The Ombudsman's final decision:
Summary: Ms A complains about delays in transferring within and discharge from hospital and a care home. She says the delays were because of unresolved funding issues and arranging a care package. The Ombudsmen find fault and Ms A has suffered distress and uncertainty. Ms A also complains about occupational therapy assessments which she says prevented her return home. The Ombudsmen find no evidence of fault in the assessments.
- Ms A and Mr B complain about the organisations’ involvement in Ms A’s care. In summary, they say:
- NLG Trust attempted to move Ms A from the Scunthorpe Stroke Unit to the Grimsby Stroke Unit at midnight.
- NELCCG refused a place for Ms A at the Goole Brain Injuries Unit.
- ULH Trust delayed in finding a rehabilitation bed for Ms A at Lincoln County Hospital after funding for rehabilitation in Goole was refused.
- The Council and LECCG delayed Ms A’s discharge from Lincoln County Hospital over a funding dispute.
- A ULH Trust hospital occupational therapist (OT) said Ms A’s home would be unsuitable for her return there and the Council delayed instructing its OT to re-assess Ms A’s home.
- The Council wrongly charged top-up fees for a care home.
- The Council proposed to move Ms A to a care home for elderly people with dementia.
- The Council delayed in sourcing an appropriate home care provider to meet Ms A’s care needs at home once the property was adapted.
The Ombudsmen’s role and powers
- 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)
- 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).
- 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.
- 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)
How I considered this complaint
- I have considered a written complaint from Ms A’s representative, Ms J, and I have discussed the matter with Ms J. I have made enquiries of the relevant organisations and considered the responses with supporting documentation. I have taken relevant guidance into account before coming to a view.
- I have issued a draft decision and invited comments from the parties to the complaint.
What I found
- Ms A has a number of permanent disabilities including incontinence, poor vision and a speech disability. She is wheelchair dependent.
- Ms A was admitted to hospital in Scunthorpe on 3 March 2015 following a severe brain haemorrhage, where she spent six weeks. She was transferred to the Grimbsy Stroke unit (the NLG Trust). She was assessed as requiring rehabilitation. However, the Grimbsy unit told the family it could not provide this as Ms A was not ordinarily resident in that location. She was therefore transferred to Lincoln (the ULH Trust).
- On 23 December 2015, Ms A moved to a residential placement for rehabilitation (the home), in anticipation of her move home. However, she remained at the home for an extended period of time while alternative accommodation options were explored. Ms A’s family home required adaptations for her to return living there.
- The adaptations were completed in December 2016. Ms A moved home in February 2017.
Relevant law and guidance
- Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
- The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
- The Care Act Guidance (the Guidance) says that councils may take into account reasonable consideration of its finances. However, the Guidance makes it clear that council may only do this in deciding between suitable alternative options to meet needs. This does not mean choosing the cheapest option, but that which delivers the outcomes for the best value. A council should not set arbitrary upper limits on the costs it will pay to meet a person’s needs.
- Local authorities have a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs. In all cases, a local authority has the discretion to choose whether or not to charge under section 14 of the Care Act following a person’s needs assessment.
- A care plan must detail the needs to be met and how the needs will be met, and will link back to the outcomes that the adult wishes to achieve in day-to-day life as identified in the assessment process and to the wellbeing principle in the Act. This should reflect the individual’s wishes, their needs and aspirations, and what is important to and for them, where this is reasonable. This process is central to the provision of person-centred care and support that provides people with choice and control over how to meet their needs. (Care and Support Statutory Guidance)
Discharge from hospital
- Department of Health guidance: Definitions – Medical Stability and ‘Safe to Transfer’ (2003) (the ‘Safe to transfer guidance’) gives guidance on when a patient can be safely considered to be ‘medically fit for discharge’. This lists three key criteria for making this decision and stresses professionals should address them at the same time, if possible. According to the protocol, a person is considered to be safe for discharge when:
- a clinical decision has been made that the patient is ready for transfer;
- a multidisciplinary team decision has been made that the patient is ready for transfer; and,
- the patient is safe to discharge/transfer.
A patient can be defined as clinically or medically stable if tests (such as blood tests and observations) are considered to be within the normal range for the patient. A patient is ‘fit for discharge’ when all relevant physiological, social, functional, and psychological factors have been taken into account. This can require a multidisciplinary assessment.
Proposed move to Grimsby Stroke Unit
- I have reviewed the NLG Trust’s notes of the day of the proposed transfer. The records confirm that transport was booked for the transfer at 15:10 on 9 April 2015. However, the ambulance service contacted the NLG Trust at 22:30 that evening and advised that transport was unavailable until midnight.
- NLG Trust staff liaised with the receiving ward and learned the family had concerns about a move so late at night. Staff therefore contacted the ward to ensure the place would remain open for Ms A until the following morning, when she could move.
- I do not consider there is evidence of fault in relation to this aspect of the complaint. The NLG Trust booked the transport in the afternoon and the ambulance service did not advise until much later that transport was not available until midnight. When the NLG Trust learned of the family’s concerns, it acted appropriately in contacting the ward to ensure the place would remain open and rearranged transport for the following day.
Refusal to fund treatment at Goole
- The Goole rehabilitation team assessed Ms A on 15 April 2015. It considered Ms A had ‘good potential for further rehabilitation’.
- I have seen evidence the NLG trust made a referral to LECCG for funding on 24 April 2015. However, LECCG has no record of having received this referral and therefore cannot demonstrate that is considered the request.
- Ms A’s family was advised that funding was declined. However, there was no formal notification for this and I am unable to determine whether the request was in fact considered. Ultimately, Ms A’s discharge to Lincoln County was delayed by at least a week due to the decision about funding. This is evidence of fault for which I consider LECCG responsible for this as it is unable to demonstrate it considered the referral when one was clearly made. Ms A has suffered an injustice in her rehabilitation being delayed for approximately a week.
Delay in transferring Ms A to Lincoln
- The NLG Trust’s records show Ms A was medically fit for discharge on 30 April 2015. However, as noted above, between this date and 8 May 2015, the NLG Trust was considering applying for funding for the Goole placement.
- On 13 May 2015, the ULH Trust contacted the NLG Trust advising it would forward the relevant forms it needed to assess whether Ms A was suitable for a place at Lincoln County Hospital. In the interim, the NLG Trust also explored a different placement. The ULH Trust then contacted the NLG Trust on 18 May 2015 to advise it would have a bed available the following day. This indicates the required paperwork was completed in a short timeframe and certainly within five days. I therefore do not consider there is evidence that either the NLG or ULH Trust delayed several weeks in offering a place. The length of Ms A’s stay appears to be a result of the fact she was initially assessed by the Goole unit but there is a lack of clarity around what happened to this possible placement. There is no evidence of fault in relation to the delay between 8 and 19 May 2015 as the NLG Trust promptly identified an alternative ward for transfer.
- Ms A was transferred to Lincoln County Hospital on 19 May 2015.
Discharge from hospital and funding arrangements
- In May 2015, the Council began an assessment of Ms A’s social care needs which it completed in November 2015. The assessment identified that Ms A became emotional easily as her haemorrhage had affected her emotional quotient (the level of a person’s emotional intelligence). The assessment also recorded that if Ms A moved to a placement that was not suitable, this would impact adversely on her mood.
- On 10 September 2015 Ms A was medically fit to be discharged. Ms A was ‘very clear’ she did not want to go to a placement that was for predominantly older people. At this point Ms A had identified her preferred home. However, the rate the home charged was significantly higher than the Council’s rate and there were ongoing discussions about Ms A returning to the family home, which was her preferred discharge plan. The ULH Trust has confirmed that the delay in discharging Ms A was entirely down to the discussion around who would fund the placement.
- On 2 October 2015, the ULH Trust completed an assessment for Ms A to determine whether she was eligible for health funding. A social worker attended the assessment meeting to provide input in terms of Ms A’s social care needs. The assessment concluded she was eligible for funding for nursing care only. This meant the cost of her care would not be met in full by health. The assessment noted Ms A struggled with her emotions which may have been a result of her brain haemorrhage. The fact she could not return home was playing on her mind. The case notes show Ms A’s financial contribution was discussed with her. Ms A’s partner, Mr B, visited the home on 8 October 2015.
- On 16 October 2015, an officer discussed the placement with the manager of the home. She advised there was a shortfall of £600 a week once the Council and nursing care funding had been taken into account. The home advised it ‘did not do third party top ups’. However, it would appear that the home considered it could meet Ms A’s needs at this point. The officer agreed to ask Ms A’s family to explore other placement options.
- On 23 October 2015, the case notes show Ms A’s social worker contacted eight different homes for younger people. However, none were appropriate for reasons such as not having vacant beds, the distance from the family home or requiring a third-party top up, which the family could not afford. Further, Ms A considered one of the options and became very upset at the prospect of not being placed in her preferred home. Ms A explained her preferred placement was the most easily accessible for her son and it was on the way home from her partner’s workplace. Of the two other options, one was approximately 45 minutes’ drive from the family home. The other, while only a 15-minute drive, appeared to cater for predominantly older people (50+) even though one of the registered care categories was ‘younger people’.
- An email chain between the Council and LECCG in November 2015 clarifies funding arrangements. The email exchange shows the Council asked LECCG to share the cost of the placement to facilitate Ms A’s discharge from hospital. The emails confirm the placement was more expensive than other placements proposed by the Council.
- On 9 December 2015, Mr B met with health and social care officers. Ms A’s social worker explained he had asked LECCG to consider funding temporarily for the home. An officer from the hospital explained that if funding was not agreed, Ms A would be discharged to a different short-term placement that was not her home of choice but that could nonetheless meet her needs. The same day Ms A’s social worker emailed the ULH Trust explaining the Council was trying to resolve the funding issue. He explained the family considered the home was the only ‘…suitable placement that will promote family life and prevent isolation.’
- The Council suggested in one of its emails that if LECCG was not prepared to share the additional cost of the placement, it would need to place Ms A in a nursing home. On this basis LECCG agreed to fund the placement jointly with the Council. It is clear to me from the email exchange that LECCG only intended to joint-fund the placement as a temporary measure to enable Ms A’s discharge from hospital. Ms A moved to the home on 23 December 2015.
- The November assessment identified that an unsuitable placement would impact on Ms A’s emotional wellbeing. This is important in light of the fact the family considered the placement was the only one suitable to promote Ms A’s emotional wellbeing. The Council, in commenting on my draft decision, has pointed out that it offered a placement that was close to the family home and could meet Ms A’s physical needs. I accept the Council considered Ms A’s emotional needs in term of being close to her family.
- However, I have not seen evidence that the Council considered the impact on Ms A’s emotional wellbeing of being in a home for predominantly older people, where this was clearly identified as a concern in the assessment. In my view, the Council should have considered whether the placement was the only option for promoting Ms A’s emotional wellbeing and, to this end, whether it should fund the placement outright. This is evidence of fault.
- Ms A was ultimately discharged to her home of choice. However, for the period between October and December 2015 she suffered a degree of uncertainty about whether she would be discharged to a suitable placement. It is unclear whether, if the Council had considered the impact on her emotional wellbeing of being placed in a home for older people, it may have concluded that the home was the only suitable placement due to her emotional needs. The fact the Council contacted several homes for younger people indicates it considered this type of placement was suitable. Ms A may have been discharged sooner if the Council had met the cost minus the nursing care element. I agree that Ms A would have been under considerable distress because of the uncertainty during this period, exacerbated by the fact her brain injury affected her emotional reactions.
Occupational therapy assessments
- An OT from ULH Trust visited Ms A’s property on 13 August 2015. The report from the visit concluded that access within the property was ‘extremely unlikely’. This was largely because of the size of Ms A’s wheelchair and the position of her right leg. The report explains it would have been difficult for Ms A to turn her wheelchair and therefore access the habitable rooms. Egress in the event of emergency was also very difficult and the layout of the habitable rooms were such that the OT commented this would impact on the provision of care. The report considered possible adaptations but concluded the property, without adaptations, was unsuitable.
- The clinical records from the visit note that there were ‘Considerable environmental challenges…anticipated.’ Taken together, the assessment report and clinical records reflect there was a risk to Ms A, especially in the event of an emergency and in terms of care provision, if the property was not adapted. I consider the assessment was detailed and considered possible adaptations. The assessor weighed the risks to Ms A and concluded she would be at risk if the property were not adapted. I therefore cannot conclude there was evidence of fault in the ULH Trust’s assessment.
- The clinical records show that the OT recommended a ‘gradual conversation’ with and support for Ms A around her needs and the challenges identified with returning to her property.
- On 20 August 2015, the OT discussed discharge with Ms A and Mr B. Mr B agreed to contact the property owner to ask whether it would allow adaptations to the property. The OT raised the possibility of financial assistance from the Council through a disabled facilities grant. On 25 September 2015 Mr K advised the landlord wished to speak with the OT. She spoke to the landlord two days later and was advised the adaptations would not be agreed. The landlord suggested Mr B contact a different housing association to explore alternative accommodation options.
- Over the following months Mr B attempted to secure an alternative property that was appropriate. As discussed above, the Council progressed with plans for discharging Ms A to an alternative placement.
- Ms A’s new social worker visited Ms A at the home on 12 February 2016. She discussed housing options with Mr B who advised that he had bid for a property but been declined.
- In May 2016, the Council made another OT referral. Ms A’s partner was struggling to identify a suitable property for Ms A. She required a two-bedroom, ground floor property due to being wheelchair-bound. The purpose of the OT referral was to identify Ms A’s accommodation needs. The OT contacted Ms A’s partner on 16 June 2016.
- The OT visited Ms A’s property on 20 June 2017. Following this visit, she investigated whether a grant might be available to adapt a property rather than identifying a property that was already suitable to accommodate Ms A’s wheelchair.
- Over the following month Ms A’s partner continued to search for available properties and bid on two-bedroom properties. However, it became apparent that these properties were unsuitable as they were too small to be adapted.
- A new OT was allocated to Ms A and on 8 August 2016 and decided to review the original OT report of Ms A’s property. This was in light of the lack of available, suitable two-bedroom properties. She reviewed the report the same day and took the view Ms A’s property could potentially be adapted. She agreed to visit on 16 August 2016. Following the visit, the OT spoke with the wheelchair service provider to explore whether Ms A could use a smaller wheelchair. Two days later the OT completed a proposal for adaptations to the property and wrote to the property manager to request permission.
- On 20 October 2016, Ms A’s social worker wrote to LECCG and the Council. She explained that the manager of Ms A’s estate had consented to adaptations that day. The letter explained the family could contribute to the adaptations but there would be a shortfall. She therefore requested the Council and LECCG consider meeting the shortfall and extend the period of funding for Ms A’s place at the home so she could remain there until the adaptations were completed. However, LECCG replied on 31 October 2016 advising it would not fund the adaptations. Further, it confirmed it would now only contribute the nursing care element of Ms A’s care at the home, rather than contributing towards the full cost as it had done previously.
- I have concluded there is no evidence of fault in the ULH Trust’s assessment. I therefore cannot reach a view that the property was safe for Ms A without adaptations. The case notes indicate that for the period to October 2016, Ms A’s landlord would not consent to the adaptations. This is not the fault of any of the organisations involved in this complaint. It seems the landlord’s view altered when the Council carried out another assessment.
- I have seen evidence that the Council’s OT went to some effort to persuade the landlord to agree the adaptations. The fact the landlord later consented is not in itself evidence that the first assessment, in 2015, was flawed. I cannot hold the Council responsible for the effort Mr B went to in trying to identify a different property for the period the landlord would not agree to the adaptations. The Council’s OT decided to review the possibility of adapting the existing property due to the lack of alternative suitable properties. She completed her proposal promptly after she assessed the property. The landlord took some time to agree to the proposal and asked for further information several times before agreeing. I therefore do not consider there is fault in the OT’s actions as the reassessment only took place as a result of the lack of available housing stock.
Proposal to move Ms A
- During an assessment visit in February 2016, LECCG advised it no longer considered it was responsible for funding the health element of Ms A’s care as she had moved out of the area. The new CCG (NELCCG) advised it was not willing to agree joint funding for the placement to continue.
- Over the following months, LECCG and NELCCG disagreed about who should be funding the nursing element of Ms A’s care. Ms A’s new social worker attempted to clarify how the funding arrangement was agreed initially. She discovered the placement was paid for by the commissioning arrangement the Council had agreed with LECCG. It is therefore understandable NELCCG was reluctant to assume responsibility for the arrangement when it had not initially agreed and it. During these discussions, LECCG agreed to continue paying the non-nursing care element of its contribution until the end of the 12-week period it initially agreed. Ms A’s social worker discussed the funding issues with Mr B. LECCG agreed to extend funding until the end of April 2016. NELCCG agreed to fund the nursing element of Ms A’s care after this date.
- On 9 November 2016 LECCG withdrew its funding for the placement. Its rationale was that the placement was only intended to be temporary and Ms A was essentially only entitled to funding for the nursing element of her care.
- The Council wrote to the home on 16 November 2016. It advised that it would pay the full cost of Ms A’s placement until 28 November 2016. The adaptations were due to be finished by this date.
- I am concerned about the uncertainty around the funding arrangements for the placement. LECCG agreed the placement initially for 12 weeks. However, as no suitable alternative had been identified at the point, I do not consider it appropriate that no discussion appears to have taken place around what might happen after the 12 weeks had passed. The Council alluded to this in an email it sent to LECCG in June 2016 when it was trying to resolve the funding issue. I share the views expressed in that email that Ms A’s need to be close to her family was unlikely to have changed and the impact of a move on her psychological wellbeing needed consideration.
- As discussed above, it is not clear whether the Council should have funded the placement entirely as I have not seen evidence it considered Ms A’s emotional wellbeing, in terms of being places in a home for older people, when it assessed her. However, I consider the lack of clarity about funding arrangements and ongoing responsibility for this is evidence of fault. In the absence of a suitable property, it seems inappropriate to not have considered this when the initial funding agreement was made. This is fault on the part of the Council and LECCG. The fault has caused uncertainty for Ms A.
Top up fees
- A note on 16 December 2015 with Ms A’s social worker suggests financial contributions were discussed. The note says it was explained to Ms A that she would need to contribute a weekly amount towards her care. Her social worker explained that the Council would need to complete a financial assessment to determine what the contribution amount would be and that ‘This was understood.’
- The Council wrote to Ms A on 29 December 2015. It confirmed the placement was jointly-funded by the Council and LECCG. It confirmed the placement was initially for 13 weeks. It also made it clear Ms A would need to pay a contribution towards the Council’s element of the funding. The letter makes it quite clear that it would cover the contribution until it could assess Ms A’s finances as she was awaiting the outcome of her application for benefits. The letter says ‘...there will be a debt accruing whilst your contribution is calculated.’
- This was not a third-party top up. The Council was entitled to charge a contribution for Ms A’s care based on a financial assessment. I have seen evidence this was discussed with Ms A more than once and no charge was made until the Council was able to assess her entitlements. Further, the case notes show Mr B disputed Ms A’s contribution following the financial assessment. He explained Ms A received a different rate of benefit at the start of her placement. The Council questioned whether the contribution was causing financial hardship and it reduced the contribution for the initial period Ms A was resident in the home. I therefore do not consider there is evidence of fault. The Council was entitled to charge a contribution and this was clearly explained.
Delay in care package at home
- I have seen evidence the Council arranged to assess Ms A in February 2016 to determine the package of care she would need when she was able to return to live with her family. At this point Mr B was continuing to try to identify a suitable alternative property.
- I have also seen evidence that Ms A’s social worker was considering her needs even before the landlord agreed to the adaptations. I also understand she had contacted at least one care provider to determine whether it could meet Ms A’s needs at home. There is evidence of liaison with several teams to determine Ms A’s needs at home. Ms A’s social worker met with Ms A and her family on 10 October 2016 to discuss a care plan for Ms A at home. The care plan was sent to the Council’s contracting department on 1 November 2016 and the request for a care package sent to a provider the same day. On 14 November 2016, the care provider advised they were unable to provide the necessary care. The same day the Council amended the care plan and renewed the request.
- On 22 November 2016 Ms A’s social worker learned the request had been declined again. She contacted an alternative provider to confirm it had received the request. The Council’s commissioning team chased the request on 28 November 2016. On 30 November 2016, an internal email chain suggests the provider may offer the required care if Ms A’s care plan was rewritten to include additional care. In the first two weeks of December 2016 the provider explained it did not have capacity to offer care but was trying to subcontract parts of the care package. In early January 2017, Ms A’s social worker queried the timescales around the provider being able to offer care. The provider offered a care package on 18 January to start on 13 February 2017.
- I have seen evidence the Council began planning for Ms A’s return home at an early stage once the landlord agreed the adaptations. I have also seen evidence Ms A’s social worker continued to try to secure a care package before and after the adaptations were completed. However, I have seen no evidence the Council explored alternatives between late November 2016 and 18 January 2017 while it was waiting for an offer from one provider. This is evidence of fault. I appreciate Ms A’s social worker attempted several times to move the mater forward and I acknowledge these efforts. However, had the Council given the provider a strict timeframe for deciding whether it could provide care, or look at alternatives, Ms A may have been able to move home sooner. The delay has impacted on Ms A’s choice around how her care would be delivered during this period.
- The Council will apologise to Ms A for the distress she suffered between October and December 2015 while she was waiting for funding for the place at her preferred home. It will also pay her £750 to recognise her distress and uncertainty for this period.
- The Council and LECCG will apologise to Ms A for the failure to clarify funding arrangements past the initial placement period. They will also each pay Ms A £125 to recognise the uncertainty she experienced around this.
- LECCG will apologise to Ms A for the lack of clarity around the funding request for the placement at the Goole unit. It will also pay Ms A £150 to recognise the delay this caused to her being transferred to a rehabilitation unit.
- The Council will apologise and pay Ms A £100 for the delay in putting in place a care package so she could return home between November 2016 and January 2017.
- The Council and LECCG should complete the above actions within one month of my decision.
- There is no evidence of fault in the proposal to move Ms A to the Grimsby stroke unit. The NLG Trust only became aware of the ambulance service’s availability later in the day and acted appropriately in response.
- There is evidence of fault around the arrangements for the Goole rehabilitation unit but not in the transfer to Lincoln County hospital. The NLG Trust made the latter arrangement promptly. However, it is not clear whether LECCG considered the referral for the Goole placement.
- Ms A’s discharge was delayed due to funding considerations and I have not seen evidence the Council properly considered the impact of placing Ms A in a home for predominantly older people. This is evidence of fault on the Council’s part. It was also inappropriate that the Council and LECCG did not consider funding arrangements following the initial period of 12 weeks. This has caused Ms A distress and uncertainty.
- There is no evidence of fault in the OT assessments and recommendations. The delay in the adaptations appears to have been largely a result of the landlord’s reluctance to agree.
- The Council did not charge a top-up fee. It charged a contribution towards the cost of Ms A’s care. It explained this to her and it was entitled to charge.
- There is fault in the Council’s failure to take further steps to progress Ms A’s care package at home. The delay has impacted on Ms A’s choice of care provision.
- The organisations have agreed to remedy the injustice to Ms A. I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman