45. It is clear the failure to make a referral resulted in a delay in Mrs Y receiving physiotherapy support. It is not now possible to say exactly what impact this had on Mrs Y’s recovery. This leaves Mr X with significant uncertainty as to whether the outcome of Mrs Y’s care would have been different if she had received prompt physiotherapy support.

Delayed referral

46. Mr X says the Trust delayed in making a referral to the local physiotherapy service in Hampshire. When a referral was eventually made, that service confirmed it could not provide physiotherapy for Mrs Y.
47. The case records show the Trust did not refer Mrs Y to the CRS until 27 January, by which point she had already been discharged from hospital.
48. The CRS established that, as Mrs Y was now registered with a GP in Hampshire, it would be unable to provide her with ongoing therapy support. Nevertheless, an OT assessed Mrs Y on 29 January. She advised Placement 1 to refer Mrs Y to the local community physiotherapy service for ongoing support.
49. Mrs Y’s family were advised by Placement 1 to approach her GP in Hampshire to request a referral. However, the GP advised them to contact Mrs Y’s original GP in West Sussex. That GP, in turn, advised them to approach Placement 1 for assistance.
50. Mrs Y was eventually referred to the local physiotherapy service In Hampshire. It is unclear who made this referral. The service responded to the referral on 9 February, explaining that it could not offer Mrs Y an immediate appointment and that her name had been added to a waiting list.
51. In my view, this situation would likely have been avoided if the Trust had arranged physiotherapy services in the community prior to discharging Mrs Y from hospital. As I have explained above, this omission represents fault by the Trust.
52. The evidence I have seen shows Mrs Y’s family made appropriate efforts to secure NHS physiotherapy for her. However, when this was unsuccessful, the family had little choice but to seek private physiotherapy services instead. This put the family to further time and trouble and caused Mrs Y unnecessary expense.

Charging

53. Mr X says the Council failed to offer suitable alternative care homes within the local authority budget that could also facilitate physiotherapy to meet Mrs Y’s assessed needs. He says this means Mrs Y should not have been charged a top-up fee. Mr X says the Council’s decision to charge Mrs Y a top-up fee meant she was left with less than her assessed personal expenses allowance.
54. The NHS funded the first six weeks of Mrs Y’s stay in Placement 1 under the ‘Discharge to Assess’ model.
55. A social worker spoke to Mrs Y on 2 March 2021. Although Mrs Y remained keen to return home, she was not yet ready to do so. The social worker explained that the Council may be prepared to fund Placement 1 for an additional six weeks as a short stay placement. This meant Mrs Y would be required to pay a charge of £135.85 per week.
56. However, the social worker advised Mr X on 8 March that she had identified an alternative care home in the West Sussex area that could meet Mrs Y’s needs at the Council’s rate (Placement 2). The social worker explained that, if Mrs Y wished to remain in Placement 1, she would need to pay a top-up fee of £324.33 in addition to the short stay charge. Furthermore, the social worker advised that Mrs Y would need to pay for the weekly private physiotherapy session (£50). This was a total of £510.19 per week.
57. Mr X disputed the proposed move to Placement 2. He said it was in Mrs Y’s best interests to remain in Placement 1 until she had completed her delayed course of physiotherapy. Furthermore, when Mr X visited Placement 2, he was advised there was no longer a room available at the Council’s rate.
58. On 9 March, the Council agreed short stay funding for a four-week period at Placement 1. This was at the original room rate of £900 per week. Mrs Y was only required to pay the basic short stay fee of £135.85 per week. The Council subsequently extended the short stay period to six weeks.
59. On 7 April, the social worker spoke to Mrs Y’s private physiotherapist. The physiotherapist explained that Mrs Y was making no further progress in her therapy. The physiotherapist also said that Mrs Y had told her several times that she no longer wished to return home.
60. The following day, the social worker spoke to Mr X. He confirmed that Mrs Y was now keen to remain in the care home. The social worker explained that she would seek authorisation for a 12-week property disregard to allow Mrs Y time to consider her options.
61. On 13 April, the social worker spoke to Mrs Y. Mrs Y confirmed her preference would be to remain in Placement 1 as she felt settled there.
62. The social worker contacted Mr X on 19 April to explain that the 12-week property disregard had been agreed. Placement 1 confirmed a weekly fee of £1,000 for a long-term placement. The Council agreed to pay £537.51 per week (minus Mrs Y’s contribution, which had not yet been assessed) during the disregard period. Mrs Y would pay a top-up fee of £462.49.
63. The social worker identified an alternative placement in the Chichester area on 22 April (Placement 3). However, the fees were still significantly above the Council’s rate.
64. On 26 April, the social worker wrote to Mr X with six further care home options. Of these, two (Placements 4 and 5) were able to offer a room at the Council’s rate. Both placements were in the Bognor Regis area. However, Mrs Y chose to remain in Placement 1.
65. The statutory guidance sets out that a council cannot ask a person to pay a top-up fee if no suitable accommodation is available within that persons’ personal budget. In that event, a council must arrange care in a more expensive setting and adjust the person’s personal budget accordingly. The key consideration here, therefore, is whether the Council offered Mrs Y and her family suitable alternative accommodation options.
66. In his correspondence, Mr X argues that the Council failed to do so. He says Placements 4 and 5 were outside the area served by Mrs Y’s private physiotherapist. Mr X says Mrs Y would have been required to go on the CRS waiting list for an assessment, thereby leading to additional delays in her physiotherapy.
67. The Council was entitled to ask Mrs Y to pay an assessed contribution towards her care. This was in keeping with the charging regulations and the statutory guidance.
68. The case records show that, by 13 April, Mrs Y had decided to remain in a care home on a long-term basis. The property disregard period subsequently began on 19 April. On 26 April, the Council offered two alternative care homes (Placements 4 and 5) that were within Mrs Y’s personal budget and that would be able to meet her needs. In response to my enquiries, the Trust has confirmed it is likely the CRS would have been able to support Mrs Y at either placement.
69. I am satisfied the evidence shows the Council did offer Mrs Y a genuine choice of accommodation as required by the statutory guidance. However, Mrs Y decided to remain in Placement 1. Mrs Y had capacity to make this decision. This meant the Council was entitled to ask her to pay a top-up fee. Again, this was in keeping with the statutory guidance and I find no fault by the Council in this regard.
70. Mr X is also unhappy with the Council’s decision not to disregard certain items of expenditure when completing Mrs Y’s financial assessment.
71. I can see this matter was considered in some detail in the Council’s complaint responses of August and September 2021. The decision on whether to disregard some of Mrs Y’s expenses was ultimately a matter of discretion for the Council. However, I am satisfied the Council appropriately considered the evidence provided by Mr X in making this decision, albeit I appreciate Mr X does not agree with the Council’s conclusions. I found no fault by the Council on this point.

Back to top

Agreed actions

72. Within one month of my final decision statement, the Trust will:
• reimburse Mrs Y’s estate for the cost of any private physiotherapy fees she incurred between February and April 2021. This recognises the fact that Mrs Y’s family were left with no alternative but to secure private services when the Trust failed to secure NHS physiotherapy services to meet her assessed needs; and
• pay Mr X £300 in recognition of the uncertainty caused to him by its failure to arrange physiotherapy for Mrs Y. This also recognises the avoidable time and trouble Mr X was put to in securing alternative services for Mrs Y.
73. Within three months of my final decision statement, the Trust will review its discharge policies and procedures to ensure there is a clear care pathway in place for patients who will be receiving therapy services in the community. This should include a robust process for dealing with patients who are discharged out of area.
74. The Trust will write to the Ombudsmen with the outcome of this review.

Back to top

Final decision

75. I found fault by the Trust with regards to its handling of Mrs Y’s discharge from hospital and its failure to put physiotherapy services in place for her.
76. I am satisfied the further actions the Trust will undertake represent a reasonable and proportionate remedy for the injustice caused by this fault.
77. I found no fault by the Council with regards to how it charged Mrs Y for her care.
78. I have now completed my investigation on this basis.

Back to top

Investigator's decision on behalf of the Ombudsman