Summary: Mr X complains that the Council and the NHS Trust who cared for his brother failed to follow correct procedures when he was being discharged from NHS treatment. We found both organisations were at fault. As a result Mr X’s family were not able to make an informed decision about his ongoing care. We found the Council should establish Mr X’s financial circumstances at the time of discharge and the Council and NHS Trust should both take actions to remedy the complaint.

The complaint

1. Mr X complains on behalf of his brother (referred to as Mr Y in this statement) who suffered from a stroke in July 2021. Mr Y needed a nursing home placement following his stroke. Mr X complains the Council failed to carry out a financial assessment for his brother and failed to explain how the UK care system works despite the family making it clear they were not from the UK.
2. Mr X complains that discharge procedures were not correct following Mr Y’s admission to Charing Cross Hospital (part of Imperial College Healthcare NHS Trust).
3. Mr X says as a consequence of the issues he complains of, the family were forced to pay for care even though his brother should have been entitled to funding for at least 12 weeks.

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The Ombudsmen’s role and powers

4. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, a single team has considered these complaints acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
5. 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.
6. 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.
7. 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

8. I spoke to Mr X and considered the information he provided. I asked the Council and the NHS Trust to provide information and evidence of their actions which I took account of. I considered national guidance and the relevant organisations’ policies and procedures.
9. Mr X and the organisations we investigated had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and Guidance

Care Act 2014

10. The Care Act 2014 sets out that councils must carry out an assessment of need for any adult who appears to have a need for care and support. A council must carry out an assessment regardless of a person’s finances or whether a council thinks they have eligible needs. The assessment must involve the individual concerned and their carer or any other person they might want involved where appropriate.
11. If a council decides an adult meets the eligibility criteria for care and support, it will provide a support plan which outlines what services are needed to meet the needs and a personal budget which calculates the costs of providing those services.

Financial Assessment

12. If an adult meets the council’s eligibility criteria for care and support, section 17 of the Care Act 2014 states the council must carry out an assessment of the person’s financial resources. This assessment is to find out what amount (if any) the person can afford to pay towards their care. (Care and Support (Charging and Assessment of Resources) Regulations 2014/2672).
13. Once a person’s capital is below the £23,250 limit, the council must carry out a financial assessment to decide how much the person should pay towards their care costs (the ‘assessed contribution’) and how much the council will pay. Councils must make sure there is information and advice available in a suitable format to ensure care home residents and their representatives understand any charges. (Care and Support Statutory Guidance (2014))
14. In some circumstances the council may choose to treat a person as if a financial assessment has been carried out (a ‘light touch’ financial assessment). A council must be satisfied, based on evidence provided, that the person has financial resources above the upper capital limit of £23,250.

The Care and Support (Charging and Assessment of Resources) Regulations 2014

15. Schedule 2 of the regulations states that if someone becomes a permanent resident of a care home, the value of their main residence should be disregarded for the purposes of assessing how much they should pay for the home for the first 12 weeks of their residence.

The Care and Support (Deferred Payment) Regulations 2014

16. The regulations set out circumstances in which a council is required to enter into a deferred payment arrangement and those in which it has the discretion to do so.

Top-Up Fees

17. When it has been decided a person’s needs are best met in a care home the council must ensure at least one accommodation option is available within the person’s personal budget, and it should ensure there is more than one of those options. The council must ensure the person has a genuine choice of accommodation.
18. A person can choose alternative options, including a more expensive care placement, if a third party or in certain circumstances the resident is willing and able to pay the extra cost (the ‘top-up fee’). An extra payment must always be optional and never as a result of commissioning failures leading to a lack of choice. The Council must not ask for a top-up fee unless a person has actively chosen a more expensive placement.
19. Annex A of the Care and Support Statutory Guidance also says where a council arranges care for a self-funder, the council may choose to enter into a contract with the care provider or it may broker the contract on behalf of the person. Where the council is arranging and managing the contract with the care provider, it should ensure clear written arrangements are in place about how costs will be met including any top-up.

