Summary: We find fault with the Council. The Council did not keep accurate records about what was discussed with Miss S before she agreed to go to a Care Home. It also did not arrange funding with the local Integrated Care Board (ICB) to cover the interim period Miss S spent in a Care Home whilst she waited for a rehabilitation bed. The Council was also unclear with Mrs D in the local complaints process around the Continuing Healthcare screening process. These faults meant Miss S paid for a Care Home place which caused her distress and impacted on her recovery. Mrs D was distressed and frustrated with the Council who did not fully explain what happened. We recommended an apology, financial redress to both Miss S and Mrs D and service improvements to address the injustice.

The complaint

1. Mrs D complains on behalf of Miss S about Lancashire County Council (the Council) and Lancashire Teaching Hospitals NHS Foundation Trust (the Trust). Miss S broke her hip and went to hospital in October 2021. She needed physiotherapy and needed to go to a rehabilitation facility for this. Due to a lack of available beds, she went for respite at a Care Home, which she paid for.
2. Mrs D complains Miss S should not have gone into a chargeable placement because there was no rehabilitation bed available. Mrs D says if Miss S had gone straight to the rehabilitation facility she would not have had to pay and it is not her fault there was no bed available. She also complains Miss S should have had a continuing healthcare assessment before leaving hospital, so she did not need to pay for the Care Home.
3. Mrs D believes Miss S should not pay for the Care Home and having done so, this has had a financial impact on her. Mrs D also explains the stress and anxiety of covering the bill has affected Miss S’s recovery and mental wellbeing. Mrs D is also frustrated with the organisations who have not been clear with her in their explanations during the complains process.
4. Mrs D would like the fees Miss S paid to the Council for the Care Home placement reimbursed. She would also like an acceptance from the organisations Miss S should not have been charged, and an apology.

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The Ombudsmen’s role and powers

5. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015 a single team has considered these complaints acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
6. 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)
7. 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.
8. The Ombudsmen cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
9. 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)

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How I considered this complaint

10. I considered the complaint Mrs D made to the Ombudsmen and information she provided on the telephone and by email. I considered the information the Council and Trust provided in response to my enquiries. I also considered additional information the organisations provided after an initial draft decision.
11. I shared a confidential draft with Mrs D, the Council and the Trust to explain my provisional findings and invite their comments on them. I will consider any comments I receive in response before making a final decision.

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What I found

Care Home placement, discharge process and funding

12. Miss S broke her hip and went to hospital in late October 2021. She needed physiotherapy and should have gone to a residential rehabilitation facility. Because of the COVID-19 pandemic, there was no bed available when she was ready to leave hospital. Miss S instead went to a Care Home in November 2021 for an interim stay.
13. Mrs D complains the Trust rushed the discharge process because it needed the bed and believes Miss S should not have gone into the chargeable Care Home bed just because there was no rehabilitation bed available. Mrs D also says Miss S was not aware she needed to pay for the Care Home and feels the organisation should have explained this before Miss S left hospital.
14. Miss S’s notes from her stay in hospital shows nurses, physiotherapists and doctors continually assessed her progress and noted her wishes. The notes show Miss S said throughout she wanted to go home. However, Miss S worried she may not cope because she had not regained the same mobility she had before the fall.
15. On 2 November, the notes show Miss S had a ‘moving assessment’, in which she was mostly dependant on staff to complete the exercises. The nurse advised they would repeat the assessment in three days. Also on 2 November, the Trust started to plan for Miss S’s discharge, with an expected date of 5 November. The assessing Therapist agreed Miss S would benefit from a stay in residential rehabilitation as they could not adapt her home for downstairs living. The rehabilitation would allow her to return to the functionality she was at before the fall and then she could return home.
16. Miss S did not want to go to a Care Home before she went for rehabilitation. She was clinically fit for discharge from the hospital bed but could not go home. Doctors agreed a respite placement was suitable until a bed in the rehabilitation unit became free.
17. The Trust’s notes show Miss S agreed to a ‘discharge to assess’ placement while she waited for a bed in the residential rehabilitation unit. The discharge to assess pathway is when a patient no longer needs to stay in hospital, but still needs short term care services either in their own home or in a community setting, such as a care home. It can also be used for short-term intensive support, such as residential rehabilitation.
18. It was the Council’s responsibility to find a placement for Miss S in a residential rehabilitation facility and the Trust gave it notes which said “therapist recommendations: would benefit from short stay in residential rehab to progress mobility and function, needs to be able to do stairs prior to discharge home as has no option for downstairs living”. It was therefore clear to the Council from before she left hospital Miss S could not go home.
19. The Council’s notes show on 3 November Miss S was offered an ‘out-of-area’ rehabilitation bed. They note Miss S “rejected out of area options and asked for rehabilitation to be closer to home. I discussed D2A beds and explained financial implications”. The note does not say which facility was discussed, how far from home it was or if it was explained to her clearly by refusing the out of area placement she may need to pay. I do not know what was discussed with Miss S and whether she fully understood the implications of her decision.
20. The Care and Support Statutory Guidance says “good record keeping is a vital component of professional practice… all agencies should keep clear and accurate records.” The Council has not recorded key information about why Miss S refused the placement. This is fault.
21. A social worker from the Council spoke to Mrs D on 4 November. The notes show the social worker discussed the financial implications and later the same day emailed Mrs D. The email had a leaflet attached which explained the financial implications for Miss S if she chose to go into a care home placement while she waited for a rehabilitation bed placement to become available.
22. Miss S left hospital on 9 November on the discharge to assess pathway 2. This was because she needed ‘rehabilitation in a bedded setting’. Miss S only went there while she waited for a bed to become available in the rehabilitation unit.
23. On 18 November, Mrs D raised concerns with the social worker about Miss S not receiving rehabilitation in the Care Home. This shows it was not clear to Mrs D why Miss S was in the Care Home. The social worker explained the Care Home could not give Miss S rehabilitation, but she was tenth in the queue for a bed in the rehabilitation unit.
24. The case notes show the discharge to assess funding ended on 7 December 2021 and after this Miss S paid for the placement.
25. I asked the Council why Miss S needed to pay for the placement if she was only in there because she could not go straight into a residential rehabilitation unit, especially as Miss S had no choice and could not return home. The Council said the Trust did not tell the social worker it was a respite placement. I asked the Trust about this and they confirmed the doctor did not use that language specifically, but they were clear Miss S could not go home and needed residential rehabilitation. The note quoted at 18 confirms the Trust was clear what Miss S needed.
26. The General Medical Council (GMC) provides guidance on the importance of working collaboratively. It says “it is essential for good and safe patient care that doctors work effectively with colleagues from other health and social care disciplines, both within and between teams and organisations.”
27. The UK Governments Hospital Discharge and Community Support Guidance explains NHS organisations and local authorities should work together to “determine what an individual needs and wants after discharge”. It also says they should work together to “plan, commission and deliver appropriate care and support”.
28. The Trust told the Council Miss S could not go home and needed a stay in residential rehabilitation. Miss S should not have been disadvantaged because there was no rehabilitation bed available when she left hospital. The Council had a responsibility to find her a placement. I have seen evidence it offered Miss S an out-of-area placement, but I do not have enough information to decide whether it was reasonable of Miss S to refuse this placement as the Council did not record all the relevant information. It is clear from everything I have seen Miss S wanted to go home but could not. She had no option but to go into a Care Home for an interim period; she did not have other feasible options to choose from. This is service failure.
29. The ‘discharge to assess’ discharge pathway allows for a maximum of six weeks funding after discharge from hospital. This allows professionals time to assess the longer-term care needs of the individual. However, section 4.9 of the Hospital Discharge Service: Policy and Operating Model says “on the rare occasion that a decision is not reached within this timeframe, the parties paying for the care should continue to do so until the relevant ongoing care assessments are complete. Whatever arrangements are agreed costs from week 7 cannot be charged to the discharge support fund and must be met from existing budgets. CCGs [now ICB] and local authorities should agree an approach to funding of care from the seventh week."
30. In Miss S’s case, there is no way assessments could have been completed in six weeks because she needed to have rehabilitation before any longer-term care needs could be considered. In normal circumstances, Miss S would have remained in hospital until the rehabilitation bed became available. Miss S had no other option, and she did not go to the Care Home for an assessment. She went as a ‘holding’ place before a suitable rehabilitation place became available.
31. The fault is with the Council who should have contacted the local ICB at the end of the non-chargeable period. The above guidance explains the ICB would have then worked with the Council to agree funding for the rest of Miss S’s interim stay in the Care Home. I have seen no evidence the Council contacted the ICB to discuss funding for Miss S’s care.
32. Miss S paid £773.84 to the Council for the time she spent in the Care Home. Having to find this amount of money at short notice caused her stress and anxiety which affected her physical recovery and mental wellbeing. This is an injustice to her as she should not have been charged; it was not her fault a bed was not available in the rehabilitation unit when she left hospital.
33. Mrs D also has an injustice; she questioned the fees paid by Miss S at the time and again during the complaints process. She believed Miss S should not pay the fees and made a complaint to the Council. The Council responded to say Miss S had to pay and it had explained this to Mrs D at the time.
34. In summary, the Trust discharged Miss S on a pathway that placed her at a disadvantage. It provided the Council with the information it needed to find a placement for Miss S but did not realise she would have to pay. The Council did not approach the local ICB to commission funding for the Care Home placement and instead charged Miss S for a stay she had no choice but to take. This caused an avoidable injustice to Miss S and to Mrs D.

Continuing Healthcare Assessment

35. Mrs D also complains Miss S did not have a continuing healthcare (CHC) assessment before leaving hospital so they do not know if she should have paid for the care home placement.
36. I reviewed Miss S’s hospital admission records and could find no reference to a CHC assessment, or pre-assessment taking place.
37. I asked the Trust to explain why it had not assessed Miss S while she was in hospital. It explained it is not the decision maker and because it was clear Miss S needed rehabilitation, it did not consider CHC because Miss S was not at her optimum. On the discharge paperwork given to the Council, the nurse advised if there was a need for further nursing consideration, the Council could request this. The Trust did not receive any request from the Council.
38. I asked the Council what it did when it received the referral from the Trust for Miss S. I also asked if it considered conducting a full CHC assessment for Miss S. It explained the Social Worker did not feel Miss S had any nursing needs and did not complete a CHC assessment. It acknowledges Miss S’s primary need was for rehabilitation and as she was not at her optimum, CHC was not considered further.
39. Mrs D asked the Council if it assessed Miss S for CHC funding in her complaint. In its final complaint response of 11 February 2022, the Council said “everyone in hospital is screened for CHC and in [Miss S’s] case she was screened but she did not trigger for an assessment because she did not have any identified primary health needs.”
40. The National Framework for NHS Continuing Healthcare and NHS-funded Nursing Care states ‘112. In order to ensure that unnecessary stays on acute wards are avoided, there should be consideration of whether the provision of further NHS-funded services is appropriate. This might include therapy and/or rehabilitation, if that could make a difference to the potential of the individual in the following few weeks or months.’
41. It further explains ‘there will be many situations where it is not necessary to complete a checklist. These include where: the individual has short-term health care needs or is recovering from a temporary condition and has not yet reached their optimum potential’.
42. The LGSCO’s Principles of Good Administrative Practice says organisations should be ‘open and clear about policies and procedures and ensuring information, and any advice provided is clear, accurate and complete.’
43. The Trust and the Council agree Miss S was not screened for CHC because she was not at her optimum. However, during the local complaints process, the Council told Mrs D the Trust pre-screened Miss S for a full CHC assessment, but this is not what happened. The Council was not clear with Mrs D about what happened. This is fault.
44. The information provided by the Council to Mrs D left her with further questions about what happened and whether Miss S was considered for CHC funding, and whether this was right. This is an injustice to her.
45. In summary, Miss S was not screened for CHC funding because she was not at her optimum. This is in line with guidance. However, the Council did not explain this to Mrs D when she made her complaint. This is fault which caused avoidable distress and frustration to Mrs D.

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Agreed Actions

46. The Ombudsmen recommended and the Council agreed that within one month of the date of the final decision it would;
• write to Mrs D to accept the faults identified in 12-34 and apologise for the avoidable frustration caused to Mrs D during the complaints process. A copy will be sent to the Ombudsmen,
• write to Miss S to acknowledge the fault identified in 12-34 and apologise for the avoidable distress caused to Miss S. A copy will be sent to the Ombudsmen,
• pay Miss S £773.84 – the amount she paid for the Care Home placement as well as £150; financial redress for the distress caused for paying for the placement which she should not have had to pay for
• pay Mrs D £150; financial redress for the distress caused in pursing the complaint on behalf of Miss S and for not realising it had made a mistake at local resolution level.
47. The Council also agreed that within two months of the date of the final decision it would issue a briefing note reminding complaints handling staff of the importance of being open and honest in its complaints resolutions. A copy of this will be sent to the Ombudsmen.

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Final decision

48. I partially uphold this complaint. I found fault which led to an avoidable injustice to Miss S and Mrs D. The agreed actions will provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman