Summary: Mr B complained that the Council stopped his mother,
Miss M’s, reablement care, contrary to Government guidance and a letter from the Clinical Commissioning Group (CCG). The Council was entitled to end Miss M’s reablement care when she reached her reablement goals. However, the Council and CCG were at fault in communicating poorly with Miss M and Mr B. This caused them avoidable confusion and frustration. The Council and CCG accept our recommendations, so we have completed our investigation.

The complaint

1. The complainant, whom I shall call Mr B, complained about the actions of London Borough of Haringey (the Council) and NHS North Central London Clinical Commissioning Group (the CCG). Mr B complained the free home care package his mother, Miss M, received following discharge from hospital in May 2020 was stopped incorrectly. Mr B said that:
• this was contrary to the Government’s COVID-19 hospital discharge guidance and to a letter Miss M received from the CCG; and
• the care package was stopped suddenly and without enough notice.
2. Mr B said that as a result:
• Miss M paid for care that she believes should be free of charge; and
• he suffered stress because of having to source care for his mother at short notice.
3. Mr B and Miss M wanted the Council and CCG to reimburse some of Miss M’s care fees and to improve services so the same problem would not affect others.

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The Ombudsmen’s role and powers

4. 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 Council and CCG followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
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 on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
6. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
7. 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).
8. 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.
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 have considered information Mr B provided in writing and by telephone. I have also considered the Council’s and CCG’s written responses to my enquiries.
11. Mr B, the Council and the CCG have had an opportunity to comment on a draft version of my decision. I considered their comments before making a final decision.

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What I found

Legal and administrative background

12. The Government guidance relevant to hospital discharges in England during the period of this complaint is “COVID-19 Hospital Discharge Service Requirements”, published 19 March 2020 and withdrawn 25 August 2020. This says that patients must be discharged from hospital as soon as it is clinically safe. The guidance also:
• suspends the need for NHS continuing healthcare assessments;
• says the NHS will fully fund the cost of new or extended social care support for a limited time to relieve the pressure on hospitals;
• introduces a “discharge to assess” (DTA) model consisting of four “pathways” (0-3). Pathway 1 was for people who could be discharged home with support from health and/or social care.
13. NHS 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’. CHC funding can be provided in any setting, including for care in a person’s own home.
14. Reablement support services are for people after they have left hospital or when they are at risk of having to go into hospital. They are time limited and aim to help a person to preserve or regain the ability to live independently. Regulations say local authorities must not charge for the first six weeks of intermediate care or reablement services. They may make a charge where services are provided beyond the first six weeks, but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)
15. Councils can make charges for care and support services they provide or arrange. Charges may only cover the cost the Council incurs. (Care Act 2014, section 14)
16. Councils must assess a person’s finances to decide what contribution they should make to the costs of their care. The Council can take a person’s capital and savings into account subject to certain conditions.
17. Under section 4 of the Care Act 2014, councils must provide information and advice services about care and support for everyone in their area. The Government’s Care and Support Statutory Guidance (CSSG) says that:
• councils are responsible for ensuring that all adults including carers in their area can access information and advice about care and support;
• this includes information about finances;
• this is to support people to make informed choices about care and support; and
• information must be accurate, up-to-date and clear. This means the person receiving it must be able to understand and act on it.
18. Schedule 12 of the Coronavirus Act 2020 sets out powers and duties for councils in England arising from the impact of the outbreak related to their care and support functions. The Coronavirus Act 2020 became law on 25 March 2020. It allows for some council duties under the Care Act 2014 to be transformed from a ‘duty’ to a ‘power’ by using ‘Easements’.
19. We can consider whether the Council followed our published “Good Administrative Practice during the response to COVID-19”. We consider basic record keeping vital during a crisis. There should always be a clear audit trail of how and why decisions were made, summarising any reasons for departing from normal practice.

What happened

20. Miss M is in her 80s. In early 2020, she needed to go into hospital because she had a bone fracture. Before going into hospital, she did not receive social care support and managed her daily tasks independently.
21. At the end of her stay in hospital, the Council assessed Miss M as needing reablement care in her own home from 2 March 2020. The care was to be provided by one care worker, carrying out four visits a day. The Council changed this to the same hours of care, but provided by two care workers, from 6 March 2020.
22. At the time, the Council considered:
• Miss M needed the support of two carers for transfers because of the pain she had when moving without this support;
• the pain was likely to reduce as her injury healed; and
• Miss M’s reablement goals were to be able to move from a chair and out of bed with the help of just one person.
23. Miss M went back into hospital in May 2020. She was discharged from hospital at the end of May 2020 under pathway 1 of the DTA model (see paragraph 12 above). The Council again provided reablement care of four visits a day, with two carers. In June 2020, the Council reviewed Miss M’s needs and noted her function had improved significantly since the last review. Having consulted with Miss M and Mr B, the Council decided the lunch and tea-time calls could be done by just one care worker.
24. The Council’s reablement service visited Miss M on 30 July 2020 and reviewed her needs. The review records state that Miss M:
• said she could move from a lying position to the edge of her bed, but would benefit from something to hold on to;
• felt she did not need two carers and one should be able to take care of her needs; and
• could move from sitting to standing and move outdoors, although this was slow and unsteady.
25. After this review, the Council decided to change Miss M’s reablement care from 5 August 2020. It cancelled the two visits in the middle of the day. The morning and evening visits were to be done by one care worker.
26. On 30 July 2020, the CCG sent Miss M a letter about her care funding. Miss M received it on 7 August. The letter included the following information:
• the “Government has agreed to fully fund the cost of new or extended out of hospital health and social care packages”;
• this was to enable quick and safe hospital discharge and applied from 19 March 2020 for a limited time;
• the funding covered the cost of care provided in people’s own homes;
• the full cost of Miss M’s care “will be met from NHS resources for the duration of the current COVID-19 emergency period”; and
• Miss M did not need to do anything and will not be expected to contribute to this package of care during the emergency period.
27. Mr B and Miss M understood this to mean that Miss M’s current package of care would remain free of charge until the end of the COVID-19 crisis.
28. On 10 August, the Council cancelled the reablement care altogether, stating on a form confirming the cancellation to the care agency that Miss M would like to arrange her own care as she is self-funding. I have seen no records of a further review or discussion with Miss M that support this decision.
29. Mr B complained to the Council on 12 August 2020. In summary, his complaint said:
• Miss M got the CCG’s letter on 7 August, stating that her care should be free;
• Mr B contacted the Council over the next three days to explain this, but the person he spoke to was unaware of the CCG’s letter;
• Mr B wanted to send a copy of the CCG’s letter to the Council, but the officer he spoke to did not want to know and only wanted to close the case;
• Mr B asked for at least a day’s notice to prepare adequate care for Miss M, but the Council sent him a text message at 11 am on 10 August stating that day would be the last day of care; and
• Miss M had not received some equipment and physiotherapy as promised by the Council.
30. The Council replied about two weeks later. Its response said, in summary:
• having reviewed Miss M’s abilities, it had concluded that “she had reached her potential with personal care and would benefit from an ongoing package of care to support her”;
• Mr B had told the Council that Miss M had savings over £23,250;
• the officer he spoke to advised him that this meant she had exceeded the threshold for Council support with care fees and would need to fund her social care herself;
• the Council told Mr B it would end the reablement care when he could source private carers, gave him a list of private agencies and confirmed it would stop Miss M’s reablement care on 10 August 2020;
• COVID-19 “funding for care packages is a short-term arrangement to support hospital discharges”;
• once the Council has assessed a person’s long-term care needs, the person becomes eligible to contribute to the cost of social care, subject to a financial assessment; and
• it has discussed these matters with the officer Mr B spoke with and the whole team is now aware of the process around COVID-19 funding.
31. The Council also confirmed that:
• it originally delivered the wrong chair raisers for Miss M, but the correct ones should be delivered very soon; and
• the Council referred Miss M for physiotherapy and a pendant alarm earlier that month.
32. The Council apologised to Mr B and Miss M for the delay in providing equipment and not explaining the funding arrangements clearly.

Council response to our enquiries

33. In response to our enquiries, the Council has told us it did not use any Easements during the period covering the events Mr B complains of. It also said:
• it discharged Miss M from reablement services in accordance with the ‘Discharge Today COVID-19 Hospital Discharge Service Requirements’, which says that “A person should only be discharged from the process when a review of their care needs concludes that this is safe for the person or ongoing case management decides on a longer-term intervention”;
• this is because it only discharged Miss M from reablement services following a review of her care needs having decided she needed long term care and support;
• a reablement therapy assistant reviewed Miss M’s needs in July 2020 and recommended that she would benefit from long term support as she had reached her potential to regain independence with her daily living activities;
• any long-term support needs would be met with an ongoing care package, for which a person would be financially assessed;
• as Miss M had more than £23,250 in savings, she would need to pay the full cost of any long term support provided by the Council;
• the Council discussed this with Miss M’s family on 28 July 2020 and agreed with them that it would end reablement care in 12 days’ time, on 10 August 2020.

CCG response to our enquiries

34. In response to our enquiries, the CCG has told us that it sent the letter dated 30 July 2020 to everyone whose care was funded under the COVID-19 Hospital Discharge Service Requirements. This was to:
• advise people of the different hospital discharge and funding arrangements during the emergency period; and
• to give them a contact number if to use if they needed any changes to their care or were experiencing difficulties.
35. The CCG also told us:
• the letter advised people that social care is financially assessed and they may have to pay the full cost or contribute towards the cost;
• it was not aware at the time it sent the letter that the Council had not enacted Care Act easements;
• it had shared and agreed the letter with its local authority partners before sending it to service users; and
• it was not aware Miss M’s care was a reablement package or that the Council had decided to end Miss M’s reablement care.

My analysis

36. Miss M’s care in 2020 was not CHC-funded. All the care she received was reablement care. This is normally free of charge for up to six weeks. In some circumstances, the Council can provide reablement for longer than six weeks without charging. However, it does not have to extend free reablement beyond six weeks. The Council can also stop reablement care when it decides that a person has achieved their reablement goals.
37. The COVID-19 Hospital Discharge Service Requirements guidance says that Government funding for social care was in place for a limited time, to reduce pressure on hospital services. The aim of this approach was to facilitate quick discharge from hospital to free up as many hospital beds as possible during the COVID-19 crisis, through providing post-hospital care until a person no longer needed it, or until their long-term needs were established. The guidance says that:
• health and social care organisations must assess people after a period of recovery and make longer-term care available to ensure the DTA pathways are not blocked for future patients needing discharge from hospital;
• people who, like Miss M, were discharged under Pathway 1 in need of reablement services should have had a review of care needs after receiving reablement support;
• following the review, the service should have discharged people it considered to be safe without further help;
• where the review decided a person was still not safe, they should have continued receiving reablement services until they stopped needing them, or until the service decided they needed longer term support;
• reablement services should have identified everyone receiving the service “for an extended period” and discussed whether they could be discharged safely, or whether there was another service that could support the person. The guidance expected reablement services to record actions from these discussions; and
• NHS organisations and councils should have had planning conversations with patients and their families about the possibility that they would need to pay for their care later.
38. There is no evidence the Council told Miss M or Mr B, in writing or otherwise before stopping reablement care, that:
• the reablement care Miss M received from May 2020 was time-limited;
• the Council needed to keep the reablement care under review and could stop it when Miss M reached her reablement goals, even during the COVID-19 emergency period; and
• any long-term social care support the Council provided to Miss M after stopping reablement care would be chargeable, subject to a financial assessment.
39. This was flawed communication, contrary to section 4 of the Care Act 2014 and fault by the Council.
40. There is no evidence the Council reviewed Miss M’s needs between 30 July 2020, when it decided she needed two reablement care visits a day, and 10 August 2020, when it cancelled the reablement service. While the Council told us a review at the end of July concluded the service should end and the complainants agreed this, its records from the time do not reflect this. The Council even sent a new request for a continued, although reduced, care package on 5 August 2020. The available records and the timeline of events indicate it is more likely than not that the Council did not give Miss M and Mr B enough notice that it would end Miss M’s reablement care. These were faults.
41. The Council’s faults have led to confusion and frustration for Mr B who had to find alternative care for Miss M at short notice. However, the Council is entitled to end reablement services when a person achieves their reablement goals. The reviews the Council did in June and July 2020 indicate Miss M had reached her reablement goals by the end of July. I therefore consider it more likely than not that Miss M’s free reablement care would have ended around August 2020, even if the Council had not acted with fault. The Council’s fault has therefore not caused Miss M a financial injustice.
42. The CCG’s letter was sent with the good intention of keeping people informed about care charges and who to contact if their needs changed. While the CCG included a reference to social care potentially being chargeable, this was at the end of a letter which also said:
• the full cost of Miss M’s care “will be met from NHS resources for the duration of the current COVID-19 emergency period”; and
• health and social care services need to identify people who may need a full CHC assessment “after the emergency period has come to an end. Following this time, we may contact you and arrange an assessment…If you are not eligible for CHC, you may be eligible for Social Care funding by the council”.
43. I consider the references to free care until the end of the emergency period were misleading. The letter did not clarify that any free reablement care could end even during the emergency period, if the reablement service decided that the person needed longer term social care. This was fault, which raised Miss M’s and Mr B’s expectations and added to their frustration.

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Agreed actions

44. To remedy the injustice to Miss M and Mr B, the Council and CCG will write to them to acknowledge the faults we have identified and apologise for their impact on Miss M and Mr B. The Council and CCG will do this within one month of our final decision.
45. To prevent similar problems affecting others, the Council will ensure its reablement service is aware of the importance of keeping adequate records, including of planning conversations with service users and key reasons for its decisions. The Council will do this within one month of our final decision.
46. To prevent similar problems affecting others, within one month of our final decision the CCG will:
• make its executive management team aware of our decision on this complaint;
• put in place an action plan to ensure future mailshots referring to other services such as social care include accurate information; and
• send a copy of its action plan to NHS England.

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Final decision

47. The Council was entitled to end Miss M’s free reablement care when she reached her reablement goals. However, the Council and CCG were at fault in communicating poorly with Miss M and Mr B. This has led to avoidable confusion and frustration for the complainants. We have completed our investigation as the Council and CCG have accepted our recommendations.

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Investigator's decision on behalf of the Ombudsman