Summary: We found that North Middlesex Hospital NHS Trust failed to consistently provide adequate overnight support to a patient with a learning disability. We also found that the London Borough of Barnet failed to review the patient’s needs in hospital when other professionals noted they had changed. And we found there were avoidable delays in the discharge process, caused by both organisations. These faults caused avoidable distress and uncertainty. We asked the organisations to apologise and provide small financial payments to address this injustice.

The complaint

1. Mr X has a learning disability. In the community he receives one-to-one support from care workers for 12 hours each day. The London Borough of Barnet (the Council) fund this support. In late 2022 Mr X was admitted to North Middlesex Hospital for medical treatment. North Middlesex Hospital NHS Trust (the Trust) is responsible for care and treatment provided by the hospital.
2. Mr X’s brother, Mr Y, complains that when Mr X was an inpatient:
1. the Trust failed to arrange for adequate one‑to‑one care for Mr X overnight,
2. the Council refused to extend Mr X’s care package on a temporary basis,
3. the Council wrongly advised him that Mr X’s regular carers would be breaking the law if they stayed with Mr X in hospital beyond their agreed hours, and,
4. when he reported safeguarding issues to the Council’s out-of-hours duty team, the team was unable and unwilling to address any of the issues raised.
3. Mr Y said these failings meant Mr X was placed at risk of harm. Mr Y said Mr X was in a highly distressed condition due to his illness. Mr Y said the lack of familiar staff caused a heightening of Mr X’s anxiety. In addition, Mr Y said the situation caused him to be extremely concerned and to feel completely unsupported.
4. Further, Mr Y complains:
1. the Trust and the Council failed to organise and arrange Mr X’s timely discharge from hospital. Mr Y said this happened because of a lack of communication between the Council and the Trust.
5. Mr Y said this failure meant Mr X’s anxiety and distress at being in an unfamiliar environment was avoidably prolonged. Mr Y also said he has been left very nervous that the same issues will occur again if Mr X is hospitalised again.
6. Mr Y said neither the Council’s nor the Trust’s responses to his complaint adequately addressed his concerns. Mr Y said they did not provide reassurance that the organisations intended to reassess the relevant policies or standards of service quality.
1. Mr Y also complained that the Council’s stage two response did not respond to his request for copies of its case files relating to these events.
7. In bringing the complaint to the Ombudsmen Mr Y said he would like explanations for key decisions. He would also like steps to be taken to prevent recurrences.

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The Ombudsmen’s role and powers

8. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
9. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we 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).
10. 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.
11. We cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant organisation has to make. Therefore, my investigation has focused on the way that the body made its decision.
12. 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. 
13. 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)

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What I have and have not investigated

14. I have investigated issues (a) to (e) listed above. I have not investigated issue (f) as the Information Commissioner’s Office (the ICO) would be better able to do so.

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How I considered this complaint

15. I considered Mr Y’s written complaint and spoke to him on the phone. I also considered information from the Trust, the Council and Mr X’s regular care provider. I considered relevant legislation and guidance.
16. I shared a confidential version of this draft decision with Mr X, the Trust and the Council and invited their comments on it. I considered all the comments I received in response.

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What I found

Relevant legislation and guidance

The Equality Act 2010

17. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
18. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine protected characteristics listed in the Equality Act 2010. They must also have regard to the general duties aimed at eliminating discrimination under the Public Sector Equality Duty.
19. The duty to make reasonable adjustments is set out in the Equality Act 2010. It applies to any organisation which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
20. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.
21. We cannot decide if an organisation has breached the Equality Act 2010 as this can only be done by the courts. But we can make decisions about whether an organisation has properly taken account of an individual’s rights in its treatment of them.
22. Organisations will often be able to show they have properly taken account of the Equality Act 2010 if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

Guidance from Public Health England

23. In 2017 Public Health England issued guidance titled “How social care staff can support people with learning disabilities when they are admitted to hospital” (the Support for Social Care Staff Guidance). This noted that:

“Going into hospital can be frightening and confusing. It can be even more stressful for people with learning disabilities who may struggle with an unfamiliar environment and not understand what is happening.”