Hospital Discharge

20. Department of Health guidance: Ready to go? Planning the discharge and the transfer of patients from hospital and intermediate care (March 2010) (the ‘Ready to go guidance’) is the core guidance around hospital discharge. It contains ten key steps for staff to follow during discharge planning, including:

• start planning for discharge or transfer before or on admission;
• identify whether the patient has simple or complex discharge and transfer planning needs and involve the patient, carer, health and social care discharge and planning teams;
• involve patients and carers so that they can make informed decisions and choices that deliver a personalised care pathway and maximise their independence.

Imperial College Healthcare NHS Trust Discharge Policy

21. The hospital discharge policy and procedure sets out the processes that should be followed when discharging patients. Mr Y needed a bed at another placement for continuing care following his stay in hospital. As such the appropriate discharge pathway was the complex needs discharge pathway. Appendix 6 of the policy identifies that for complex discharges, a referral should be made to Social Services for an assessment.
22. The policy document sets out a clear statement that patients are the responsibility of the Trust and the Trust must be certain that a care package has been authorised by the local authority if required. It states staff must not assume that funding approval has been agreed by the local authority and someone who requires a care package should not be discharged until confirmation is received that the care package is in place.
23. The core principles of the policy include the need to provide high quality information advice and support to enable people to effectively participate in the discharge process and make informed decisions. A key discharge worker should also be identified for each patient to discuss discharge arrangements.

What happened

24. Mr Y had a stroke in July 2021 and was admitted to hospital. In September, while he was still in hospital, a social worker was assigned (Officer D).
25. In early September Mr Y was discharged to an NHS rehabilitation centre to receive therapy.
26. The Council says it received a Discharge to Assess (D2A) referral on 22 October 2021. The D2A referral document summarised what had happened to Mr Y and what his needs were. It stated Mr Y was being referred for an intermediate care bed. It stated Mr Y lived in a top floor flat with a curved staircase and his mobility restrictions meant he would be unable to leave in an emergency. The form stated that Mr Y was seeking a residential placement as his home was no longer suitable.
27. On 3 November, Officer D attended a multi-disciplinary meeting about Mr Y. Case notes indicate that the Council was considering whether Mr Y could return home with carers visiting to meet his needs. The same day an Occupational Therapist (OT) assessed Mr Y’s home and decided care at home would not be suitable. In an email to the Council the OT stated Mr Y’s parents needed support in understanding how the discharge would work. They asked the Council to call them to explain Mr Y’s discharge plan. They noted he had some funds but they needed help finding a suitable care home.
28. A mental capacity assessment dated 9 November concluded Mr Y had capacity and was able to make a decision about where he should live and what his short and longer term care and support plans were. The document set out Mr Y’s view that he could not continue to live at home.
29. The Council’s records show that Officer D’s manager (Officer E) spoke to Mr Y’s parents. They wanted to find a care home for him. Mr Y’s father stated that he believed Mr Y had savings over £23,250 but was not sure. The case notes stated deferred payments were discussed and Officer E would check with the finance department if that was possible in this situation.
30. On 10 November at a meeting with Mr Y’s parents it was agreed that a residential care home would be found. The minutes stated, on Mr Y’s approval for a placement his parents contact details would be shared with the brokerage team so they could liaise directly about it. A long-standing friend of Mr Y’s was also supporting him (I refer to her as Ms F). It was noted that she would assist with managing Mr Y’s affairs.
31. On 11 November the Council’s records show it approved an interim placement. and after the initial 12-week property disregard, Mr Y would be self-funding this placement. It seems that the Council considered Mr Y’s basic immediate needs could be met at home with carers visiting and telecare, but Mr Y was not comfortable with this and health professionals had agreed a residential placement was most appropriate.
32. On 12 November the rehabilitation facility told the Council that Mr Y needed to remain there a few more days to complete some further investigations and treatment.
33. The Council told us the brokerage team found a suitable placement (Care Home 1) at a cost the Council would agree to pay. The brokerage team sent a referral there on 12 November and Care Home 1 agreed it could meet Mr Y’s needs.
34. Unfortunately, on 13 November, Mr Y returned to hospital. The Council were told this on 15 November. A social worker emailed the hospital to check this and received confirmation of which ward he was in.
35. On 16 November Care Home 1 contacted the ward at the hospital to arrange to assess Mr Y.
36. On 17 November in an update telephone call, the family told the Council Mr Y was not medically fit for discharge. Mr Y’s parents advised the Council they had found a care home they were interested in (Care Home 2). Officer D agreed to pass Care Home 2’s details on to the brokerage team.
37. On 18 November the Council’s brokerage team contacted Officer D. They acknowledged the family’s interest in Care Home 2. However, they told Officer D that the cost of the home was too high, so they would not pursue it. Officer D stated she would let the family know. There is no case note to show when the Council explained the Council would not agree to fund Care Home 2. I understand this was a contact between Officer D and Ms F on 18 November.
38. Also on 18 November, the hospital told us that their records were updated to indicate the rehabilitation facility already made a referral to the Council to organise discharge to a nursing home and to expect contact with a social worker.
39. The hospital records note that Mr Y’s father visited the hospital and told staff the family had identified Care Home 2 and they would arrange for Care Home 2 to assess Mr Y. The hospital stated Mr Y’s father gave the impression that Mr Y would be self-funding and hospital staff made that assumption.
40. On 23 November the hospital records refer to the need to contact the rehabilitation facility about discharge. There is a further record pointing to confusion surrounding the discharge plan. It stated the hospital ward and rehabilitation facility expected Mr Y to return there, but the family were under the impression that was not possible and they had identified Care Home 2.
41. A case note on the following day recorded contact between the ward and the rehabilitation facility in which the rehab facility stated they had an available bed and they were already in the process of planning discharge and community therapy teams to input. The hospital told us the availability of the rehabilitation facility was discussed with the family but they chose Care Home 2. I note the hospital made a referral for community rehabilitation support for Mr Y in Barnet Council’s area (where Care Home 2 is located) on 26 November. This was not a referral for discharge support.
42. Mr Y was discharged from hospital to Care Home 2 on 29 November 2021. The hospital told us from their perspective it appeared that referrals had already been made by the rehabilitation facility for discharge, so discussions about funding would have taken place between the London Borough of Brent and the family. The assumption was made that Mr Y was privately funding Care Home 2.
43. The hospital provided no evidence that it had made a referral for a social worker assessment as its policy required for complex discharges.
44. On 1 December, Mr X contacted Officer D at the Council, explaining that because his parents had not heard from the Council, Mr Y had moved into Care Home 2. Mr X stated the Council had told his parents they would fund the care home until his flat was sold (via deferred payments). They stated they had paid the initial care home fees, using Mr Y’s savings. However, Mr Y had no more liquid assets to continue payments. Mr X told Officer D that the family understood the Council wouldn’t meet the full cost, and they would be happy to top this up. In this email Mr X acknowledged other care homes had been suggested by the Council but the family either found these had no availability or were not acceptable for various reasons. Mr X acknowledged that Officer D spoke to Ms F, but they were expecting to hear from the Council further and they had not been contacted.
45. Officer D spoke to senior officers then responded. She told Mr X that the brokerage team had advised the cost of Care Home 2 was too high for the Council to pay. She stated she fed this back to Ms F previously.
46. When Mr Y’s family made a complaint to the Council, it stated it had been in communication with Mr Y’s family and his nominated representative, Ms F. Unfortunately, neither the hospital nor the rehabilitation facility informed the Council that Mr X was ready for discharge from hospital. It stated it had made clear to the family that Care Home 2’s fees were significantly higher than the Council’s standard rate for care placements, so it had not been approved. As a result, the Council declined to pick up the payments for Mr Y’s care at Care Home 2. The Council also noted that as Care Home 2 was outside its area, another council was now responsible for any assistance the family may need in future.
47. In response to our enquiries, the NHS Trust that runs the hospital told us if a similar situation occurred today, due to a change in their processes, the discharge team would be notified of the patient on admission and the patient’s discharge plan would be tracked by the team. The discharge team would also have liaised with the London Borough of Brent where there would have been an opportunity to check the financial situation.
48. Mr X told us that when the family were able to access his financial information, they found that he had around £16,000 in savings. He also owned his flat in London. They used all of Mr Y’s savings to pay the first two months of care fees. After that the family had to find the funds to pay the care fees until his property was sold.

What should have happened

The Council

49. The family were entitled to request that Mr Y was placed at a care home of their choice. While the Council may not meet the whole cost, Care Home 2 could have been commissioned, with the family paying a top up. Rejecting Care Home 2 rather than facilitating it with a top up was fault by the Council.
50. When the Council first told the family it would not fund Care Home 2 because of the cost it did not explain the implications of the family placing him there. i.e. It did not explain that Care Home 2 was in another London Borough until after Mr Y moved there.
51. The Council were aware Mr Y had been re-admitted to hospital and should have maintained contact to ensure they were involved at discharge. They had a role to explain the process. This was particularly important as the family were not from the UK. The Council should have conducted a financial assessment to establish Mr Y’s circumstances.
52. Based on what the family and the Council told us, Mr Y’s savings were around £16,000. So, when disregarding Mr Y’s main residence, his savings fell below the £23,250 threshold. As such, Mr Y should not have been required to pay for his care for the first 12 weeks. As Mr Y’s family asked that he be placed in Care Home 2, which was more than the Council would usually pay, the family would have needed to pay a top up payment.
53. In addition, based on the information available, it appears the Council would have been required to consider offering Mr Y a deferred payment arrangement.

The NHS Trust

54. Mr Y required on-going care on his discharge from hospital. As such the NHS Trust should have followed the complex discharge process. This required a referral to social services. The hospital did not follow the correct process, even though there was some confusion about where Mr Y was being discharged to. The hospital staff assumed Mr Y was a self-funder, but this had not been established because the discharge planning started at the rehabilitation facility had not been completed.
55. The assumptions made and the failure to follow the correct procedure compounded the fault we identified by the Council. It meant there had been no financial assessment, and the family did not have all the information necessary to make an informed decision when placing Mr Y at Care Home 2.

Injustice/Hardship

56. If the Council had continued to be involved in Mr Y’s discharge arrangements, it is likely that the Council would have placed Mr Y in Care Home 2, with the family paying a top-up payment. On the basis of the information provided to us (Mr Y having savings/other assets under £23,250 and a property asset) Mr Y was entitled to a 12-week property disregard. After 12 weeks they could also have asked the Council to agree to a deferred payment arrangement to pay his fees until his property was sold. Because of the fault we identified, Mr Y and his family were not able to take advantage of this.
57. We found the fault by the NHS Trust compounded the fault by the Council and led to uncertainty in the discharge process. We found the Council and NHS Trust shared some responsibility for the impact to Mr Y’s family.

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Recommendations

58. Within six weeks of our final decision:
59. Both organisations should send a written apology to Mr Y and his family.
60. The Council should obtain evidence from the family to confirm Mr Y’s financial circumstances at the date of his discharge from hospital in late November 2021. It should determine what retrospective payment should be made to Mr Y to put him back in the position he should have been in, had the process been carried out correctly and it should explain its findings clearly in writing to Mr X. On the basis of the information we have, it seems likely that Mr Y’s circumstances met the criteria for a 12-week property disregard, so the Council should pay an amount equivalent to the care fees the Council would have paid for Mr Y for the first 12 weeks of his residence in a care home. (This would be an amount equivalent to what the Council would pay, rather than the full rate of Care Home 2. This is to reflect the top-up payment that the family would have been required to pay by choosing Care Home 2).
61. To reflect the difficulties and additional stress that the matter placed on Mr Y’s family, the NHS Trust should pay Mr Y’s family £125. The Council should also pay them £125.
62. Both organisations should provide us with evidence they have complied with all of the above actions within six weeks of my final decision on the complaint.

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Final decision

63. There was fault causing injustice. I have now completed my investigation and closed my file.

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Investigator's decision on behalf of the Ombudsman