Summary: Mr P complained about his mother-in-law Mrs D’s discharge from hospital, about how the Council arranged her social care, and about the way his complaint was handled. The Ombudsmen find fault with the way the Trust and Council arranged Mrs D’s hospital discharge, with the Council’s actions following this, and with the way the complaint was handled. The Trust and Council have agreed to take action to remedy the injustice this caused.

The complaint

1. Mr P complained for him and his wife Mrs P about the care provided to his late mother in law, Mrs D, by Worcestershire County Council (the Council) and Worcestershire Acute Hospitals NHS Trust (the Trust).
2. Mr P complained about the way in which staff discharged Mrs D from hospital to a care home (Willow Bank House) in 2014. He also complained that the Council:

• failed to review Mrs D’s needs following this
• failed to pursue an application to the Court of Protection for a deputyship for Mrs D
• failed to charge Mrs D and her estate correctly for her care
• failed to handle their complaint adequately.

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What I have investigated

3. I have investigated all the complaint except for Mr P’s concerns about a safeguarding referral and a consideration of Mrs D’s eligibility for Continuing Healthcare. I have explained why at the end of this statement.

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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)). If it has, they may suggest a remedy. 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. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting for both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
6. The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
7. Mr P raised his concerns about the hospital discharge in 2014 and received an informal response. He says he told the Trust he was not happy with the response, but the Trust did not refer him to the Ombudsmen. For the following months, Mr and Mrs P were preoccupied with matters relating to Mrs D’s care. After her death in August 2015, they realised that many of the later problems stemmed from the hospital discharge in 2014. They became aware of some of the events they complain about in October 2015. They complained to the Council, about the care provided by both the Council and the Trust, in February 2016. Mr and Mrs P tried to pursue the matter through the complaints process from then until November 2017, when the Council said it had nothing more to add. Then they brought their complaint to the Ombudsmen.
8. We have decided to exercise our discretion to investigate this complaint even though it is late. This is because we consider that there is a satisfactory explanation for the delay, and because we consider that it is in the public interest to investigate.
9. We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), as amended)
10. 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

11. I considered information provided by Mr P in writing and by phone. I considered information provided by the Trust and the Council, including the health and social care records and complaint files.
12. I shared a draft of this decision with the parties to the complaint and considered their comments.

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What I found

13. Department of Health guidance: Ready to go? Planning the discharge and the transfer of patients from hospital and intermediate care (March 2010), (the ‘Ready to go guidance’) is the core guidance around hospital discharge. It contains ten key steps for staff to follow during discharge planning, including:

• start planning for discharge or transfer before or on admission;
• identify whether the patient has simple or complex discharge and transfer planning needs and involve the patient and carer in your decision;
• involve patients and carers so they can make informed decisions and choices that deliver a personalised care pathway and maximise their independence.

The Trust’s discharge policy

14. This says staff should ask carers or relatives to bring the patient’s own clothes before discharge to maintain the patient’s dignity and make sure they are properly dressed for discharge.

Policy for urgent and unplanned placements in care homes

15. This policy says the local service is managed by the Council, and jointly funded by the NHS. To avoid unnecessary hospital admissions, placements are made for up to 14 days to allow a longer term care plan to be made. Placements can only be made when the person does not need hospital admission but cannot go home, and they or their representative have agreed.
16. The Council’s brokerage team is responsible for finding the placements. Admissions to the placements should not happen after 8pm or before 8am on any day.
17. Social workers will provide the placement with relevant medical and social care assessments, consent forms, and essential medication when the person is admitted to the placement.
18. Health and social care assessments should start within 3 days of the person’s admission to the placement, and must be completed within 7 days.

Mental Capacity Act

19. 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.
20. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made for 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 result.
21. If there is a conflict about what is in a person’s best interests, and all attempts to resolve the dispute have failed, the Court of Protection might be asked to decide what is in the person’s best interests.
22. Where an individual lacks mental capacity to manage their property and financial affairs then a third party will need legal authority to manage finances on their behalf.

Court appointed Deputies

23. If there is a need for ongoing decision-making powers and there is no Power of Attorney, the Court of Protection may appoint a deputy to make future decisions. It will state what kinds of decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian (OPG) produces detailed guidance for deputies.

Community care assessments

24. Before the Care Act 2014 came into force on 1 April 2015, the relevant law was as follows:
25. A council had to carry out an assessment of need where it appeared an adult may be in need of community care services.(NHS and Community Care Act 1990, section 47). Councils should review an assessment at least yearly or on request or after a change in circumstances. (Prioritising Need in the Context of Putting People First, paragraph 144)

Choice of residential accommodation

26. The Department of Health’s Local Authority Circular (2004)20 and the Charging for Residential Accommodation Guidance (CRAG) set out the guidance in place before the Care Act came into force, and the Care and Support Statutory Guidance 2014 set out the guidance from 1 April 2015.
27. Under both sets of guidance, councils have to arrange placements in the person’s preferred care home if it is available, suitable, and does not cost the council more than the council would normally expect to pay for a person with those needs.
28. On request, the council must arrange accommodation in a more expensive place provided a third party is willing and able to pay a ‘top up’. This is the difference between what the council would usually pay and the cost of the accommodation. If the person is subject to the 12 week property disregard or they have agreed a deferred payment agreement with the council, the resident can pay the top up themselves. In cases where there is a deferred payment agreement, the top up is added to their deferred contribution.
29. Councils should explain top up arrangements to residents and third parties in writing, and make clear that failing to pay top ups will result in the person having to move to cheaper accommodation unless an assessment shows their needs can only be met in the current accommodation.
30. Councils must satisfy themselves that the third party or resident have the resources to continue to pay top up fees.
31. If the person does not prefer more expensive accommodation but there is no available accommodation at the time at the council’s usual rate, the council must make the placement in more expensive accommodation. In these circumstances, the council must pay the difference and cannot charge it to the resident or third party as a top up. This applies both to temporary and permanent residential accommodation.
32. That a care home is registered to provide the relevant services does not necessarily mean it is suitable for the individual’s needs.
33. People with more than £23,250 in capital are not eligible for assistance towards care home costs from their local Council. But if someone lacks capacity to manage their financial affairs and there is no Deputy or Attorney to manage their finances then the Council must ensure their care needs are met. They may charge the person for this.

Joint consideration of complaints

34. Under The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 (the ‘Complaints Regulations’) there is a duty to investigate complaints properly and in a way that will resolve them efficiently. The organisation should respond within six months, unless they agree a longer period with the complainant. They should provide a written response, which should include an explanation of how the complaint was considered, the conclusions reached, any remedial action necessary, and details of the complainant’s right to pursue the matter with the relevant Ombudsman.
35. There is also a duty to cooperate when a complaint is made to one organisation and contains material relevant to the other. The Complaints Regulations say that the organisations must “co-operate for the purpose of (a) coordinating the handling of the complaint; and (b) ensuring that the complainant receives a coordinated response to the complaint.” This involves a duty on each of them to agree who should take the lead in coordinating the handling of the complaint and communicating with the complainant. They must both provide each other with relevant information if requested by the other and must attend, or ensure they are represented at any meeting held about the complaint.

The Council’s complaints procedure

36. Under the Council’s complaints procedure, the manager in charge of investigating the complaint should contact the complainant within five working days. They should consider meeting with them to discuss their concerns and identify actions to resolve them. Even if the complainant is satisfied after the meeting, the manager must write to them outlining what was discussed at the meeting and the agreed actions. Where the matter is complex or relationships have broken down, the Council should consider arranging a formal conflict resolution or mediation meeting.

The Trust’s complaints procedure

37. Under the Trust’s policy from 2014, the Patient Advice and Liaison Service (PALS) service mainly deals with concerns raised verbally which they can resolve by the end of the next working day. Any other matters are classed as complaints. The policy defines complaints received within the time limit as formal complaints, and those received outside the time limit as informal complaints. Formal complaints should be investigated within 25 working days or within a timescale agreed with the complainant. Informal complaints should be investigated within 25 working days. If there is no need for further investigation, the director will write a response within five working days. Otherwise, the Trust will fully investigate the complaint and complete an investigation report and action plan. If the complainant raises further concerns after the response, they will receive a further response within 25 working days.

Complaint about the hospital discharge

Complaint and response

38. Mr and Mrs P said Mrs D went to hospital on 19 May 2014 following a fall. A nurse phoned Mr P the next day to say they would transfer her to a community hospital that afternoon. Then they got a phone call from staff at Willow Bank House about 23:00 that evening to say Mrs D was there. They needed information about Mrs D because they did not have any paperwork about her care or medication. Mr and Mrs P visited the next day and found that Willow Bank House was a care home specialising in people with advanced dementia, which Mrs D did not have. They found Mrs D traumatised and terrified. Other residents were wandering and agitated. Many wore soiled and wet clothes. Mr and Mrs P found it hard to find a seat which was not wet with urine. They said Mrs D was treated poorly at Willow Bank House and left for long periods of time. Then the power went off, so there were no lifts, heating or hot water. Mr and Mrs P said they believe this discharge caused Mrs D lasting harm from which she did not fully recover.
39. A matron from the Trust wrote to Mr P on 21 July 2014 following a meeting between Mr P, the matron, and the hospital social work manager (Officer C). The letter said the matron "accepted that the lack of communication around the discharge arrangements could have been much better”. The matron apologised and said she would discuss the matter with the nursing team. I have not seen any record of what Officer C said in the meeting.
40. The Council’s responses to the complaint said a hospital social worker spoke with Mr P about discharging Mrs D to a residential or nursing home during the morning of 20 May, and he was happy with this. It said Mrs P rang the Council on 24 May to say she was unhappy with Willow Bank House and wanted to move Mrs D to Care Home A. The Council apologised that it did not return her call until 26 May, by which time Mr and Mrs P had moved Mrs D to another care home (Care Home A). It said it had identified some concerns about the care at Willow Bank House but apologised that it had not shared these with its care quality team. It said it would follow an “appropriate management process” about the failure to make a safeguarding referral about the care at Willow Bank House. However, it found no evidence that either the CQC or the Council recommended suspending or restricting placements to Willow Bank House.

Findings and analysis

41. Before her hospital admission of 19 May 2014, Mrs D lived at home with support from carers. Her social worker (Officer B) noted concern about her confusion and ability to retain information to make decisions. He spoke with Mr and Mrs P about arranging a respite placement for her.
42. The hospital notes of 19 May say Mrs D was confused and unsteady on her feet. A social worker from the Rapid Response Team (the RRT) saw Mrs D. They wrote that Mrs D could probably leave hospital that day. Though Officer B had planned to arrange a respite placement, none had been found, so Mrs D needed an urgent placement. They asked the Council’s brokerage team to find one, with funding approved for one week.
43. On 20 May the RRT worker called Mr P and told him Mrs D would need to be transferred that day. Mr P says the RRT told him Mrs D would go to a “community bed”, which he took to mean the community hospital Mrs D had spent time in previously. The RRT wrote that they told Mr P that once a bed was found either they or the NHS staff would contact him, as transport, prescriptions and a discharge letter would need organising.
44. The RRT records say at 16:00 they found out that Willow Bank House could accept Mrs D that day. A staff nurse said they would liaise with Mrs D’s family and make the arrangements. The hospital records say staff gave a verbal handover to the nurse at Willow Bank House, and Mrs D’s son knew she was urgently placed at Willow Bank House for the social worker to make further arrangements.
45. I consider that as Mrs D was confused in hospital, the staff involved with her discharge should have assessed her capacity to decide where she was discharged to. If she did not have capacity to decide this, they should have made a best interests decision, following the legal process. That would have involved proper consultation with her family.
46. I have seen no evidence that either the Trust or the Council considered Mrs D’s capacity to make decisions about her discharge. This was fault. Based on the evidence within the hospital records and the social care records, I consider it more likely than not that Mrs D lacked the capacity to make decisions about her discharge at the time. Neither the Council nor the Trust could make decisions for her without properly considering her best interests, in line with the Mental Capacity Act.
47. I do not accept the Council’s position that Mr P was happy with Mrs D’s discharge to Willow Bank House. I accept his recollection, explained to the Trust a few days later, that staff told him she would go to “a community bed”, and that he reasonably took this to mean the community hospital. Further, it was not for Mr P or other members of the family to make decisions for Mrs D. They could only contribute to a best interests decision.
48. Therefore, I find that the Trust and Council discharged Mrs D to Willow Bank House without her consent and without having established that this was in her best interests. This is fault.
49. An ambulance collected Mrs D from hospital at 20:30 and she arrived at Willow Bank House at 20:45. Willow Bank House’s records say Mrs D was confused and agitated when she arrived. They got information about her from her next of kin, verbally. Mrs P said Willow Bank House called them about 23:00 to ask for this, which was the first they knew about Mrs D going to a care home.
50. The following afternoon, the hospital faxed Mrs D’s discharge summary to Willow Bank House. Mr and Mrs P visited Mrs D there. They said they found her confused, extremely distressed, and still wearing a hospital gown.
51. I find that the Trust discharged Mrs D to Willow Bank House later than the policy for unplanned placements allows, without her clothes and personal belongings, and without providing the necessary documentation about her needs. This is fault.
52. I asked the Council how it satisfied itself that Willow Bank House was an appropriate placement for Mrs D, considering the known concerns about the quality of the care there at the time. The Council said at the time Mrs D went there, it was not taking any “compliance action”, and there were no restrictions on admissions. It said it did not start compliance work with Willow Bank House until 2016. It also said it visited Willow Bank House for health and safety checks in 2014 and in relation to staffing and management from 2013-2015 but it did not consider that its findings warranted a suspension on placements or compliance action.
53. In a critical report about the care provided by Willow Bank House, the Care Quality Commission (CQC) reported in December 2013 that it had referred its concerns about Willow Bank House to the Council’s safeguarding team. In a further report of 9 May 2014, the CQC reported that it had inspected Willow Bank House again and found no improvement.
54. There is evidence that at the time Mrs D went to Willow Bank House the Council knew about poor quality care there. Therefore, the Council should have worked with Willow Bank House to make improvements, and considered the risks of continuing to discharge people there. The Council has not provided adequate assurances that it addressed the concerns highlighted by CQC, and has not provided evidence that it considered the risks of continuing to place people there. Therefore, I find fault with the Council.
55. In summary, the Council and Trust discharged Mrs D without consent to a care home known to be providing poor care, late in the evening, without her clothes, and without providing adequate information to the care home promptly. I accept that this caused significant distress to Mrs D and compromised her dignity. This is an injustice to her. I also accept that this caused significant distress to Mr and Mrs P. This is an injustice to them. It is understandable that they arranged to move Mrs D to Care Home A as soon as they could.

Complaint about a failure to review Mrs D’s needs after the hospital discharge

Complaint and response

56. Mr and Mrs P said after they moved Mrs D to Care Home A on 24 May 2014 the Council failed to review her care needs until April 2015. After it assessed on 5 June 2014 that Mrs D had lost capacity to make decisions about her finances and accommodation, the Council left her marooned at the Care Home A, when this was meant to be a temporary place of safety. This caused a lost opportunity to make choices about her care. It also caused distress, disruption and financial loss to Mr and Mrs P.
57. The Council’s response said there was a review meeting for Mrs D at Care Home A on 5 June, where capacity assessments were done. Officer B and his manager visited again on 28 July 2014 for further capacity assessments. Then, no one from the Council visited her until 2 April 2015. The Council said a social worker should have visited Mrs D regularly.

Findings and analysis

58. It is not in dispute that when Mrs D left hospital she needed to be in a care home at least until longer term plans were made. Under the policy for urgent and unplanned placements, she should have had a social care assessment within 3 – 7 days. This should have happened regardless of the family moving her from Willow Bank House because of the problems there.
59. The records Officer B made following the meeting on 5 June says Mrs D needed to be in a care home, that he would complete a social care assessment and that they would have another meeting about her long term care options.
60. There is evidence of frequent contact between Officer B and the family in the following weeks, in which they discussed the costs of Mrs D’s care and the family seeking alternatives.
61. The Council agreed to pay for Mrs D’s care at its banding rate (the amount it would usually expect to pay) until the deputyship was in place. Officer B noted that “it was not clear which member of family would commit for signing the top up agreement”. Care Home A’s weekly charge was just under £300 more than the Council’s banding rate.
62. Officer B completed a social care assessment for Mrs D in early July 2014, which concluded that she needed long term residential care. However, about where Mrs D should receive the care, the assessment says only that the Council would pay its banding rate. If a care home charged more either the family would have to pay a top up fee or Mrs D would need to move to a home which did not charge one. Officer B did not record any consideration of whether moving from Care Home A, where he noted she had settled well and made friends, was in Mrs D’s best interests.
63. Mrs D could not decide herself where she should live, and no one else had legal authority to decide for her. Therefore, the Council should have ensured there was a best interests decision about where she should live. This would have included considering the impact on her of moving elsewhere from Care Home A, before making plans to seek cheaper placements. It could also have considered any impact on Mrs D of the higher cost of staying at Care Home A.
64. The Council’s records show that the family were concerned from early July that moving Mrs D to another care home would confuse and distress her. It therefore appears that at the time the family felt it was in her best interests to stay at Care Home A. The Council funded the placement at Care Home A as a long term placement from July. But the Council did not consider this properly using the best interests process.
65. I find that the Council is at fault for taking too long to complete the social care assessment and for failing to follow the best interests decision making procedures about where Mrs D should live.
66. I have not seen evidence that this caused an injustice to Mrs D. However, the Council’s failure to properly manage the process and communicate the options to Mr and Mrs P caused them significant time, trouble and inconvenience.

Complaint about the Council not pursuing the deputyship application quickly enough

Complaint and response

67. Mr and Mrs P said on 4 August 2014 the family met with the social worker and they agreed the Council would apply for the deputyship for Mrs D. Then on 16 December 2014 the Council called to ask how the application was going. From this, they realised the Council had done nothing to progress the deputyship application. They changed their travel plans to stay in the UK so they could apply for the deputyship themselves. Then, the Council refused to visit Mrs D at Care Home A to carry out the new assessment of Mrs D’s capacity they needed. They had to engage a consultant in elderly care privately to do the assessment. The deputyship was not in place when Mrs D died in August 2015.
68. The Council’s response said that in August 2014 it asked the family to apply for deputyship. Following various emails from Mr P, it transpired that no member of the family would do this. Officer B told Mr P on 8 October 2014 that the Council would apply for the deputyship. Then its finance team rang Mr P on 16 December 2014 to say the application was delayed because they were having difficulty getting information about Mrs D’s finances. The Council said it rang Mr P on 7 January 2015 asking for the financial information it had asked him for in December. Mr P said he would apply for the deputyship as he believed Mrs D had enough savings to pay for her care, and that he would stay in the UK until the paperwork was complete. It said Mr P contacted it on 5 February to ask for a new capacity assessment for the deputyship application. A social worker contacted him on 4 March to arrange this, however by that time Mr P had arranged to purchase the capacity assessment privately from a consultant. The Council said it partly upheld the complaint due to the time it took to reallocate Mrs D’s case for the new assessment.

Findings and analysis

69. There is conflicting information about what was agreed at the meeting of 4 August 2014, and I cannot resolve this further.
70. However, the Council received an email from Mr P on 9 September which said he had no information about Mrs D’s finances and asked the Council to apply for the deputyship. It then took Officer B a month to email colleagues in the deputyship team to ask them to apply for the deputyship for Mrs D. This was a delay.
71. On 13 November, the Council’s finance team emailed Officer B to say they could not proceed without financial information. They wrote “I see the family are being obstructive regarding finance info…”. I have seen no good cause for the Council to consider that Mr and Mrs P were being obstructive. They had told the Council they did not have Mrs D’s financial information, and the Council knew they lived abroad so it would likely be harder for them to get it. There is no evidence that the Council gave them advice about how they might proceed in the circumstances.
72. Mr P said when the Council called him on 16 December it asked how the deputyship application was going, and they learned through this that the Council had taken no action to apply for the deputyship. He said the Council told him it did not have any information about Mrs D’s finances, and he did not have this either The Council’s electronic notes say it now seemed likely that the Council would need to apply for deputyship, and that the finance team was having difficulty getting financial information for Mrs D. But I have not seen evidence of attempts by the Council to gather this information.
73. After Mr and Mrs P asked the Council for a capacity assessment for Mrs D on 5 February, it took the Council a month to respond. This was a further delay.
74. I find that the Council caused excessive delays with the deputyship application from September onwards. I do not consider that this caused Mrs D an injustice. For the reasons explained above, Mrs D was not marooned at Care Home A because of the lack of a deputyship. She could have moved elsewhere without the deputyship if a best interests decision making process concluded that it was in her best interests for her to do so.
75. However, I accept that, on top of the other problems they experienced with the Council, this caused Mr and Mrs P frustration, and caused them to lose confidence in the Council to the extent they made significant changes to their plans. This frustration and disruption is an injustice to them. Also, Mr and Mrs P paid for a private capacity assessment because of the Council’s failure to respond in a timely way. This financial loss is a further injustice to them.

Complaint about the charges for Care Home A

Complaint and response

76. Mrs P’s first complaint to the Council said about the charges that the situation was not straight forward. Several issues meant Mrs D and her family could not make choices about her care. Mrs P said she had calculated the amount Mrs D would have paid for her care if she had paid contemporaneously. This would have been less than half the amount on the invoices the Council sent them. She said they put this amount in a separate account. However, they sought compensation for the matters they complained about.
77. The Council did not address the matter of the charges in its complaint response.

Findings and analysis

78. Mr P told us the Council agreed to fund Mrs D’s placement at Care Home A while the deputyship was progressed. However, it did so at the private rate, even though it funds several other residents there at the Council’s banded rate. He said Mrs D’s estate was charged more than it should have been for her care. The invoices from the Council did not take into account that had she paid contemporaneously she would soon have dropped below the threshold. They included a top up fee, which Mrs D should not have had to pay.
79. I have not considered whether other residents were charged a different rate, because I do not consider that to be relevant to what Mrs D was charged. I have considered the way the Council made decisions about what Mrs D was charged for her care.
80. After Mr and Mrs P moved Mrs D to Care Home A, the Council repeatedly asked them to pay a top up fee, until mid-July 2014. It had no basis for doing so. Families can be asked to pay a top up when a council has arranged a placement in more expensive accommodation at the person’s request, when they have declined suitable alternative accommodation at the rate the council would pay. These were not the circumstances of Mrs D’s placement at Care Home A. Mrs D moved to Care Home A on an emergency basis from Willow Bank House because of significant problems there. Therefore, Mrs D needed to be in care and the Council had not made suitable alternative accommodation available at its banding rate.
81. In its response to Mrs P’s complaint, the Council said it was agreed at a meeting on 5 June 2014 that Mrs D’s family would pay any top up costs because she would need someone to apply for a deputyship to manage her finances.
82. In support of this assertion, the Council provided two highlighted extracts from its case notes. The first is dated 6 June 2014, and refers to the family asking Mrs D to write a cheque to pay £1700 for the two weeks of her care at Care Home A. This was so Care Home A would accept her there. The second shows that Mr P verbally agreed to pay a top up fee for 19 June to 3 July 2014, to give them more time to look for alternative care homes. I have seen no evidence that the family otherwise agreed to pay the top up. I have seen many entries in the case notes where the family told the Council they would not pay the top up. Therefore, the Council’s response does not reflect the records. Further, whether Mrs D needed a deputyship had no bearing on whether a top up fee was payable.
83. The Council said the family later declined a placement at Care Home Z, which charged the banding rate. Mr P visited Care Home Z on 3 July, after discussion with Officer B. Officer B’s notes say Mr P told him he “wouldn’t put [his] worst enemy” at Care Home Z, that he was concerned about the risk of Mrs D falling at Care Home Z, and that the family felt moving Mrs D would “totally confuse her”. Mr P told me Care Home Z was unsuitable because it was a first floor room with a stair lift with no belt, the ground floor rooms all had different levels or steps, and Mrs D was at very high risk of falls.
84. On 16 July 2014, the brokerage team found a vacancy at a home at the banding rate, and vacancies at two homes with smaller top ups. The records say three placements were offered to the family but Mr P felt moving Mrs D would disturb her. Mr P says the Council did not discuss any other placements with him except Care Home Z. There are no records of phone calls or emails with Mr P in which the alternative placements were discussed.
85. I do not consider that the Council has shown that available suitable alternative accommodation at the banding rate was offered. Further, as noted above, moving Mrs D elsewhere could only have followed a decision that her needs could be met elsewhere and it was in her best interests to move.
86. Since Mrs D could not enter into a contract and no one could do so for her, the Council should have taken responsibility for the full cost of care at Care Home A from the outset, subject to later financial assessment. Mrs D was responsible for paying the full cost of her placement while she had savings over £23,250. The Council provided me with a copy of bank statements showing that Mrs D had around £36,000 at the start of these events. Had Mrs D paid for her own care contemporaneously, she would have dropped below the savings threshold and become eligible for financial assistance from the Council around September 2014. Even if the Council had properly established then that Mrs D could move to a cheaper care home, it could not have charged a top up fee for Care Home A because no one was willing and able to pay it.
87. Mr P told me the Council could have negotiated the amount payable with Care Home A. On 23 July Officer B recorded that he asked the brokerage team to purchase a placement at Care Home A. The brokerage team told him not to contact Care Home A because the brokerage team could negotiate with it about the cost. However, there is no record that it did so. Therefore, the Council failed to take the opportunity to try to reduce the costs.
88. Mr P told me that until they got the invoices from the Council, they thought the Council was paying the banding rate to Care Home A, not including the top up. The Council wrote to Mr P on 25 July 2014 to say it would pay the banding rate to Care Home A. I have seen no correspondence from the Council to Mr or Mrs P explaining that the Council was paying the full rate to Care Home A, which it was.
89. Therefore, the Council failed to properly communicate with Mr P in writing about the arrangements. However, I note that in September 2014 Mr P said in an email to the Council that he expected a refund of the two weeks top up fee he paid, since the Council had agreed to fund Mrs D’s care until the deputyship was in place. That indicates he knew at the time that the Council was paying the full amount.
90. The Council sent Mrs P an invoice for Mrs D’s care totalling £40,783.41. This was for the full fee for Care Home A for 3 July 2014 to 9 August 2015, plus a further £321.41 for 6-20 June 2014 which is not explained. The charges were subject to financial assessment, and the Council sent Mr and Mrs P a financial assessment form which they delayed completing because they did not consider it suitable for the circumstances. However, there is no evidence that the Council properly considered whether it should include the top up fee in the invoices.
91. I find fault with the Council for

• Incorrectly claiming the family had to pay a top up fee for Care Home A when Mrs D moved there, when they did not
• Failing to follow its plan to negotiate with Care Home A over the weekly cost
• Failing to adequately communicate with Mr and Mrs P about what it was paying Care Home A
• Failing to properly consider whether it could charge a top up fee for Care Home A once it was a long term placement.

92. As a result of these faults, the Council caused Mr and Mrs P the financial loss of the two weeks top up Mr P paid, and significant time, trouble and frustration.

Complaint about the way the Council handled the complaint

Complaint and response

93. Mrs P wrote her complaint to the Council on 10 February 2016, including her concerns about both the Trust and the Council. She referred to Mr P’s complaint to the Trust’s PALS team on 29 May. She said Mr P met with representatives from the Trust and the Council on 9 July 2014 to discuss the complaint, and “everyone attempt[ed] to claim it was not their responsibility”. She said the Trust wrote to them on 21 July 2014, with little more than platitudes. Mr P provided a copy of a letter from the Council dated 4 June 2014 on which it acknowledged the complaint and said it would write with a response. However, it did not do so.
94. The Council wrote to Mrs P on 3 March 2016, referring to an insurance claim, and asked what they sought compensation for. Mrs P replied to say she wanted a joint complaint investigation with the Trust, so she was disappointed the Council was treating the matter as an insurance claim. The Council replied to say it had agreed with the Trust that the Council would lead on a joint complaint response.
95. Mrs P wrote to the Council on 3 May to say she was concerned she had not received a response. She also wrote to the Trust to the same effect on 7 May, 31 May, and 10 June. The Council wrote to apologise for the delay on 15 June.
96. The Council responded to the complaint on 14 September, including a response from the Trust. It said Mr P met with the matron and a senior manager from social services, and the matron explained it was in a patient’s best interests to be discharged from hospital as soon as possible. It said if Mrs P was unhappy with this response, she should pursue this with the Trust.
97. On 26 September Mrs P wrote to the Council to say the response only addressed selected parts of her complaint and not the main concerns. Mrs P told the Council the key part of her complaint was Mrs D’s discharge to Willow Bank House, which it had not addressed. She asked for a meeting. She also asked for the Council’s records, which the Council refused.
98. In November, the Council told the Trust Mrs P was dissatisfied with the response and had asked for a meeting. The Trust replied that the complaint about the discharge to Willow Bank House was handled in 2014 via a meeting between the matron and Mr P. It said it would be difficult to investigate it given the passage of time. It would seek representation from the Trust if the Council organised a meeting.
99. In January 2017, the Council wrote to Mrs P to say she should approach the Trust or the Ombudsman with her concerns about the Trust. It said issues with the care at Willow Bank House were unfortunately not shared with the care quality team, and apologised for this.
100. In February 2017, Mrs P replied. She said the Council was clearly involved with Mrs D’s discharge to Willow Bank House. Mr P told the Trust he was not satisfied with the response they got via PALS, and they had waited to hear further via the Council following a joint investigation. She said they were not offered a meeting to discuss the complaint.
101. The Council replied to say the Trust led on Mrs D’s discharge from hospital so it was appropriate for the Trust to lead on the complaint. It said there was no indication at the time that Mr P was not satisfied with the outcome from PALS, and it would not investigate further. It said a member of staff did not make a safeguarding referral about the care at Willow Bank House when they should have, and it would take management action about this. It said under its complaints process it should have contacted Mrs P and either discussed the complaint with her or met with her. It apologised “if this did not occur in this instance, however, your letter was detailed…”. It said it did not consider that further investigation would change its previous findings, and referred Mrs P to the Ombudsman.

Findings and analysis

102. The Council said the complaint of May 2014 was not specifically against the Council. The record of Mr P’s complaint to the Trust’s PALS team in May 2014 included concerns about the manner of Mrs D’s discharge to Willow Bank House, about her receiving poor care at Willow Bank House, and that a health and social care assessment they were told she would have had not happened. Therefore, it was clearly a complaint about the Council as well as the Trust.
103. The Council also said Officer C met with Mr P to discuss the complaint and Mr P was satisfied with the response. Mr P says he was not satisfied with the outcome of this complaint. However, the Council’s case notes of July 2014 say Officer C told the complaints team that Mr P was satisfied with the outcome of the meeting.
104. Under the Council’s procedure, it should have written to Mr P after the meeting to formally respond to his concerns. It did not do this, and I have seen no record of the Council’s part in this meeting.
105. The letter the matron sent to Mr P in July 2014 is inadequate as a complaint response. It does not reflect a proper complaint investigation or action plan, in line with the Trust’s policy of the time. Nor does it advise Mr P of the steps he could take if he was dissatisfied.
106. After Mrs P complained to the Council in February 2016, the Council failed to contact her to discuss the complaint or consider offering a meeting, as it should have in line with its procedure. Its apology for this is inappropriate in tone, because it does not show a clear acknowledgement that the Council got it wrong. The Trust and Council took too long to respond to the complaint, without having agreed an extension with her.
107. Both the Trust and the Council failed to properly consider the circumstances of Mrs D’s discharge to Willow Bank House, identify what went wrong, or consider any action to prevent similar problems happening again, even after Mrs P pointed out that they had not done so.
108. When Mrs P pursued this, the Trust said it would not investigate because the events were too long ago, even though it had previously agreed that it would investigate them and failed to do so properly. The Council simply told Mrs P to pursue the Trust, even though the Council had not properly considered its own part in the hospital discharge.
109. I find that both the Trust and Council failed to properly handle the complaint, in line with their procedures and the Complaints Regulations. This is fault. It caused Mrs P significant additional time, trouble and frustration.

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Agreed actions

110. As Mrs D sadly died after these events, it is not possible to remedy the injustice to her. I recommended the actions below to remedy the injustice caused to Mr and Mrs P from the faults I found. I shared a draft of this decision, including these recommended actions, with the Trust and the Council and they accepted the draft decision.
111. I took account of the ‘Guidance on good practice: Remedies’ published by the Local Government and Social Care Ombudsman, and the Parliamentary and Health Service Ombudsman’s guidance on financial remedy. Both organisations aim to put the person or people affected back into the position they would have been in without the fault, if this is possible. Where this is not possible, they may recommend financial payments as a symbolic acknowledgement of the distress or difficulties caused by the fault.
112. The Trust and Council will complete each of the actions below within two months of this decision.
113. The Trust and Council will write to Mr and Mrs P to acknowledge what went wrong and apologise for the impact of this on them.
114. The Trust and Council will jointly write to Mr and Mrs P to explain how they have since changed their procedures or practice to stop similar faults with hospital discharge happening again, if they have made changes since these events. If not, they will explain how they will make changes to stop similar problems happening again. They will include an explanation of how they monitor, or will monitor, the effectiveness of these changes.
115. The Trust and Council will jointly write to Mr and Mrs P to explain how they will prevent similar faults with complaint handling happening again.
116. Following a previous investigation by the Local Government and Social Care Ombudsman the Council agreed in February 2018 to review its top up agreements to ensure they comply with the requirements of the Care Act 2014 and to ensure it provides families with full and correct information about top up fees. The Council will write to Mr and Mrs P to explain what it has done to make improvements in these areas.
117. The Council will also review its practice and procedures and explain in writing to Mr and Mrs P:
1. how it will act on information about poor quality care in care homes and consider the risks of continuing to place people there
2. how it will monitor social care assessments to make sure they are done in a reasonable timeframe
3. how it will ensure it complies with the current statutory guidance about when top up fees can be charged
4. how it will ensure it complies with the current law and statutory guidance about moving people between care homes when they lack capacity to make decisions about this and there is no one with legal authority to act for them
5. how it will review the invoices for Mrs D’s care in line with my findings and the relevant guidance to ensure they accurately reflect what she should have been charged.
118. The Council will reimburse Mr P for the two weeks top up fee he paid in 2014. If Mr and Mrs P can produce evidence of what they paid for the private capacity assessment, the Council will reimburse them for this too. The Council will include interest at the average retail price index over the period.
119. The Council and Trust will copy their correspondence to Mr and Mrs P to the Ombudsmen and to the Care Quality Commission. The Trust will copy its correspondence, along with a copy of this decision statement, to NHS Improvement.
120. To acknowledge the distress caused to Mr and Mrs P by the faults with the hospital discharge and complaint handling the Trust and Council will each pay them £375.
121. To acknowledge the distress caused to Mr and Mrs P by its faults following the hospital discharge, the Council will pay them an additional £250.

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Decision

122. I find that:
1. The Trust and Council are at fault because they arranged for Mrs D to go to Willow Bank House without either getting her consent or following the best interests process
2. The Trust is at fault for discharging Mrs D late in the evening, without her clothes or personal belongings, and without including documentation about her care needs
3. The Council is at fault for not considering the risk to Mrs D of discharging her to Willow Bank House given the concerns about the quality of the care there
4. The Council is at fault for taking too long to assess Mrs D’s social care needs after her discharge from hospital
5. The Council is at fault for not considering where Mrs D should live through the best interests process and for not assessing whether her needs could be met other than at Care Home A
6. The Council is at fault for causing delays with the deputyship application
7. The Council is at fault for asking the family to pay a top up fee for Care Home A until mid-July 2014 when it had no basis for doing so
8. The Council is at fault for failing to follow its plan to negotiate with Care Home A over the weekly cost
9. The Council is at fault for failing to adequately communicate with Mr and Mrs P about what it was paying Care Home A
10. The Council is at fault for failing to properly consider whether it could charge a top up fee for Care Home A once it was a long term placement.
11. The Trust and the Council are at fault for failing to adequately handle Mr and Mrs P’s complaints.
123. As a result of the Trust’s and Council’s faults with the hospital discharge, Mrs D’s dignity was compromised and she was caused significant distress. Mr and Mrs P were also caused significant distress.
124. As a result of the Council’s faults following Mrs D’s discharge from hospital Mr and Mrs P were caused distress, frustration, disruption and financial loss.
125. As a result of the Trust’s and Council’s faults with the complaint handling, Mr and Mrs P were caused significant additional time, trouble and frustration.
126. I consider that the actions the Trust and Council have agreed to take will adequately remedy the injustice caused by the faults. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

127. I did not investigate the complaint that no safeguarding referral was made because there is no evidence of injustice, and it is unlikely we could achieve more than the Council’s investigation.
128. I did not investigate the complaint about the failure to properly complete a Checklist for Continuing Healthcare because Mr and Mrs P could ask the relevant Clinical Commissioning Group to consider Mrs D’s entitlement retrospectively.

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Investigator's decision on behalf of the Ombudsman