24. The Support for Social Care Staff Guidance encourages people to arrange a meeting with the hospital’s learning disability nurse. If possible, it suggests doing so before the start of the hospital admission. And, if this is not possible, to arrange on as soon as possible after the start of the admission.
25. Before this, in 2015, Public Health England had issued guidance titled “Working together 2: Easy steps to improve support for people with learning disabilities in hospital” (the Working Together Guidance). This highlighted hospitals’ duties under the Equality Act 2010 to promote equality. It also noted that:

“It is the hospital’s responsibility to fund any extra support required in hospital over and above the individually funded support ordinarily available to the person in their own home. For example, if a person has two hours of individual support funded each day to help them at home, this can usually be transferred to provide support in the hospital (by agreement). However, if the person only has paid support this is shared with other people, this cannot usually be transferred and additional support will have to be funded by the hospital if that is required to meet identified needs and promote an equal outcome…”

26. The Working Together Guidance also said that, for patients with learning disabilities, hospitals should “Undertake a reassessment of risk, dependency and support needs whenever it is indicated that the patient may require more or less additional support.”
27. The Working Together Guidance also said that:

“Family members, advocates and/or paid support staff can make a major contribution to the effectiveness of treatment and support by providing medical histories and other important information. They can also help to identify areas of risk and contribute to risk management plans. Sometimes they can also provide additional support that contributes to maintaining a patient’s safety and dignity while in hospital. For example, a family member or paid support worker is probably well placed to provide expert advice on an individual’s communication needs. They may be able to help with reducing anxiety over a particular procedure, such as an injection, or simply come in and help with the person’s evening meal if that is required.”

28. In terms of discharge planning, the Working Together Guidance said hospitals should “Organise a formal discharge planning meeting, wherever possible including family carers and any paid support staff.”

Online guidance on www.NHS.uk

29. On a page updated in January 2022 about learning disabilities, the NHS website noted “The NHS has to make it as easy for disabled people to use health services as it is for people who are not disabled.” It said:

“Some examples of reasonable adjustments are having:

• a carer stay in hospital overnight with you…”

The Care Act 2014

30. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support.
31. Section 18 of the Care Act 2014 says a local authority has a duty to meet a person’s assessed eligible needs for care and support if certain conditions are met. Section 27 of the Care Act 2014 set out a duty of local authorities to keep a person’s care and support under review.
32. Section 22 of the Care Act 2014 says a local authority may not meet needs which are the responsibility of the NHS unless:

• doing so would be merely incidental or ancillary to doing something else to meet needs under those sections, and
• the service or facility in question would be of a nature that the local authority could be expected to provide.

33. The Care and Support Statutory Guidance says that where a person has both health and care and support needs, local authorities and the NHS should work together effectively to deliver a high quality, coordinated assessment.

Overview of events

34. Mr X has a learning disability. He lives in a supported living placement which is staffed 24 hours a day. In addition, he receives one-to-one support from care workers for 12 hours each day. The Council commissions the Provider to provide this support.
35. In late 2022 Mr X went into hospital as an emergency to receive treatment for a stomach condition. Mr X needed a general anaesthetic for the necessary treatment. Mr X needed to fast in preparation for this. Mr X’s procedure was cancelled several times and was completed on his sixth day in hospital.
36. On the same day Mr X went into hospital the Provider emailed the Council. It asked the Council to review Mr X’s needs as soon as possible as his needs had notably changed. The Provider noted additional needs had been happening frequently. They said Mr X “needs a high level of attention especially throughout the night”.
37. Early in Mr X’s admission staff on the ward and from the Provider noted that Mr X would need support overnight. Mr Y said this was because of the symptoms of Mr X’s medical condition and because Mr X was unsettled. In addition to being an unfamiliar environment, Mr X was unable to smoke as he pleased and could not eat or drink coffee in the days before his procedure. These factors increased Mr X’s anxiety and challenging behaviours. Mr Y said the ward manager told him that, because of staffing issues, they would not always be able to support Mr X overnight. Mr Y said staff from the Provider stayed overnight with Mr X for the first four nights of his admission.
38. The Provider asked the Council to temporarily increase Mr X’s support plan so its staff could continue supporting Mr X overnight. Ward staff also supported this. The Council did not agree to the request. It said the Provider could support Mr X during the day but not at night. The Council said it would be illegal for it to arrange this overnight care. It said it was the Trust’s responsibility to arrange the necessary care. Staff from the Provider stopped staying with Mr X overnight after the fourth night.
39. Two days after his procedure, the medical team decided that Mr X was medically stable enough to leave hospital. The hospital understood that Mr X’s home was undergoing building work and that, because of this, Mr X could not go back there immediately. The hospital referred Mr X to the Council and asked it to confirm Mr X’s discharge arrangements. The Council said there needed to be a discharge planning meeting and pressed the Trust to arrange one.
40. Mr X left hospital eight days after doctors said he was medically stable, and 17 days after he went into hospital. He returned to his usual placement.

Local complaints processes

The Council

41. Mr Y complained to the Council in August 2023. In its responses the Council said:

• When someone is in hospital their care is the sole responsibility of the hospital. The Council said, in caring for someone, the hospital should make reasonable adjustments where necessary.
• It could provide support for Mr X during the day, for companionship and social interaction. However, it said it could not provide physical or clinical care.
• It could not have agreed to fund care support at night while Mr X was in hospital. It said that this would have been outside of its statutory duties under the Care Act 2014. The Council said it could not lawfully meet needs by providing services that are the responsibility of the NHS.
• There is no process for the Council to arrange social care for someone in hospital and then claim the costs back.

42. The Council also said:

• The hospital team takes the lead in arranging a person’s discharge once they are satisfied the person is medically stable enough to leave.
• It was not involved in any discussions about Mr X’s discharge from hospital.
• It would have been beneficial to have had a discharge planning meeting at the point when the hospital told the Council that Mr X needed a step-down placement. The Council said this would have allowed it to clarify the situation. The Council said it was “disappointed that the Hospital did not feel it necessary to have a discharge planning meeting with ourselves and [the Provider] as this would have made enabled arrangements to have been agreed much sooner.” The Council reiterated that “It was not helpful that North Middlesex Hospital did not feel it necessary to have a discharge planning meeting despite several communications from the [learning disability] nursing team”.

The Trust

43. The Ombudsmen forwarded Mr Y’s complaint to the Trust in early 2024. The Trust met with Mr Y and sent a written response in late September 2024. The Trust said Mr X’s discharge plans were discussed at a multi-disciplinary team meeting. However, the Trust offered an apology for Mr X’s and Mr Y’s experience at their hospital. It did not specify what it was apologising for.
44. The Trust said that, because of the complaint, they would take action to ensure “a more proactive approach to managing discharge plans and facilitating smoother discharges for medically fit patients”. The Trust said the surgical matron had completed this action. It did not give any specific information about what actions the matron had taken.
45. In response to my enquiries the Trust that its staff had not consistently escalated the need for one-to-one support for Mr X in the periods when his usual care staff were not present. The Trust said it accepted this was an important learning point. It said it was reviewing how it managed meeting enhanced care needs. The Trust said it was intending to introduce a live electronic register of all patients receiving enhanced care. It said this would allow it to audit compliance.
46. The Trust also said that it had improved staff awareness of these issues through:

• bespoke training delivered by the learning disability leads to ward staff, and
• the introduction of Oliver McGowan training in April 2023.

47. The Trust said that three quarters of eligible staff had completed this training. It said the training was a mandated requirement.
48. The Trust also acknowledged that it could have done more to proactively manage Mr X’s discharge from hospital. The Trust said that, since its response to Mr Y’s complaint, it had introduced changes to improve discharge planning:

• Early morning huddles. It said these highlight potential and confirmed discharges and begin escalating matters if they can see a potential delay.
• Daily multidisciplinary team meetings. The Trust said these help support the timely and safe discharge of patients.
• A new electronic Patient Flow system. The Trust said this manages the timely transition of patients through different stages of care.
• Weekly “long length of stay” meetings. It said these discuss patients who have complex discharge arrangements and prompt and track planning for them.

49. The Trust also said it had begun a large scale program of work to look at the whole patient pathway from pre-admission to discharge, to help optimise it.

Analysis

Complaint (a) – that the Trust failed to arrange for adequate one to one care for Mr X overnight

50. The Trust has acknowledged that it did not always provide the level of one‑to‑one care for Mr X that it had identified he needed. This is fault.
51. Mr Y said on one occasion Provider staff told him they did not think anyone had supported Mr X overnight based on the condition its staff found him in when they arrived in the morning.
52. Further, on balance, the lack of support during these times meant Mr X was more agitated and anxious than he would have been if someone had been with him. Later in Mr X’s admission a member of Trust staff noted that, when the Provider had been providing 24-hour support, it was “extremely beneficial in reducing his anxieties”. In addition, Mr Y experienced avoidable anxiety and stress in worrying about his vulnerable brother. This is an injustice to them both. The Trust has identified appropriate actions to help prevent recurrences, but has not addressed the individual injustice.

Complaint (b) – that the Council refused to extend Mr X’s care package on a temporary basis; and,

Complaint (c) – that the Council wrongly advised him that Mr X’s regular carers would be breaking the law if they stayed with Mr X in hospital beyond their agreed hours

53. Hospital staff and Provider staff both considered Mr X needed 24-hour support in hospital and told the Council so. This should have prompted the Council to review Mr X’s needs. An appropriate review would have allowed the Council to establish the extent and nature of Mr X’s needs. This would have included sufficient information and evidence to decide whether Mr X’s needs were “health” needs or not. In other words, whether they were needs that could only be met by doctors or nurses or if they could be adequately met by social care staff. It is fault that the Council did not complete a suitable review of Mr X’s needs when other professionals raised concerns that they had changed.
54. Because the Council did not complete a detailed review, it is difficult to understand how staff decided that continuing to support Mr X in the day was acceptable, but supporting him at night would have constituted a “health” duty. On the face of it, there does not appear to be any significant difference between the type or intensity of interventions required at either time.
55. Neither the Care Act 2014 nor the associated Care and Support Statutory Guidance prevents a council from supporting a person in a hospital environment. As a result of the fault by the Council we are left not knowing what the outcome of an adequate care needs review would have been. Given the apparent similarity between Mr X’s day-time and night-time needs, I cannot discount the possibility a proper review would have found Mr X needed support at night of a type the Council could have provided. This lasting uncertainty is, in itself, an injustice to Mr Y.

Complaint (d) – that when Mr Y reported safeguarding issues to the Council’s out-of-hours duty team, the team was unable and unwilling to address any of the issues raised

56. On Mr X’s fourteenth day in hospital Mr Y contacted a social care out of hours service. He raised concerns that about the lack of support for Mr X overnight. Mr Y said it was not safe for Mr X to be left alone at night and ward staff had told him that would be the situation that night.
57. The out of hours service forwarded this to the Council’s emergency duty team. In the early hours, the duty team advised that the social care team had already provided clear directions that it did not have any duty to provide overnight support for Mr X in hospital.
58. While I have identified fault in the Council’s overall approach, at the time of the events the Council had established a clear view about its support of Mr X in hospital. In this context, I have not found fault that the out-of-hours service followed the established approach at that time.

Complaint (e) – that the Trust and the Council failed to organise and arrange Mr X’s timely discharge from hospital

59. On Mr X’s eight day in hospital doctors decided that Mr X was medically stable enough to leave hospital. On that day:

• The Provider emailed the Council and noted that Mr X was very frail and needed nursing care. They noted an earlier email from a social worker which had said that Mr X would not be returning immediately to the Placement. The Provider asked what the plan was for the next steps.
• The Council replied and said there would need to be a discharge meeting in the first instance. It said this would help decide what support Mr X would need in the community. The Council said it would chase this up with the hospital. The Council noted the Provider wanted a reassessment of Mr X’s needs. It reiterated that a discharge meeting needed to happen first. The Council told the Provider that “Under no circumstances should you be agreeing to have [Mr X] home without a discharge meeting.”
• The hospital learning disability liaison nurse emailed the Council and noted that, medically, Mr X was ready to leave hospital. They said “I have been told that he is not due to be returning to his placement due to planned renovations? What is the plan for [Mr X] please?” The Council replied and said that, before they decided anything, they needed to establish Mr X’s current needs and how best to manage them. The Council asked the hospital to organise a discharge meeting as soon as possible to take this forward.
• The Provider also emailed the hospital’s learning disability liaison nurse and copied in the Council. It said Mr X’s PA’s “place is ready. [The social worker] said upon discharge [Mr X] will have to go to a stepdown service. I am happy to take [Mr X] when [a Council worker has done] her assessment.”

60. However, staff also raised concerns that Mr X was more tired than normal. Because of this, discharge plans were paused from a medical perspective. On the next day medics reviewed Mr X and decided he was medically stable enough to leave hospital. Also that day:

• The hospital learning disability liaison nurse emailed the Council and said she had not been made aware of any changes to Mr X’s care needs. She said “from my understanding [Mr X] could return to his usual place of residency (if there were not planned renovations).” The nurse also noted that, while Mr X had been an inpatient, the Provider had provided Mr X with 24 hour care which had been “extremely beneficial in reducing his anxieties”.
• The Council replied and repeated its request for a discharge meeting, which would involve hospital staff, Council staff, the Provider and Mr X’s family.

