Summary: The Ombudsmen’s view is there was no fault by the Council in the assessment of Mr H’s eligibility for social care support. It is also our view that there was no fault by the Council or Trust in the arrangements for Mr H’s discharge from hospital.

The complaint

1. Mr C complains about the service his brother Mr H received from Lancashire County Council (the Council) and Lancashire Care NHS Foundation Trust (the Trust) leading up to his discharge from hospital on 17 November 2017.
2. Mr C specifically complains about a social care assessment carried out by a Council social worker on 26 October 2017. He says the assessment incorrectly concluded his brother had no social care needs despite his brother having muscular dystrophy which impacted on his ability to carry out activities of daily living. Mr C believes the social worker was motivated to find the cheapest way to deal with his brother’s case. He believes the outcome should have been that his brother required a residential placement with support from carers.
3. Mr C says his brother was of no fixed abode and had only £400 in funds. He says because of this the Trust should not have discharged him with just a handwritten list of B&B’s where he could stay. He is unhappy the Council allowed this to happen and believes it should have done more. Mr C says B&B accommodation would not have been suitable due to his brother’s physical and mental health needs. Mr C believes his brother should have been discharged from hospital to a care home.
4. Mr C says as a result of the Trust and Council’s actions he and his brother suffered significant distress and worry as they felt Mr H was inappropriately discharged without the correct support. As an outcome to his complaint Mr C is seeking systemic improvements and a financial remedy.

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The Ombudsmen’s role and powers

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. 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.
7. When considering complaints, if there is a conflict of evidence we make findings based on the balance of probabilities. This means we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. The Ombudsmen cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
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. As part of my investigation of this complaint I have considered:
• Information Mr C provided in writing and verbally
• Written information from the Trust and Council
• Relevant legislation and guidance
11. I invited all parties to comment on a draft of this decision. I have taken all comments into account before making my final decision.

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What I found

Law and guidance

Hospital discharge

12. Leaving hospital after an inpatient stay is part of a process and not an isolated event. Planning should start at the earliest opportunity and it should involve health and social care staff in the hospital and community working together. The process should lead to a personalised plan for each patient who is leaving hospital. Good discharge planning should help patients leave hospital safely, without delay and with suitable support ready in the community. Where patients no longer need hospital inpatient care, they do not have the right to indefinitely occupy an NHS bed. Key guidance about this is the Department of Health’s Ready to go? Planning the discharge and transfer of patients from hospital and intermediate care, published in 2010. I will refer to this as the ‘Ready to go guidance’.

Local authority assessments

13. Sections 9 and 10 of the Care Act 2014 require Councils to carry out an assessment for any adult who appears to have a need for 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, how they 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 involved.
14. The Council must carry out the assessment over an appropriate and reasonable timescale taking into account 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 process.
15. The eligibility threshold for adults with care and support needs and carers is set out in the Care and Support (Eligibility Criteria) Regulations 2014. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. For a person to have needs which are eligible for support, the following must apply:
1. The needs must arise from or be related to a physical or mental impairment or illness.

As a result of the needs, the adult must be unable to achieve two or more of a number of outcomes, including managing and maintaining nutrition, maintaining personal hygiene, being able to make use of their home safely, and making use of necessary facilities or services in the community.

2. As a consequence of inability to achieve two or more of the named outcomes, there is likely to be a significant impact on the adult’s well-being.
2. Where councils have determined that a person has any eligible needs, they must meet those needs. When the eligibility determination has been made, councils must provide the person to whom the determination relates (the adult or carer) with a copy of their decision.

What happened

17. Mr H has muscular dystrophy, a long-term condition that affects muscle function. Symptoms include gradually worsening muscle loss and weakness. He also has diabetes. Mr H bought a third-floor flat in 2012 but was unable to live in it as he could not climb stairs and there was no lift. He lived in rented accommodation but, due to rent arrears, eviction processes started in 2017.
18. In August 2017 Mr H was admitted to a mental health unit run by the Trust on an informal basis (not detained under the Mental Health Act) due to concerns about his mental health. The unit was run by the Care Trust but was on the site of a local acute hospital run by a different NHS trust. Mr H remained an informal patient on the unit until 17 November 2017.
19. On 18 August the Trust’s occupational therapists took Mr H to a meeting with a different Council (the Borough Council), to talk about his accommodation needs after discharge from hospital. The Borough Council said Mr H was not eligible for Housing Benefit as he owned a property. But if Mr H took reasonable steps to try to sell his flat, the Borough Council could fund his rent for up to 26 weeks. It said Mr H would need a supporting letter from his hospital consultant to be considered a high priority for specific accommodation.
20. Mr H’s consultant psychiatrist confirmed on 24 August that Mr H needed ground floor sheltered accommodation to meet his physical and mental health needs. The consultant’s letter also said Mr H’s application should be given the highest level of priority as he was approaching being ready to be discharged from hospital.
21. The Borough Council told Mr H he could make bids for ground floor sheltered accommodation if he put his flat on the property market. Trust staff offered Mr H support to use computers there to look for and bid on suitable housing association properties.
22. The Trust held a multi-disciplinary meeting to discuss Mr H’s case on 25 September. The team noted Mr H was self-caring in hospital and needed minimal assistance. The estimated date of his discharge from hospital at that point was 2 October, and staff were waiting for an update on Mr H’s accommodation situation.
23. On 26 September the Trust decided Mr H needed an assessment by social services before it could proceed with discharge planning. The Trust also advised Mr H to speak with his solicitor about putting his flat on the market to allow him to access sheltered accommodation.
24. The consultant reviewed Mr H on 28 September. Mr H acknowledged that the Trust was not providing any care, support or treatment that he could not also receive in the community. Mr H said he understood that he needed to put his flat on the market and hoped his brother, Mr C, would help with this.
25. Trust staff reviewed Mr H regularly during October. A number of times he said he was making arrangements to put his flat on the market, but he did not do this. Ward staff also noted during regular reviews that Mr H was largely settled, independently mobile, and independent with his daily activities.
26. Mr H had an unwitnessed fall from the bath on 24 October and did not suffer any significant injury. Later that day he told the Trust discharge coordinator that his brother had not put his flat up for sale.
27. The Council social worker started her assessment of Mr H on 26 October and spoke with an occupational therapist involved his care. The social worker noted Mr H had poor physical health but was able to mobilise slowly without using aids. She noted Mr H was unable to claim benefits due to fraud, and had debts. She noted he was receiving approximately £300 per month through a Personal Independence Payment (PIP) and was repaying approximately £100 each month due to benefit fraud. The occupational therapist said Mr H could not manage stairs and needed a ground-floor flat with a walk-in shower.
28. On 27 October the Trust confirmed Mr H had £422.44 in his bank account. The social worker said she was trying to sort out Mr H’s PIP payment. She said he would have to pay for B&B accommodation after discharge, and that she would refer him to Lancashire Wellbeing. She also agreed to update Mr H’s brother Mr C, and she left a telephone message for him on Sunday 29 October.
29. On 31 October the Trust wrote to Mr H to tell him he would be discharged on 6 November. If his flat was on the market he could potentially be referred to an NHS step-down facility (a short-term placement for patients discharged from hospital but not quite ready to care for themselves at home), and could start bidding on sheltered accommodation. If his flat was not on the market he would have to identify a B&B to go to on discharge. The letter provided contact details for Lancashire Wellbeing and advised Mr H to contact them urgently for support. The letter also said ward staff would help Mr H accessing the internet to try and resolve his housing situation. The social worker tried to contact Mr H’s brother Mr C to update him but was unable to make contact.
30. Mr H’s consultant met with him on 31 October. Mr H was unhappy as he felt the social worker had not recognised his mental and physical health needs. The consultant said staff had tried to support Mr H with housing but he had not put his flat on the market as requested, which meant he had lost out on sheltered accommodation. The consultant told Mr H he would be discharged on 6 November, and to use the time left in hospital to sort out his accommodation issues.
31. Ward staff spoke with Mr H on 1 November about his discharge destination. They documented he was ‘quite angry stating he will never be able to find a suitable B and B for him so he will be on the streets’. Staff spoke with him again on 2 November, and said they had found a disabled access B&B in the Chorley area which was £230 for 7 days. Mr H said this was too expensive.
32. Mr C spoke with the hospital on 2 November. He said he was very unhappy with plans to discharge Mr H to a B&B and felt this had been ‘dropped’ on him. He said staff had not made him aware that Mr H’s flat had to be put on the market before he could bid for sheltered accommodation. Mr C said he felt Mr H needed placing in supported housing or residential care.
33. The Trust sent Mr C a list of B&B accommodation, and details of the date and time of the discharge meeting.
34. The social worker also spoke with Mr C on 2 November before finalising her assessment of Mr H’s needs. Mr C said he felt his brother needed 24-hour care or sheltered accommodation, and he did not want him to be placed in B&B on discharge from hospital. The social worker completed her assessment of Mr H’s needs on 3 November. She concluded Mr H was able to live independently and did not meet the criteria for social care support with his accommodation after discharge from hospital. She said there was no need for social services input, and she was not recommending 24-hour residential care as Mr H did not need it. She said the Trust would refer Mr H to the CMHT, and she would ask Lancashire Wellbeing to contact him about his debt and housing issues.
35. Between 3 and 10 November 2017, hospital staff spoke with Mr H a number of times about his discharge plans. He said he had not contacted the B&B’s yet, or Lancashire Wellbeing.
36. A member of ward staff spoke with Mr H on 6 November and said he could be trying to resolve the housing situation as the Trust had put back the date of the discharge meeting to 13 November. Staff documented that Mr H replied it was ‘not his job’ to do this, it was his brother’s, and he would leave it up to him.
37. On 10 November Mr H was noted to be unhappy at being ‘thrown out’ of hospital. The consultant explained the lengths staff had gone to in supporting Mr H with his discharge plans.
38. The discharge meeting took place on 14 November. Mr C said he was unhappy the hospital was discharging his brother and that he had not been informed. The Trust agreed to give Mr C and Mr H two more days, until 16 November, to look for B&B accommodation for Mr H.
39. On 15 November Mr C contacted Lancashire Wellbeing and the Trust to say if he did not come to the hospital the next day to collect his brother he would not be able to be discharged. The Trust said the discharge would go ahead whether or not Mr C was there. The Trust said they had asked Mr H many times to keep his brother informed, and that he had capacity to make decisions.
40. On 16 November a member of Trust staff offered to support Mr H in finding a suitable ground floor B&B. Staff noted in the records that Mr H ‘did not want help’ and could not be persuaded to do anything he did not want to do.
41. Later on 16 November Mr H had an unwitnessed fall. He was taken to A&E for assessment and they did not find any significant injuries. The discharge co‑ordinator confirmed that if Mr H had no injuries he would be discharged as planned.
42. On 17 November Mr C came to the hospital to collect Mr H. Staff noted he was irate as he felt he had not had enough notice of Mr H’s discharge. The discharge care plan said Mr H should tell the Home Treatment Team about his living arrangements after discharge, and he would receive 48-hour follow-up from them. Lancashire Wellbeing would also be involved.
43. At around 2pm on 17 November ward staff were told that Mr H had fallen in the hospital car park on the way to his brother’s car. A nurse said she had offered help but Mr C and Mr H had declined. Mr C called the ward shortly afterwards and asked why they would discharge someone if they could not even walk a few feet. Mr C asked the Trust to call an ambulance, but staff advised him to make the call himself as he was with Mr H and would be better able to give an account of the situation.
44. Mr H was re-admitted to hospital the same day. He remained in hospital for approximately one month. A different social worker assessed him on 15 December. The new social worker noted Mr H needed the assistance of one person with personal care, and the supervision of one person when mobilising as he was very unsteady walking short distances and was unable to manage stairs. The social worker also noted Mr H had a high risk of falling. The social worker said Mr H had a number of eligible social care needs. They said he needed a short-term residential placement so he could be discharged from hospital and his family could then try to arrange suitable sheltered accommodation for him to go to.
45. Mr H was discharged to a residential placement. A further review by social services in April 2018 decided the best option was for Mr H to remain in 24-hour care on a long-term basis. The social worker concluded Mr H would be at risk if he went back into the community as he was vulnerable and not able to cope.

The complaint

46. Mr C complained to the Council and Trust. He said his brother did not have the financial means to support himself after discharge from hospital. He said his brother was not able to carry out the tasks the hospital and social services had asked of him to find accommodation to go to after his discharge. Mr C said he had been very concerned about the plans for his brother’s discharge due to his history of falling. He said the social worker was unsympathetic to his concerns. Mr C also said staff had not made him aware of the urgency of the situation.
47. Mr C complained about the actions of the Trust and Council in discharging his brother to no fixed abode and with no arrangements made to secure any income or benefits for him. Mr C told us he was unhappy with the response to his complaint as he felt it was inadequate and merely served to corroborate his original complaint.

Analysis

Social care assessment of need

48. Mr C complained the social care assessment carried out on 26 October 2017 wrongly concluded Mr H had no eligible social care needs. Mr C said he believes the social worker was motivated to find the cheapest way to deal with his brother’s case. Mr C believes the outcome of the assessment should have been that his brother required a residential placement with support from carers. In particular, Mr C said his brother was only able to walk for a few yards. Mr C said his brother was incapable of getting up from a seated to standing position due to extreme weakness in his legs, and had to sit on a raised bed in order to be able to get up independently at all.
49. The Council told us that when the social worker assessed Mr H she noted he was managing independently with his daily social care needs, and that he was also supported by his brother. The Council said Mr H told the social worker he could not return to his flat but that he had funds and resources to seek alternative accommodation, and that he was not in financial hardship. The Council said hospital staff had seen Mr H leaving the ward to withdraw money from his bank to buy provisions for himself. The Council said the social worker’s assessment concluded Mr H did not require 24-hour residential care. The social worker considered him as being independent with daily living tasks, and that his primary need at that time was in relation to housing.
50. As part of the social worker’s assessment of Mr H’s eligible social care needs, she interviewed Mr H, ward staff at the hospital, the hospital discharge co‑ordinator, and the occupational therapist. She also spoke with Mr C on 2 November before finalising her assessment. The social worker’s assessment concluded that Mr H was able to live independently in the community. However, she noted he needed support with managing his finances and with his housing problems, and said the Council would refer him to Lancashire Wellbeing to support him after discharge from hospital. The social worker also noted the hospital team agreed to make a referral to the Community Mental Health Team and to look for B&B accommodation, which she said Mr H had enough money to pay for.
51. The Trust told us an occupational therapist saw Mr H on 15 August 2017 and that Mr H said he was independent with his activities of daily living including washing, dressing and toileting. Mr H also said a physiotherapist had recommended a walking aid but he had declined this. The Trust told us a physiotherapist saw Mr H in hospital on 8 September 2017. The physiotherapist noted Mr H was able to get up independently from bed to standing, and could walk independently for about 10 metres but needed to use furniture intermittently to support himself. The physiotherapist noted Mr H was unsteady at times but declined the use of a walking aid or stick as he did not feel he needed one. Mr H told the physiotherapist that he was bound to deteriorate due to his condition and wanted to walk unaided for as long as possible.
52. The hospital records include a number of entries during Mr H’s admission stating that he was self-caring, was independently mobile, and required minimal assistance. After the physiotherapy review on 8 September, there are at least eight entries that refer to Mr H as being independently mobile, up to and including 13 November.
53. It is not the Ombudsmen’s role to decide what, if any, care and support a person needs. That is a matter of professional judgement following assessment. The Ombudsmen’s role is to consider whether the Council has followed the correct process to assess and establish a person’s needs.
54. As outlined above, as part of the social worker’s assessment of Mr H’s eligible social care needs she interviewed Mr H and relevant hospital staff, and spoke with Mr C. Information documented in Mr H’s hospital medical records supports the social worker’s assessment that Mr H was independently mobile and independent with his activities of daily living.
55. The social worker’s assessment took into account relevant factors in line with the requirements of the Care Act. The Ombudsmen cannot question the outcome of a needs assessment where there is no evidence of fault in the way the organisation reached the decision. Mr C does not agree with the conclusion of the social worker’s assessment. However, as there is no evidence of fault in the way the social worker carried out the assessment I cannot question the decision reached.
56. A different social worker concluded Mr H did have eligible social care needs following an assessment on 15 December 2017. They recommended discharge to a short-term residential placement. This in itself does not mean the earlier assessment in October 2017 was flawed. The second assessment took place almost two months after the first. The records I have seen indicate Mr H’s mobility and his ability to carry out personal care had declined between these points in time.

Inappropriate discharge with no fixed abode or financial support

57. Mr C said the Trust and Council should not have allowed his brother to be discharged from hospital, with just £400 in his bank and no fixed abode. Mr C complained that B&B accommodation would not have been suitable due to his brother’s physical and mental health needs. Mr C believes his brother should have been discharged to a residential placement with 24-hour care.
58. The Council and Trust provided a joint complaint response. They said Mr H received support with discharge planning from several members of hospital staff. Ward staff helped him to bid on ground floor sheltered accommodation, and he was accepted and made a successful bid. However, this fell through as Mr H failed to put his flat on the market, despite staff asking him regularly about whether he was making progress with this. The Council said it identified that Mr H had sufficient funds to pay for bed and breakfast accommodation short-term. The social worker agreed to refer him to Lancashire Wellbeing for support with his debts and benefits.
59. The Council and Trust said that despite significant support from ward staff, Mr H failed to make progress in getting his flat put on the property market, and in contacting suitable B&B accommodation about availability. They said that on 14 November staff agreed Mr H and Mr C could have a further 48 hours before he was discharged, to try and identify a B&B to go to. On 16 November Mr H told ward staff he had a B&B to go to on discharge but would not tell them where it was. On 17 November, when Mr C collected Mr H from hospital, he told ward staff the name of the B&B that Mr H was going to on discharge.
60. The Trust and Council records confirm there were many attempts by staff to support and encourage Mr H to put his flat on the property market so he could access sheltered accommodation. The records also show Mr H was told about available support from Lancashire Wellbeing, and they show contact with Mr C about his brother’s situation and his discharge.
61. The medical records confirm that on 31 October Mr H’s consultant told him staff had tried to help and to provide him with time to address issues but this could not continue. Staff noted Mr H was ‘angry’ and ‘truculent in mood’ when they discussed discharge plans with him. They noted he was unhappy that he would be ‘thrown out of hospital’ and that it was ‘not his job’ to put the flat up for sale. The medical records for the period 2 to 16 November document attempts by staff to support Mr H with his discharge arrangements.
62. At the discharge meeting on 14 November staff documented that Mr H had capacity to make decisions and to plan for the future. They noted he had been provided with a great deal of support and assistance but had chosen not to take on the tasks required to plan for his discharge from hospital and for his future.
63. The Department of Health’s Ready to Go guidance on hospital discharge sets out that discharge planning should start early during a patient’s admission to hospital. The multidisciplinary team should work collaboratively to plan the discharge, and social care should be involved where appropriate, to assess the patient’s possible need for services after discharge. The Ready to Go guidance also makes it clear that patients (and carers where appropriate) should be involved in the discharge planning process. They should be given ’good information and helped to make care planning decisions and choices’.
64. Having carefully considered the available evidence, it is my view that the actions of the Trust were in line with the expectations set out in the Ready to Go guidance. Hospital staff went to considerable lengths to try to support Mr H with discharge arrangements. In the main he declined to engage with this support and largely failed to take the actions asked of him. The medical records document that staff assessed Mr H as having the capacity to make decisions. The Mental Capacity Act 2005 makes it clear that people have the right to make decisions others might think are unwise, and where a person has capacity their right to make decisions must be respected.
65. I have not seen any evidence of fault in the way in which the Trust worked with Mr H to plan his discharge. I have also not identified any fault in the Trust’s decision to discharge Mr H from hospital on 17 November. It had already given Mr H and Mr C 48 hours to try and take steps to line up suitable accommodation following discharge. I consider it was reasonable for the Trust to go ahead with the discharge in the circumstances.
66. The Council records document that Mr H’s social worker liaised regularly with both him and Mr C about discharge plans. She explained that the flat needed to be put on the market, and that if this did not happen Mr H would need to go into B&B accommodation after discharge. She explained she had not found Mr H eligible for social care support, and that Lancashire Wellbeing could provide support in relation to housing and debt problems. I have not identified any fault in the way in which the Council’s social worker communicated with Mr H, Mr C and the Trust about discharge arrangements and the steps they needed to take.
67. The social worker’s assessment started on 26 October and completed on 3 November concluded Mr H had sufficient funds (around £400) to be discharged to B&B accommodation. The social worker also said Mr H would be referred to Lancashire Wellbeing for support with his finances and housing problems. The Council told us the social worker felt Mr H had sufficient funds to pay for bed and breakfast accommodation in the short‑term, and after discharge from hospital he could have approached the Borough Council about his housing situation.
68. The Council told us it did not find Mr H eligible for social care support, and it does not assess for or provide housing support. The Council said if it considers a person has urgent housing needs, it will refer to other organisations such as Housing and Lancashire Wellbeing. In Mr H’s case, the social worker recommended involvement of Lancashire Wellbeing. The hospital records confirm that Lancashire Wellbeing became involved on or around 6 November 2017 and the social worker was aware.
69. Having carefully considered the available evidence, I have not identified any fault by the social worker in relation to Mr H’s discharge arrangements. She had assessed his social care needs and not found him to be eligible, she had communicated appropriately with Mr H, Mr C and the Trust, and had signposted Mr H to Lancashire Wellbeing for support with his housing and debt issues. As Mr H was not found eligible for social care support, there was nothing further for the Council’s social worker to do at this point.

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Decision

70. There was no fault by the Council in the assessment of Mr H’s eligibility for social care support. There was also no fault by the Council or Trust in the arrangements for Mr H’s discharge from hospital.

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Investigator's decision on behalf of the Ombudsman