Decision : Closed after initial enquiries
Decision date : 25 Nov 2020
The Ombudsman's final decision:
Summary: We will not investigate Mr L’s complaint about arrangements for his mother’s discharge from hospital in November 2018. The complaint is late and we have not seen sufficient reasons to investigate it now.
- Mr L complains about the Council and Trust’s actions in arranging his mother’s discharge from hospital in October 2018. He complains his mother was not allowed to be discharged to her own home, which was her wish and her family’s. Instead she was discharged to a care home. Mrs L did not have capacity to make this decision herself, so the Hospital Discharge Team and Social Services made the discharge arrangements.
- Mr L complained the Trust and Council did not follow the right processes, including they did not adequately consult with Mrs L’s family about where she should be discharged. Mr L also complained about failings in the process for assessing his mother’s eligibility for NHS Continuing Healthcare funding. The relevant Clinical Commissioning Group (CCG) is looking at those parts of his complaint and we have not included them here.
- Mr L wants the Council and Trust to acknowledge what went wrong and to change their processes so this does not happen to another patient and their family in similar circumstances.
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, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
How I considered this complaint
- During my consideration of this complaint, I spoke to Mr L and read the information he sent me. I also looked at the complaint responses and correspondence with the Council and Trust, and I asked them for information about how they had handled Mr L’s complaints, which I then considered. I also got information from the CCG.
- I shared a draft of this decision with Mr L and considered his comments on it.
What I found
- Mrs L went into hospital in 2018 after a fall at home. Before she went into hospital she had been living at home with a package of care and support. Mrs L had told her family she wanted to return home and ultimately to die at home. Her family also wanted her to return home with an increased package of care.
- Mrs L was assessed as not having capacity to decide where she should be discharged to. The Hospital Discharge Team and Social Services made the discharge decisions and arrangements. They spoke with Mrs L and her family, and decided she should be discharged to a short-term care placement where she could have further assessments.
- Mrs L was discharged to a care home on 30 October 2018.
- A social worker completed a checklist in November 2018 to see whether Mrs L might be eligible for NHS Continuing Healthcare Funding for the costs of her care. The social worker told Mr L the checklist indicated his mother should have a full assessment for NHS Continuing Healthcare funding. However, a full assessment did not take place as the CCG said the checklist did not show Mrs L met the threshold for a full assessment.
- The Council assessed Mrs L’s finances and decided she should pay a contribution towards the costs of her care. The Council discussed a deferred payment scheme with her family.
- Mr L complained to the Council and Trust in February 2019 about the arrangements for his mother’s discharge from hospital including the decision to place her in a care home. He also complained about failings in the communication with him about how the care home would be paid for and whether his mother would be eligible for NHS Continuing Healthcare funding.
- The Council and Trust responded to Mr L’s complaint in April 2019. Mr L then engaged a solicitor to deal with matters on his behalf. The solicitors mostly dealt with issues about Mrs L’s eligibility for NHS Continuing Healthcare funding and concerns around Deprivation of Liberty Safeguards (DoLS). From the information we have seen, most of Mr L’s solicitor’s correspondence with the Council and Trust was between March and November 2019.
- Mr L’s solicitor emailed him on 2 September 2019 to explain he was not instructed to act for Mr L about the complaint to the Council or the Trust. The solicitor said he had been “ascertaining the position of how your mother was transferred to the care home, but have not prepared a complaint in respect of this”. At that point the solicitor’s role appears to have been solely about pursuing NHS Continuing Healthcare Funding.
- Mrs L’s condition deteriorated and she died in October 2019.
- Mr L made a follow-up complaint to the Council in late October 2019. The Council said the complaints process had ended, and that if Mr L was unhappy he should contact the Ombudsman.
- Mr L told us the Council has put a hold on asking him for the outstanding care home fees from his mother’s estate, whilst he follows up his complaint including his complaint about eligibility for NHS Continuing Healthcare funding. Mr L told us the outstanding fees amount to around £10,800.
- Mr L also told us he waited for updates from his solicitors after November 2019 but did not hear much. He then learned his solicitor had been furloughed due to the COVID-19 pandemic in March 2020. Mr L said he later learned in July 2020 that his solicitor had left the firm.
- Mr L said at that point he decided to pursue matters himself, and he made a complaint to the CCG and to the Ombudsman in August 2020.
- We expect a complainant to bring their complaint to us within 12 months of them becoming aware of the issues they wish to complain about. If complaints come to us after 12 months we consider them to be ‘late’. In some circumstances we may still be able to investigate even if a complaint is late.
- Mr L complained to us in August 2020 about the decision to discharge his mother to a care home placement in October 2018. This means his complaint to us about this issue is outside the 12‑month time limit and is late. I have carefully considered the reasons Mr L has given for not complaining to us about this issue sooner, to decide whether there are good reasons for the delay and whether we should investigate his complaint even though it is late.
- I have not seen sufficient reasons for us to investigate Mr L’s complaint about events in October 2018 about where his mother should be discharged to from hospital. As outlined above, we are not considering Mr L’s complaints about his mother’s eligibility for NHS Continuing Healthcare funding. The CCG is looking at these issues so they are not ready for us to consider.
- Mr L said he did not complain to us about the decision about his mother’s discharge arrangements until August 2020 because he thought his solicitors were dealing with this matter. He said he had hoped the solicitors would deal with all the issues for him (discharge placement, funding, Deprivation of Liberty safeguards and related matters). He also said he had difficulties contacting the solicitors from late 2019 onwards, and this combined with his solicitor being furloughed and later leaving the firm led to delays in him progressing these matters.
- The information I have seen shows Mr L may initially have thought his solicitors were dealing with his complaint about his mother’s discharge destination as well as matters relating to NHS Continuing Healthcare funding and Deprivation of Liberty Safeguards. However, Mr L’s solicitor emailed him in early September 2019 to clarify what he was dealing with on Mr L’s behalf. The solicitor said he was not dealing with the complaint to the Council (or Trust) and Mr L had not instructed him to do so. I have not seen any evidence of Mr L trying to pursue the complaint with the Council or to bring it to the Ombudsman after late October 2019. By that point, Mr L had been told his solicitor was not dealing with this matter, and the Council had told him the complaints process had ended and he could complain to the Ombudsman. Mr L did not make his complaint to the Ombudsman until August 2020, 10 months later.
- I do appreciate the difficulties posed by Mr L’s solicitor apparently not keeping him updated, then being furloughed, and later leaving the solicitor’s firm. However, there is also an onus on complainants to proactively pursue their complaints, and there is little evidence of Mr L doing this from late October 2019 onwards.
- I appreciate that Mr L has been through a challenging period due to his mother’s deteriorating health and her subsequent death in late 2019. However, taking everything into account, I have not seen sufficient reason for the significant delay in Mr L bringing this complaint to the Ombudsman. On that basis, I have not seen grounds for us to exercise our discretion and set aside the 12‑month time limit to consider this late complaint.
- We will not investigate Mr L’s complaint about arrangements for his mother’s discharge from hospital in October 2018. I recognise his strength of feeling about this matter, but the complaint is late and I have not seen sufficient reasons for us to investigate it now.
Investigator's decision on behalf of the Ombudsman