61. Three days later the Council emailed the ward and asked for an update about a discharge meeting for Mr X. Four days after this:

• The Council emailed the ward and noted that they were continuing to wait for a discharge meeting.
• The hospital’s learning disability liaison nurse replied and said the ward did not consider a meeting was necessary and, as such, would not be arranged. The nurse said Mr X needed one-to-one care at night. It said this was mainly because of “his level of distress (contributed by the ward environment), also support to leave the ward to smoke, as he is requesting to do so and without smoking this increases his level of distress”. The nurse also commented on Mr X’s continence needs and said Mr Y had confirmed this was not a new issue and had been observed by the Provider for months. The nurse said the Council needed to decide whether Mr X needed more support at night in the community.

62. On the following day Mr X’s placement confirmed it was happy to take Mr X back. Mr X left hospital and returned to the placement.
63. It should not have taken seven days for Mr X to get home after doctors confirmed he was medically stable enough to do so.
64. The initial factor which led to this delay appears to have been a misunderstanding. Care staff told a nurse that Mr X’s room was being renovated so Mr X could not return to it. Because of this, the Trust asked the Council what the plan was. However, there is an email from the Provider at that time which said Mr X’s place was ready. From the evidence I have seen, it appears that no one took on board what this email said.
65. However, this was not the sole reason for the delay. There was a disagreement between the Trust and the Council about whether Mr X's needs had changed since his admission. The Trust did not consider they had. In contrast, the Council felt there needed to be a reassessment.
66. There was effectively a short stand-off between the Trust and the Council. The Council maintained its view that there needed to a discharge meeting. It wanted this to establish what Mr X’s needs were and whether it needed to change Mr X’s care package. The Trust did not agree a meeting was warranted and asked the Council to confirm its plan.
67. On balance, there was some fault by both the Trust and the Council. It is difficult to understand why the Council specifically wanted a meeting to progress the case. The Council does not appear to have attempted to progress the case in another way. For example, by asking a social worker to visit Mr X on the ward. In addition to visiting Mr X they would also have been able to look at the inpatient records and speak to ward staff. Further, as Trust staff noted, the Provider’s concerns about Mr X’s care package began before his admission. I have not seen evidence of the Council exploring these concerns with the Provider while they waited for the Trust to arrange a meeting. If the Council had attempted this work it would have given it up to date understanding of Mr X’s needs.
68. However, equally, it is hard to understand why the Trust would not arrange a short meeting to involve its staff, the Council, the Provider and Mr X and Mr Y. This would have allowed a multi-disciplinary discussion of Mr X’s admission and care needs.
69. Overall, it appears it was within the powers of both the Trust and the Council to have done more to speed up Mr X’s discharge from hospital. As noted in paragraph 52, there is evidence to show that Mr X found his time in hospital stressful and difficult. This was avoidably prolonged by the failings in the discharge process. The day before Mr X left hospital, Trust staff noted that the delays were “increasing agitation” and that Mr X was “becoming distressed as he wants to leave hospital”. This is a further injustice to Mr X. Also, Mr Y witnessed this and has explained that the lack of progress and lack of proactive contact from either service left him frustrated. More than this, Mr Y said it contributed to a sense that they had been abandoned by the services they needed to rely on. While the Trust and the Council have taken appropriate steps to take learning from this case and make service improvements, they have not adequately addressed these individual injustices to Mr X and Mr Y.

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Action

70. Within one month of the final decision the Trust should write to Mr Y to acknowledge the fault described in paragraphs 50, 67 and 68 of this decision. It should also apologise for the injustice described in paragraphs 51, 52 and 69. In providing this apology the Trust should take account of the guidance we publish on apologies. This is contained within our guidance on remedies at section 3.2; (see Guidance on remedies - Local Government and Social Care Ombudsman).
71. Within one month of the final decision the Council should write to Mr Y to acknowledge the fault described in paragraphs 53, 67 and 68 of this decision. It should also apologise for the injustice described in paragraphs 55 and 69. In providing this apology the Council should take account of the guidance we publish on apologies, as above.
72. Within two months of the final decision the Trust should pay:

• Mr X £150, and
• Mr Y £150

to act as a symbolic, tangible recognition of the avoidable uncertainty and distress they experienced as a result of the Trust’s faults.

73. Within two months of the final decision the Council should pay:

• Mr X £150, and
• Mr Y £150

to act as a symbolic, tangible recognition of the avoidable uncertainty and distress they experienced as a result of the Council’s faults.

74. Within three months of the final decision the Council should review its handling of this case. It should consider the issues it raises about the support of its service users with learning disabilities during hospital admissions. If it considers it would be helpful, the Council should consider inviting health partners to collaborate with a view to improving practice for the future.

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Decision

75. I have found fault, by both the Trust and the Council, which caused an injustice. I have made recommendations to the organisations to remedy the injustice.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman