Summary: We found no fault by a Council and ICB with regards to how they assessed Mrs Y’s needs following her discharge from hospital. However, we found fault with the Council’s complaint response which incorrectly advised Mrs Y’s son that a Continuing Healthcare Checklist had been completed when it had not. The Council will apologise for the distress this caused.

The complaint

1. The complainant, who I will call Mr X, is complaining about the care and support provided to his mother, Mrs Y, by Shropshire Council (the Council) and NHS Shropshire, Telford and Wrekin Integrated Care Board (the ICB).
2. Mr X complains that the ICB and Council failed to properly assess Mrs Y’s care needs after she was discharged from hospital in May 2021 under the COVID-19 hospital discharge arrangements.
3. Mr X says Mrs Y has incurred care fees because of the failure of the Council and ICB to properly assess her eligibility for Continuing Healthcare (CHC) funding. Mr X says Mrs Y has been placed in financial hardship as a result.

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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)

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How I considered this complaint

7. In making my final decision, I considered information provided by Mr X. I also considered evidence provided by the Council and ICB, including care records. I took account of relevant legislation and guidance. I invited comments from all parties on my draft decision statement and considered the responses I received before making a final decision.

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What I found

Relevant guidance and legislation

Integrated Care Boards

8. On 1 July 2022, NHS England introduced the integrated care system. This involved the formation of local NHS partnerships responsible for producing an integrated care strategy on how to meet the health and wellbeing needs of the population in that area.
9. As part of the integrated care system, NHS England also introduced Integrated Care Boards. These organisations are responsible for managing the local NHS budget and arranging for the provision of health services in the area. The establishment of Integrated Care Boards resulted in the closure of clinical commissioning groups.
10. NHS Shropshire, Telford and Wrekin CCG has now been replaced by NHS Shropshire, Telford and Wrekin Integrated Care Board.
11. In this decision statement, for consistency and ease of reference, I have referred to the ICB throughout, rather than its predecessor organisation.

COVID-19 pandemic

12. 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).
13. 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.
14. 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.

CHC funding

15. The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care (November 2012 (Revised)) (the National Framework) is the key guidance about Continuing Healthcare. It states that where an individual is eligible for Continuing Healthcare funding, the ICB is responsible for care planning, commissioning services and case management.

CHC assessment (Checklist)

16. 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’. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. The threshold for meeting the CHC Checklist is set low.
17. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. This assessment is completed using a decision support tool (DST). The DST is a record of the relevant evidence and decision-making. The DST should be completed within 28 days of the CHC Checklist unless there are ‘valid and unavoidable’ reasons for it taking longer.
18. Section 121 of the National Framework explains that “[t]here will be many situations where it is not necessary to complete a Checklist.” This includes situations in which “[i]t is clear to practitioners working in the health and care system that there is no need for NHS Continuing Healthcare at this point in time. Where appropriate/relevant this decision and its reasons should be recorded. If there is doubt between practitioners a Checklist should be undertaken.”

Social care assessments

19. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how these impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and, where appropriate, their carer or any other person they might want to be involved.
20. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of the person’s needs and a consideration of any fluctuation in those needs. Councils should let the individual know of the proposed timescale for when their assessment will be conducted and keep the person informed throughout the assessment process.

Mental Capacity Act

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

What happened

23. Mrs Y had a diagnosis of dementia. She was living at home and was independent with most activities of daily living.
24. In May 2021, Mrs Y suffered a fall at home. She was admitted to hospital and found to have suffered a broken arm.
25. Mr X held Lasting Power of Attorney (LPA) for both Mrs Y’s health and welfare and her property and finance. Mr X told a Council social worker that Mrs Y had been getting more forgetful and confused and that he felt she would benefit from further assessment.
26. On 26 May, Mrs Y was discharged to a specialist dementia care home as part of the ‘discharge to assess’ care pathway.
27. Mrs Y settled well in the care home. The social worker reviewed her progress on 3 June. He found Mrs Y was eating and drinking appropriately and appeared to be sleeping well. However, the social worker noted that Mrs Y remained confused and was not orientated to time or place.
28. The following day, the social worker spoke to Mr X. Mr X explained that he and Mrs Y’s daughter both worked and would be unable to provide the level of support she would require at home. Mr X also explained that Mrs Y had previously been very resistant to receiving care at home.
29. The placement was due to end on 8 June. However, the social worker extended this to allow him to complete further assessments.
30. On 15 June, the social worker completed a mental capacity assessment for Mrs Y. He concluded Mrs Y no longer had capacity to make decisions about her care.
31. The social worker completed a Care Act Assessment for Mrs Y on 1 July. He concluded that Mrs Y’s cognitive impairment meant she had eligible needs in several care domains. This included managing and maintaining nutrition, managing personal hygiene and being appropriately clothed. The social worker concluded that Mrs Y would require 24-hour care in a residential placement to safely meet her needs.
32. The social worker discussed Mrs Y’s ongoing care with Mr X on 5 July. They agreed it would be in Mrs Y’s best interests to remain in the care home on a permanent basis.

Analysis

33. Mr X complained that the ICB and Council failed to properly assess Mrs Y’s care needs after she was discharged from hospital in May 2021 under the COVID-19 hospital discharge arrangements. Mr X said the ICB failed to complete a CHC Checklist for Mrs Y and that it should continue to fund Mrs Y’s care home placement until her eligibility for CHC had been properly assessed.
34. In the Council’s response to Mr X’s complaint, it said a social worker completed a Care Act assessment for Mrs Y on 1 July and that this was when the ‘discharge to assess’ period ended. The Council said a mental health liaison nurse had completed a CHC checklist for Mrs Y on 14 May when she was still an inpatient.
35. However, the ICB’s response to the complaint acknowledged that this was not a complete checklist. Rather, it said this was a tool used by the local mental health service to assess Mrs Y’s mental health needs. Nevertheless, the ICB said the Council had completed a Care Act Assessment. The ICB said this identified that Mrs Y’s care needs could be met with standard social care services (in this case a residential placement specialising in dementia care).
36. In its response to my enquiries, the Council again said a Checklist had been completed. The Council reiterated that the Care Act Assessment did not identify any health needs and that a further Checklist was not indicated, therefore.
37. The CHC Checklist is used to assess whether a person has eligible health needs across 12 care domains. These relate to both physical health (such as mobility and nutrition) and mental health (such as cognition and behaviour).
38. I have reviewed the document referred to by the Council and ICB in their complaint responses and responses to my enquiries. As the ICB explained, this is a partial Checklist used to assess only the care domains related to Mrs Y’s mental health (four domains in total). This cannot be considered a full Checklist as it does not represent a complete consideration of Mrs Y’s care needs. The Council’s complaint response on this point was incorrect, therefore. This was fault and caused Mr X unnecessary frustration and confusion.
39. However, I am not persuaded the lack of a Checklist had a significant impact on Mrs Y’s care. The CHC Framework makes clear that there is no requirement to complete a Checklist if “[i]t is clear to practitioners working in the health and care system that there is no need for NHS Continuing Healthcare at this point in time.”
40. The Care Act Assessment found the Council could meet Mrs Y’s care needs through a residential placement in a specialist dementia care home. On that basis, there was no reason for the Council to complete a Checklist or refer Mrs Y’s case to the ICB. In my view, the Care Act Assessment represented an appropriately thorough consideration of Mrs Y’s care needs under the Care Act 2014. I found no fault by the Council in this regard.
41. Similarly, I found no fault by the ICB. There was no requirement for the ICB to complete a Checklist. This is because the Council’s Care Act Assessment had already identified that Mrs Y did not have any needs that could not be met through standard social care provision.

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Agreed actions

42. Within one month of my final decision statement, the Council will write to Mr X to apologise for advising him that a Checklist had been completed when this was not the case. The apology will acknowledge this fault caused Mr X unnecessary frustration and confusion.

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Final decision

43. I found no fault by the Council or ICB with regards to how they assessed Mrs Y’s needs following her discharge from hospital.
44. However, I did identify fault by the Council in terms of its complaint responses as it incorrectly advised Mr X that a CHC Checklist had been completed for Mrs Y. The Council will now apologise for the distress this caused. I consider this a reasonable and proportionate remedy.
45. I have now completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman