Summary: We found the Council and HCRG Care Group failed to inform Mr C’s family that the care agency supporting him would be unable to do so on a long-term basis. This meant that, when the care agency withdrew care, Mr C’s family were given very little time to arrange alternative care. The Council and HCRG Care Group will apologise for this and pay a financial remedy to Mr C’s daughter, Mrs B, in recognition of the distress and uncertainty this caused. HCRG Care Group will also review its procedures to prevent similar problems occurring in future.

The complaint

1. The complainant, who I will call Mrs B, is complaining about the care and treatment provided to her father, Mr C, by Bath and North East Somerset Council (the Council), HCRG Care Group (HCRG) and Bluebird Care (the Care Agency – acting on behalf of the Council).
2. Mrs B complains that the Care Agency withdrew care from Mr C and gave the family very little notice to make alternative arrangements. Mrs B says she approached the Council and HCRG for assistance but received little help and was told she would need to arrange the care herself.
3. Mrs B says it became necessary for the family to arrange an emergency hospital admission for Mr C as he could not be safely cared for at home without a care package. Mrs B says Mr C’s condition deteriorated rapidly in hospital and he died.

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The Ombudsmen’s role and powers

4. 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).
5. 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.
6. 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)
7. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the organisations followed the relevant legislation, guidance and the Local government and Social Care Ombudsman (LGSCO’s) published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

8. In making my final decision, I considered information provided by Mrs B and discussed the complaint with her. I also considered information and records provided by the organisations Mrs B is complaining about. I took account of relevant legislation and guidance. In addition, I considered comments from all parties on my draft decision statement.

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What I found

Relevant legislation and guidance

COVID-19 discharge

9. In response to the COVID-19 pandemic in early 2020, the Government issued new guidance on hospital discharge to the NHS and councils, called “Hospital Discharge Service: Policy and Operating Model” (the discharge guidance). The Government updated the guidance in August 2020. This was the guidance that applied at the time of Mr C’s discharge from hospital in July 2021.
10. The discharge guidance set out a new ‘discharge to assess’ model. Under this model, hospitals were required to discharge patients as soon as it was clinically safe to do so.
11. The discharge guidance also set out that the Government (via the NHS) would fully fund the cost of new or extended social care support for up to six weeks following discharge. This was to enable local authorities and Clinical Commissioning Groups to assess a person’s longer-term care needs, at which point the person’s care would move to normal funding arrangements.

COVID roles and responsibilities

12. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. The Council remains responsible for those services and for the actions of the organisation providing them. (Local Government Act 1974, section 25(7), as amended)
13. Social care services under the discharge to assess model were provided further to the duties of local authorities under Section 19 of the Care Act 2014. This is the section of the Act which relates to the power of a local authority to provide social care services without an assessment in an urgent situation. Regardless of the funding arrangements therefore, the provision of social care during this period remained a local authority function.
14. This means the Care Agency was acting on behalf of the Council as a social care provider for the purposes of Mr C’s package of care.

Continuing Healthcare funding

15. Continuing Healthcare (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’.
16. A person’s local Clinical Commissioning Group (CCG) is responsible for assessing their eligibility for CHC and providing the funding. CCGs sometimes commission other NHS organisations to carry out the assessments on their behalf.
17. The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care (the National Framework) is the key guidance about the CHC process.

Key facts

18. Mr C was discharged home on 20 July 2021 with a package of care following a hospital admission for delirium. The discharge was managed under the COVID-19 discharge to assess model.
19. Mr C’s care package was arranged by HCRG and provided by the Care Agency. It consisted of four daily care visits by two carers, along with waking night care by a single carer. The care package was put in place for an initial six-week period and was funded by the NHS.
20. An HCRG Occupational Therapist (OT) and physiotherapist visited Mr C and his family at home later that day. They determined Mr C would likely need long-term care visits. Mrs B said she thought it was likely Mr C would need to fund his own care once the NHS-funding period ended. However, Mrs B said she hoped to arrange for Mr C to have a CHC assessment.
21. On 22 July, an OT spoke to Mrs B. She explained that it would be necessary to begin arrangements for Mr C’s long-term care. However, Mrs B was concerned it was too soon after discharge to accurately assess Mr C’s long-term needs.
22. The OT and physiotherapist visited Mr C at home again on 27 July. They found Mr C had limited potential for rehabilitation due to his cognitive difficulties. Mrs B provided consent for a financial assessment as part of the planning for Mr C’s long-term care.
23. On 13 August, Mrs B contacted HCRG as she was concerned Mr C did not have sufficient care in place. Mrs B also queried how Mr C’s care would be funded once the COVID-19 funding arrangements ended.
24. A social worker contacted Mrs B later that day. The social worker also explained that Mr C’s case had been allocated to a finance officer to complete a financial assessment. In addition, the social worker said she would ensure a CHC referral had been made.
25. The social worker visited Mr C on 18 August to begin a Care Act assessment. She also spoke to Mrs B. The notes show they discussed the possibility of a care home placement. However, Mr C’s family was keen to keep him at home as long as possible. The social worker noted that Mrs B was keen to explore CHC funding. The social worker said she would speak to the HCRG reablement team to see whether COVID-19 funding could be extended until a CHC assessment had been completed.
26. On 23 August, the Care Agency contacted the HCRG reablement service to discuss an end date for its involvement with Mr C. An HCRG officer said Mr C would require care on a long-term basis. She asked whether the Care Agency would be interested in providing this care. However, the Care Agency officer said the company would end its involvement with Mr C at the end of the six-week discharge to assess period.
27. The Care Agency contacted Mrs B on 24 August to advise that 1 September would be the final day on which it could provide care.
28. The HCRG reablement service informed the social worker that day. The social worker contacted five care homes to explore the possibility of a placement. Mrs B told the social worker she was concerned about placing Mr C in a care home without proper planning. She agreed to speak to Mr C’s GP to see whether he could arrange admission to a community hospital.
29. Mr C was initially scheduled for admission to the local community hospital on 27 August. However, a shortage of available ambulances meant he was not admitted until 28 August.
30. Mr C died in hospital on 15 September.

Analysis

31. Mrs B complained that the Care Agency withdrew care from Mr C and left the family with only three working days to make alternative arrangements. Mrs B said neither the Council nor HCRG provided meaningful assistance and that Mr C had to be admitted to hospital as an emergency.
32. In its complaint response, HCRG said the Care Agency had given seven days’ notice and so had met its contractual obligations. HCRG said it made every effort to explore alternative care providers but a lack of available care provision in the area meant this was not possible.
33. The case records show Mr C was discharged with a temporary six-week package of care under the COVID-19 ‘discharge to assess’ scheme. This was to allow for an assessment of his long-term care needs, including whether he would be eligible for CHC funding. HCRG arranged for the Care Agency to provide this care.
34. The terms of the Care Agency’s contract required it to provide seven days’ notice if it wished to terminate Mr C’s package of care. The case records show the Care Agency gave notice on 24 August, with a proposed final care visit on 1 September. This was a notice period of seven days. As a result, I am satisfied the Care Agency met its contractual obligations and I found no fault by the Council on this point.
35. However, I do have significant concerns about the communication in this case, both between the professionals involved in Mr C’s care and with his family.
36. In its response to my enquiries, the Care Agency said it only agreed to provide the temporary six-week care package. The Care Agency explained that the impact of the pandemic on staffing levels meant it was unable to take on long-term care packages at that time. The Care Agency said this was recognised by the professionals involved in Mr C’s care.
37. The care records show the professionals supporting Mr C spoke to his family on several occasions. The notes of these conversations reveal discussions about various aspects of his long-term care. This included discussions around long-term funding and the possibility of a care home placement.
38. However, I found no evidence in the care records to suggest the Care Agency explained to Mr C’s family that it would be unable to support him after the conclusion of the six-week temporary care package.
39. Indeed, I am not persuaded the records support the Care Agency’s position that other professionals were aware this was the case. This is demonstrated by notes of conversations between Council, HCRG and Care Agency officers.
40. For example, an OT from the HCRG reablement team spoke to the social worker on 18 August. She noted that she “[r]equested that [the social worker] recommends to [Mr C’s family] they carry on with Bluebird as they know the patient and to find this level of [package of care] with another agency at this time will be very difficult.” This strongly suggests the HCRG officer understood the Care Agency would be able to continue with the care package. The evidence shows it was not until 23 August that HCRG became aware this was not the case.
41. Regulation 9 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 relates to person-centred care. This regulation sets out that care providers must involve a person, or a person lawfully acting on their behalf, in the planning and management of their care. This includes a responsibility to share information and support to enable that person to make informed decisions about their care.
42. The evidence I have seen suggests there was significant confusion among the professionals supporting Mr C as to whether the Care Agency could provide him with care on an ongoing basis. This in turn meant Mr C’s family were not informed that the Care Agency’s involvement would end at the conclusion of the six-week discharge to assess period.
43. The Care Agency (acting on behalf of the Council) and HCRG had a shared responsibility to ensure Mr C’s family were provided with the information they needed to make informed decisions about his care. They failed to do so in this case. This was fault.
44. The situation was not clarified until 24 August. By that point the social worker and Mrs C’s family were left with very little time to secure alternative care arrangements.
45. The height of the COVID-19 pandemic represented a particularly challenging period for community health and social care providers. This is because many struggled to maintain staffing levels during this period. This in turn affected the ability of commissioning organisations (such as the Council) to offer their usual range of services in the community. The complexity of Mr C’s care needs and the extent of the package of care required to meet them presented further challenges for the Council and HCRG.
46. This means I am unable to say, even on balance of probabilities, whether it would have been possible to source an alternative domiciliary care provider even if communication had been better.
47. Nevertheless, this would have allowed the Council and family a greater opportunity to explore alternative care options (such as care home placements) and may have prevented the need for Mr C to be admitted to hospital. This has left Mrs B with significant uncertainty as to whether the outcome of Mr C’s care would have been different if the Council and HCRG had acted without fault.

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Agreed actions

48. Within one month of my final decision, the Council and HCRG will:

• write to Mrs B to apologise for their failure to inform her that the Care Agency would not be able to support Mr C after the conclusion of the six-week discharge to assess period; and
• each pay Mrs B £200 in recognition of the impact of this fault on her in terms of distress and uncertainty.

49. Within three months of my final decision, HCRG will review its policies and procedures to ensure there is a clear process in place for keeping patients and their families informed during the care planning process. This should include providing clarity around the duration and funding of any package of care.

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Final decision

50. I found the organisations involved in Mr C’s care failed to inform the family that the Care Agency would no longer be in a position to provide care following the conclusion of the discharge to assess period. This was fault.
51. In my view, the actions the Council and HCRG have agreed to take represent a reasonable and proportionate remedy for the injustice caused to Mrs B.
52. I have now completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman