Hull and East Yorkshire Hospitals NHS Trust (17 019 371a)

Category : Health > Hospital acute services

Decision : Upheld

Decision date : 09 Aug 2019

The Ombudsman's final decision:

Summary: The Council has admitted delaying in sending an invoice, which is fault. But there is no evidence of an injustice as Mrs X was liable for care charges. The Trust acted with fault in not being able to show it had considered Mrs X for continued health care funding but there is no evidence of injustice as it is unlikely Mrs X was eligible for health funding. The Ombudsmen also found fault with the Council in not carrying out a joint complaint investigation with the CCG. However, there was no injustice to Mrs X and Mrs Y and our investigation picked up the Trust and CCG’s evidence. The Ombudsman have recommended service improvements to remedy the faults identified.

The complaint

  1. Mrs Y complains on behalf of her mother, Mrs X. She complains about the service received from East Riding of Yorkshire Council (the Council), Hull and East Yorkshire Hospitals NHS Trust (the Trust) and East Riding of Yorkshire Clinical Commissioning Group (the CCG) in relation to funding arrangements.
  • Specifically, Mrs Y says her mother should not have been charged for the initial stay in a care home after a hospital discharge. She says this initial stay was intermediate care to rehabilitate her mother to return home.
  • She complains about the Council’s failure to properly explain the charges for care home fees and says she received an invoice for her mother’s care fees about a year later than she should have.
  • Mrs Y also says the Trust failed to assess Mrs X for continuing health care (CHC) funding via the CHC checklist.

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The Ombudsmen’s role and powers

  1. 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)
  2. The Ombudsmen provide a free service but must use public money carefully. They may decide not to start or continue with an investigation if they believe the injustice is not significant enough to justify their involvement. (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)
  3. 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).
  4. 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.
  5. 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

  1. I have considered the complaint information provided by Mrs Y. I have made enquiries of the bodies in jurisdiction and considered their responses. I sent Mrs Y my draft decision and read her response.

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What I found

Intermediate Care and Reablement

  1. Intermediate care and reablement support services are for people after they have left hospital or when they are at risk of going 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. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014).

Charging

  1. The Care Act covers care provision and charging rules.
  2. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last a limited period, such as respite care, or there is doubt that permanent admission is required. The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance 2014 set out charging rules for temporary residential care. When the Council arranges a temporary care home placement, it has to follow these rules when undertaking a financial assessment to determine how much a person has to pay towards the cost of this stay.
  3. Continuing Healthcare (CHC) is a package of ongoing care arranged and funded by the NHS, where an assessment concludes a person has a ‘primary health need’. For most people who may be eligible for CHC, the first step in the assessment is for a health or social care professional to complete a CHC checklist. If the completed CHC checklist indicates a person may be eligible for a CHC eligibility assessment, the next step is a full multi-disciplinary assessment.
  4. The Department of Health’s National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care is the key guidance about continuing healthcare. It states that where an individual is eligible for continuing healthcare funding the CCG is responsible. For this complaint I refer to the November 2012 guidance which was relevant at the time.
  5. If a person disagrees with the CCG’s decision, they can ask the CCG to review its decision. If they disagree with the outcome of the review, they can appeal to an Independent Review Panel (IRP) organised by NHS England and ultimately the Parliamentary and Health Service Ombudsman.

Complaint regulations

  1. The Local Authority Social Services and National Health Service Complaints (England Regulations 2009 set out how local authorities and NHS bodies should consider complaints made about social services and health functions. Regulation 9 refers to ‘duty to co-operate’ between health and social care bodies when one receives a complaint concerning the other body. This is to ensure that the complainant receives a co-ordinated response with the input of both bodies.

Key events leading to the complaint

  1. Mrs X’s three children hold power of attorney to act on their mother’s behalf regarding her finances. All three children, Mrs Y, Mrs Z and Mr W are involved in looking after their mother’s affairs.
  2. Mrs X used to live at home on her own with the support of carers visiting daily. After falling at home, Mrs X was admitted to Hull Royal Infirmary with neck pain. She stayed in hospital for 2 weeks where she was diagnosed with “with a fractured C6 at the base of her spine”. Mrs Y has listed several other medical conditions also suffered by Mrs X.
  3. Mrs Y says that, towards the end of Mrs X’s stay in hospital, the family were told Mrs X would be provided with respite care in the hope she could eventually return home. Mrs Y says she was given the impression there would be no charge.
  4. Mrs X’s children do not hold power of attorney for Mrs X’s social and welfare decision making, only for her finances. In these circumstances, the Council became responsible for Mrs X’s care management. It implemented the statutory ‘Best Interests’ decision-making process. This concluded that Mrs X lacked the mental capacity to decide between a respite stay from hospital or returning home. The Council decided Mrs X should have a respite stay in a care home. The Council says Mrs Z was involved during this process and agreed with this outcome.
  5. Mrs X stayed in a care home for four weeks of respite care between September - October 2016. After four weeks, she was moved to a different care home, at the family’s request, where she remains.
  6. In December 2016, the Council reviewed Mrs X at the second care home. It said Mrs X’s ‘delirium’ had reduced and she had mental capacity to decide where to live. The Council says Mrs X told it she wanted to stay at the second care home where she remains as a self-funding resident.
  7. Much later, in August 2017, Mrs X’s family received a bill of £2790.90 for the respite stay at the first care home.
  8. Mrs Y’s other complaint issue is that the hospital failed to consider Mrs X’s eligibility for continuing healthcare funding.

East Riding of Yorkshire’s complaint response

  1. The Council responded to Mrs Y’s complaint in some detail. It agreed with Mrs Y that there was an ‘unacceptable’ delay in sending the bill. It identified the reasons for this as a backlog of work in the finance team and administrative failure by the social work team in not completing a checklist. It made several recommendations including sharing the complaint learning with the finance team, making checklists available on the Council intranet and reiterating the process across all Adult Services Teams.
  2. However, overall the Council found its records showed that finances were discussed with all family members at various times. It considered that a bill would have been expected.
  3. Mrs Y also raised a related issue. She said the Council did not provide accurate information on the exact charge around the time of Mrs X’s discharge from hospital. The Council admitted it provided conflicting information. But said it could not provide accurate figures due to the family not providing Mrs X’s income/savings details (needed as care home charges are means tested) until late October.
  4. As part of the investigation, the Council also interviewed ward staff to find out why the continuing health care checklist had not been considered. It found no evidence to show if it had or had not been considered. It said, in effect, that local custom and practice was that clinical staff would normally take the lead and if they believed the patient would not meet the criteria for a full assessment, they do not start the process by completing the CHC checklist.
  5. The Council has now advised me that it will ensure a protocol is developed between the local authority and the CCG highlighting each organisation’s respective role with CHC checklists during hospital discharge.
  6. With respect to the intermediate care issue, Mrs Y did not make this complaint to the Council but added this element later in her complaint to us. The Council has advised that intermediate care was never an option. It has stressed that, due to Mrs X’s lack of capacity and confusion, it would have been unlikely to consider any type of rehabilitation at the time of discharge, as Mrs X was clearly unable to manage at home.

East Riding of Yorkshire Clinical Commissioning Group

  1. The CCG responded to my enquiries to say it received many referrals for CHC funding from the Trust. It said it expected referrers to follow the National Framework guidance.
  2. In response to the complaint elements it said it did not receive a checklist for Mrs X and it was not able to comment further due to the time elapsed. It added that as it was not involved in the complaints investigation it could not comment on the Council’s conclusion that nursing staff were using informal assessment practices rather than applying the guidance in the National Framework.

My analysis

  1. My final decision on the first complaint about intermediate care is there is no evidence of fault in the Council’s decision not to consider intermediate care. The Council’s records show both the family and the Council were concerned about Mrs X’s ability to cope at home. The Best Interest’s decision made was that one month’s respite stay in a care home was the most appropriate solution and in Mrs X’s best interests. The social worker recorded ‘during this time she may improve cognitively and the ability to make her own decisions may return in which case a new assessment of her capacity will be required’. There is no suggestion that intermediate care and rehabilitation was discussed at this stage in any context.
  2. On the second complaint, the Council acted with fault due to the delays in raising the bill for the respite stay. However, I do not consider there is evidence of a resulting injustice. The information supplied by the Council shows that charges were discussed on several occasions with Mrs X’s children (including Mrs Y) and the Council’s ‘notification of charge for the stay’ has been signed by Mrs Y’s brother, Mr Z. Therefore, it was reasonable for the family to have expected to be charged and the delay does not negate the legitimacy of the charge.
  3. With respect to the final complaint about the lack of a CHC checklist not being applied, my final decision is that both the Trust and the Council are at fault in not recording the reasons for not applying the CHC checklist. This is because the National Framework (relevant at the time) says the checklist can be completed by a variety of trained health and social care professionals both inside and outside of the hospital setting. It also says the screening should be considered at the right place and time when the affected person’s health needs are established. Having said this, I do note that at the later review in December 2016 social workers recorded that CHC was not applicable. I also note that the family’s later request for CHC funding was turned down. So, I do not consider any injustice to Mrs X arose as it seems very unlikely that she would have been eligible for CHC funding.
  4. Although Mrs Y has not raised this, I found fault with the Council’s complaints handling. The Council failed to formally involve the CCG and investigate the complaint ‘jointly’ in line with the statutory complaint regulations. This meant the CCG/Trust had no input in to the Council’s findings. Although this was remedied when I made enquiries to the CCG and there was no personal injustice caused to Mrs X or Y. The Council has apologised for this fault and says it will raise this with social care staff and the complaints team.

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Recommendations

  1. I recommend the Council provides evidence to the Ombudsman that its complaint investigation recommendations have been implemented, namely:
  • that finance officers were reminded to raise invoices promptly;
  • checklists are now available on the intranet for staff to complete; and,
  • Adult Services managers reinforced to staff the importance of recording all CHC checklist consideration (including any decision not to request a CHC checklist).
  1. I recommend the Council also provides evidence of the new local protocol decided between it and CCGs to consider the application of CHC checklists in hospital discharge pathways.
  2. I recommend the Council reviews its complaints process to ensure it is in line with Local Authority Social Services and National Health Service Complaints (England) Regulations 2009.
  3. I recommend the CCG reviews its CHC checklist process to ensure compliance with the current National Framework.
  4. The Council and Trust should complete these actions within three months of my final decision.

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Final decision

  1. There is no fault by the Council in not considering intermediate care for Mrs Y as the evidence suggests it was not appropriate.
  2. There is fault by the Council in delaying sending an invoice but there is no evidence of an injustice as Mrs X was liable for care charges.
  3. The Trust and the Council acted with fault in not recording if it had considered applying the CHC checklist but there is no evidence of injustice.
  4. The Council acted with fault in not carrying out a joint complaint investigation but there is no injustice to Mrs X or Y.
  5. The Ombudsman have recommended service improvements to remedy the faults identified.
  6. The Council and Trust have agreed to my recommendations and on this basis, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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