Summary: We consider Buckinghamshire County Council and Frimley Health NHS Foundation Trust were not at fault for the delay discharging Mr P from hospital. However, the Council did not appropriately update Mr P’s care and support plan following its assessment. While that did not cause Mr P an injustice, the Council should take action to reduce any potential impact on others.

The complaint

1. Mr G complains about Mr P’s delayed discharge jointly by Frimley Health NHS Foundation Trust (the Trust) and Buckinghamshire County Council (the Council). He refutes the Council’s suggestion the family refused any support. The delays meant Mr P was less likely to be able to return home with support. Mr G says events had a significant impact on Mr P’s physical and mental health. That failing also caused distress to Mr G and his wife at witnessing Mr P’s deterioration. Mr G would like the organisations to apologise and carry out service improvements.

Back to top

The Ombudsmen’s role and powers

2. 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).
3. When investigating complaints, if there is a conflict of evidence, we 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. 
4. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our 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)

Back to top

How I considered this complaint

5. I read the papers submitted by Mr G and discussed the complaint with him.
6. I considered the Council and Trust’s comments about the complaint and the supporting documents it provided.
7. Mr G and the organisations had an opportunity to comment on my draft decision.

Back to top

What I found

Relevant legislation and guidance

Hospital Discharge

8. Department of Health and Social Care issued statutory guidance: ‘Hospital discharge and community support guidance’ (the National Discharge Guidance) in April 2022 (updated January 2024). This provides guidance to NHS bodies and local authorities on discharging adults from hospital.
9. The Trust has its own ‘Policy and Procedure for the Safe and Timely Discharge of Patients from Hospital’. Specifically, it says the lack of vacancies at care homes can cause delayed discharge. However, patients must not wait in beds to wait for a vacancy to become available. Patients must move to an appropriate place to meet their need, and therefore every effort must be made to find a suitable alternative to hospital. That may be a temporary placement in another care home.

Mental Capacity Act and Best Interest Decisions

10. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
11. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity.
12. A key principle of the MCA is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision-makers must follow to determine what is in a person’s best interests. The decision-maker must also consider if there is a less restrictive option available that can achieve the same outcome.

Care and support

13. 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.
14. The Care and Support Statutory Guidance (CSSG) provides guidance to organisations to help implement adult care and support provided under the Care Act 2014.
15. Section 13.9 states: “If there is any information or evidence that suggests that circumstances have changed in a way that may affect the efficacy, appropriateness or content of the plan, then the local authority should immediately conduct a review to ascertain whether the plan requires revision. For example this could be where a carer is no longer able to provide the same level of care, there is evidence of a deterioration of the person’s physical or mental wellbeing or the local authority receives a safeguarding alert.”

Background

16. Mr P suffers with a learning disability and epilepsy. He lived at home with his mother, Mrs K, who cared for him in between visits from carers.
17. In late December 2022, different organisations told the Council the care package did not meet Mr P’s needs. That also had an impact on Mrs K.
18. In mid-February 2023, a Social Worker (SW1) and Mrs K decided Mr P should move to a long-term care placement to support people with learning disabilities (Placement 1). That would start in late February.
19. Following a seizure, the Trust admitted Mr P in late February 2023. A few days later, Mr P fell and broke his leg on the ward. After surgery, the Trust also noticed Mr P had broken his hip. It then carried out a total hip replacement in late March.
20. On 5 April, an Occupational Therapist for the Trust decided Mr P could return home with equipment and support from the Council’s Home Independence Team. But a week later, Mrs K told the Trust she wanted to move her son to a temporary placement, before he eventually moved to a longer-term placement. So SW1 focused on moving Mr P to an assisted living placement.
21. During May and June, the Council approached five placements. For different reasons they could not safely support him.
22. In late May, Mrs K changed her mind and wanted Mr P to return home. The Council reallocated Mr P to another Social Woker (SW2) then.
23. On 7 June, SW2 carried out an assessment of Mr P’s care and support needs.
24. Two weeks later, SW2 completed an assessment of Mr P’s ability to make decisions about his care needs and support on discharge. Mrs K gave her views during that assessment. SW2 decided Mr P lacked capacity to make decisions about his care needs and support on discharge. SW2 also decided it was in Mr P’s best interests to move to a placement, rather than return home with support.
25. At the same time, the Council asked Placement 1 if Mr P could move there.
26. On 21 June, Placement 1 wanted to understand Mr P’s mobility better. Therefore, SW2 told the Trust Mr P needed 24-hour support, and asked if Mr P could safely use stairs. The same day, SW2 met Mrs K. Mrs K wanted to support Mr P at home until the Council could arrange long-term support. She would accept carers to visit him but would not accept live-in carers. SW2 mentioned Mr P’s risk of falls at home between care calls. But felt Mrs K was not realistic about alternatives if Placement 1 refused to accept Mr P.
27. A week later, SW2 shared the Trust’s physiotherapy report with Placement 1. But SW2 asked the Trust if they could complete a separate stairs assessment. Placement 1 also asked the Trust if a physiotherapist could visit Placement 1 and review its suitability for Mr P.
28. In early July, the Trust, SW2 and Placement 1 discussed Mr P. The Trust said Mr P could safely use stairs with support. Placement 1 asked if Mr P or the Trust could visit them to show that. The Trust said no. Therefore, Placement 1 refused to accept Mr P.
29. In mid-July, SW2 told Mrs K and her daughter that Placement 1 had refused to accept Mr P, so the Council had approached Placement 2. Mr P’s sister asked about its residents. SW2 said Placement 2 was for people of all ages with learning disabilities.
30. On 14 July, the Council reallocated Mr P to SW3. A few days later, SW3 amended his care and support plan. Placement 2 visited Mr P and agreed to meet his needs. SW3 confirmed the discharge plan to Mrs K, and the Trust moved Mr P to Placement 2 the same day.

Analysis

The decision to move Mr P to a placement

31. Before the Trust admitted Mr P, he was close to moving to Placement 1. All parties (including the Council and Mrs K) agreed it would support his needs.
32. After the Trust admitted Mr P, he suffered injuries on the ward, so his needs changed. So SWs 1 and 2 had to review Mr P’s care needs following the earlier assessment in February 2023.
33. Between February and May, Mrs K preferred that Mr P move to a long-term placement. However, she changed her mind in late May and wanted Mr P to return home again before going to a long-term placement.
34. I have reviewed the Council’s assessment of Mr P’s care and support needs.
35. I am persuaded SWs 1 and 2 understood Mr P’s needs had changed since the February 2023 assessment. They both regularly refer to Mr P needing greater support with his mobility, and he was a higher risk of falls.
36. The CSSG is clear that councils should review care and support plans when someone’s needs have significantly changed.
37. Mr P’s July 2023 care and support plan does not reflect the changes to his needs. I have not seen any evidence SWs 1 or 2 recorded a separate assessment of Mr P’s needs. Instead, those changes are noted in his daily care record.
38. SWs 1 and 2 should have updated Mr P’s care plan to reflect the change to his mobility needs. Or they should have completed a new assessment.
39. I consider SWs 1 and 2 acted with fault. But I am not persuaded that caused Mr P any injustice. I will explain why. After visiting Mr P, and speaking to the Council and Trust, Placement 2 decided it could safely support his needs. I consider, on the balance of probabilities, despite the Councils fault, Placement 2 was aware of Mr P’s mobility needs, and could support them.
40. While I do not believe the Council’s fault caused Mr P an injustice, it should take further action to remedy any potential injustice to others.
41. I will move on to how the Council considered Mr P’s ability to decide where to move on discharge.
42. The Council said Mr P’s learning disability may impact his ability to make decisions about the discharge.
43. I have reviewed the Council’s assessment of Mr P’s mental capacity and its best interest decision.
44. I consider the Council assessed Mr P’s ability to make decisions about discharge in line with the Code. SW2 robustly considered Mr P’s ability to understand, retain and weigh the information relevant to that decision. Mr P wanted to return home. But he could not remember where home was, or understand why it might not be safe for him to return there. During the assessment, SW2 clearly noted how Mr P’s learning disability impacted his ability to make decisions. I do not consider SW2 acted with fault.
45. Overall, I am persuaded the Council was open to the family’s suggestion of Mr P returning home. But it acted in line with the Code when it decided it was in his best interests to move to a temporary placement instead.

The delayed discharge

46. The Trust told me that Mr P was ready for discharge on 5 April 2023. The Trust did not discharge him until 15 July. That was over three months later. I have reviewed the reasons for that delay, and if the Council and/or Trust was responsible for any delays.
47. The Council said that delay was caused by Mr P’s complex needs and because his family did not want to move him to a temporary placement. Between May and July, it tried to source a provider, but the family refused some placements.
48. I have reviewed the Council’s care record.
49. There was evidence in late May that Mrs K refused one provider due to its non‑verbal residents. She said that would distress Mr P who needed to interact verbally with other residents. The Council tried to ally her concerns, but she refused. So, I am persuaded, on one occasion, the family did refuse support, but it was not the sole reason for the delays.
50. All parties agreed Mr P had complex needs, which made arranging support more difficult. That was because less placements were able to support him. I am persuaded the Council made a significant effort to find an appropriate placement for Mr P, but the lack of options delayed that discharge. It approached many placements and took action to resolve the issue on an almost daily basis. I do not doubt that delay would have been frustrating for Mr P and his family. But I have not found the Council at fault for the delay between early April and mid-June.
51. Between mid-June and mid-July, Placement 1 reconsidered taking Mr P. There was uncertainty between the Council and Trust if Placement 1 could meet Mr P’s mobility needs. Specifically, if he could safely use stairs or not.
52. During my investigation, the Trust told me before it admitted Mr P, he lived in a bungalow. So it did not complete a stairs assessment until it was clear he was moving somewhere else. I do not consider the Trust delayed completing a stairs assessment, or that it contributed to a delay then. The Trust was later clear that Mr P could use stairs, and Placement 1 refused to accept that professional opinion. I consider it was unrealistic of Placement 1 to expect the Trust to visit or to transport Mr P (who had mobility problems) to assess his suitability. It was unfortunate Placement 1 refused to take Mr P, but I am not persuaded that was due to any fault by the Council or Trust. Therefore, Placement 1 was most likely the cause of the delay then. I cannot make any findings against Placement 1 as they are not subject to my investigation.
53. Once Placement 2 agreed to take Mr P, it quickly arranged to admit him.
54. Overall, I accept it took three months to discharge Mr P from hospital. However, I am not persuaded those delays were due to any fault by the Council and Trust. Both organisations have provided evidence to show they worked hard to find a suitable placement for him.

Back to top

Agreed actions

55. Within eight weeks of this decision, the Council should ensure relevant staff are aware of their responsibility to record any changes in someone’s needs in care and support plans (where necessary) following a review.
56. The organisation should provide us with evidence it has complied with the above actions.

Back to top

Final decision

57. I consider the Council and Trust were not at fault for the delay discharging Mr P from hospital. Also, the Council carried out a mental capacity assessment and best interest decision in line with the Code. However, it did not appropriately update Mr P’s care and support plan following its assessment. While that did not cause Mr P an injustice, the Council has agreed take action to reduce any potential impact on others.

Back to top

Investigator's decision on behalf of the Ombudsman