Summary: We found no fault with how a Council and NHS Trust completed a best interest decision about a discharge from hospital. We also found no fault with the time it took the Council to complete a care needs assessment. We did find there was service failure that led to a delay in arranging a care package. This prevented Mr Y from returning to his own home sooner. The Council has agreed actions we recommended to remedy the distress and the financial loss caused by the faults.

The complaint

1. Ms X complains on behalf of her father, Mr Y, about Brighton & Hove City Council (the Council) and University Hospitals Sussex NHS Foundation Trust (the Trust). She complains about Mr Y’s discharge from hospital in February 2023 and his subsequent care arrangements. In particular Ms X complains the Council and the Trust:
• did not properly consider a return home with a suitable care package for Mr Y;
• forced Mr Y into a care home placement (Home A) which was out of his local area;
• did not consider a care home she suggested that was closer to her; and
• misled her about the time Mr Y would in a care home for.
2. She also complains the Council:
• provided her with wrong information about the cost of the placement; and
• delayed assessing Mr Y’s needs at the care home and sourcing a suitable care package for him to return home.
3. Ms X says her father spent five months in a placement he did not need or want, confused and depressed. She considers this contributed to the progression of his dementia. This also had a financial impact as the Council invoiced Mr Y for over £25,000 for his care.
4. Ms X wants an apology for the failings, a refund of costs beyond the six weeks they expected Mr Y to be in Home A for and for improvements to communication.

Back to top

The Ombudsmen’s role and powers

5. 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).
6. 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).
7. 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.
8. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
9. 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. 
10. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we 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)

Back to top

How I considered this complaint

11. I have considered written information provided by Ms X, the Council and the Trust. The complainant and organisations had the opportunity to comment on a draft decision statement. I considered these comments before reaching my final decision.

Back to top

What I found

Relevant legislation and guidance

Mental Capacity Act

12. 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.
13. 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.

Best Interest Decisions

14. A key principle of the MCA is that any decisions made for a person who lacks capacity must be 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 a less restrictive option is available that can achieve the same outcome.

Charging

15. The Care Act 2014 (section 14 and 17) provides a legal framework for charging for care and support. It enables a council to decide whether to charge a person when it is arranging to meet their care and support needs, or a carer’s support needs. The charging rules for residential care are set out in the Care and Support (Charging and Assessment of Resources) Regulations 2014 and councils should have regard to the Care and Support Statutory Guidance.
16. The financial limit, known as the ‘upper capital limit’, exists for the purposes of the financial assessment. This sets out at what point a person can get council support to meet their eligible needs. People who have over the upper capital limit must pay the full cost of their residential care home fees.

Care Assessment

17. Under sections 9 and 10 of the Care Act 2014 councils must carry out an assessment of any adult who appears to need 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 and 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 to be involved.
18. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Councils should let the individual know of the proposed timescale for when their assessment will be conducted and keep the person informed throughout the assessment process.

Market shaping

19. Section 5 of the Care Act 2014 and chapter 4 of the Care and support statutory guidance sets out how councils must ensure the availability of care services in their area. This includes the need to ensure authorities are aware of current and likely future demand for such services, to consider how providers might meet that demand, supporting sustainability and securing supply in the market.

Brief background

20. Mr Y was in hospital under the care of the urology team. An infection affected his mental ability and hospital records note he was at high-risk of falling. A mental capacity assessment found Mr Y lacked the ability to make decisions about arrangements following his discharge from hospital.
21. The social care team arranged a Best Interest meeting to consider how and where Mr Y’s needs could be met when he left hospital. The Best Interest meeting decided Mr Y could not manage in his own home. It recommended a social worker should assess Mr Y’s needs after he was more settled. The Council identified Home A that could meet his needs while the social care team completed a needs assessment.
22. The Council allocated a social worker around a month after he moved to Home A. The social worker completed a care needs assessment and agreed Mr Y could return home with a suitable package of care. It was over four months later before the Council arranged a care package and Mr Y was able to return to his own home.
23. The Council later invoiced Mr Y for the time he spent in Home A.

Analysis

Discharge arrangements and Best Interest meeting

24. Ms X complains the Council and the Trust did not properly consider a return home with a care package for Mr Y. She says they forced Mr Y into a care home placement and did not consider a care home she suggested that was closer to her.
25. Ms X wanted Mr Y to return home with a suitable package of care. The records show Mr Y was high-risk for falls and Ms X had also raised concerns about his ability to manage on his own at home. The hospital recorded Mr Y “can get quite angry” and “refuse personal care”. Mr Y did not understand the risks to himself, particularly at night-time, when records show he would try to get out of bed. This put himself at risk of falling because of his restricted mobility and confusion.
26. During discussion with Ms X, the Council established Mr Y had savings above the threshold and would need to fund his own care. The Council understood Ms X wanted it to identify a suitable placement on her father’s behalf. It found an available bed that could meet his needs at Home A. It was noted this was £950 per month.
27. The records show the social worker discussed the placement with Ms X. From this the Council at first thought Ms X agreed Mr Y should move into a care home until he was well enough to return home. Ms X disputes this and says she did not want to be forced into making a decision about what was best for her father. She also noted she did not have the legal power to make the decision (she held power of attorney for finances but not health).
28. If there was any misunderstanding between the social worker and Ms X about the care placement, the Council clarified this with Ms X the following day. The social care records are clear that Ms X did not agree with her father moving into Home A and stated she wanted him to return to his own home with a suitable package of care.
29. The Council completed a formal MCA assessment and found that Mr Y lacked mental capacity to understand decisions about his hospital discharge arrangements. No one held power of attorney for health to make decisions for Mr Y. The Council and the Trust therefore arranged a Best Interests meeting. This was the appropriate route to make a decision about Mr Y’s hospital discharge arrangements and was in line with the MCA and Care Act.
30. The Best Interests meeting included the social worker, dementia specialist nurse, occupational therapist, discharge coordinator, nurse in charge and Ms X. The record of the meeting noted that before going into hospital, Mr Y had been neglecting himself and refusing support. It recorded that Ms X felt a short-term placement so Mr Y could be further assessed would be appropriate.
31. The Best Interests meeting considered the risks and benefits of Mr Y returning home with support, as the least restrictive option. It also considered a short‑term care placement at a memory and cognitive specialist home. The Best Interests meeting concluded Mr Y returning to his own home would leave him without adequate care and support for long periods, which it felt would significantly compromise his health and well-being. The Best Interests meeting decision was that Mr Y should move to a “short-term placement for further assessment to ascertain if he can reach the level of ability that he had prior to admission”.
32. I can see the Council and the Trust considered less restrictive options and provided rationale for these not being suitable for Mr Y. This was in line with the MCA. The Best Interest meeting also considered Mr Y’s and his family’s views before reaching a decision. I have therefore not found fault in the Best Interests decision-making process. The records also note Ms X agreed with the plan to discharge Mr Y to a short-term care placement for further assessment, although I recognise she disputes this.
33. In relation to the choice of care home, the Council explained that because Mr Y was paying for all his care, he (or his family) could choose to find a care home, or they could ask the Council if it could identify a suitable placement. The Council said Ms X asked it to find somewhere. It therefore identified Home A as suitable and that had space to accept Mr Y. Ms X says she found another care home, but she was told the Council did not work with it.
34. The Council said it has no record of Ms X discussing the alternative care home with it. However, it said because Mr Y would be paying for his care, if another care home agreed it could meet Mr Y’s needs, it would have been the family’s choice and would not have prevented Mr Y’s discharge from hospital.
35. The social care records show there were discussions about Mr Y’s discharge from hospital, but there is no mention of any discussion about the alternative care home Ms X identified. This is not to say no discussion took place, but this was not recorded. The Best Interests meeting notes suggest Ms X agreed with her father’s move to Home A given he could not return to his own home.
36. It would have been the other care home’s decision about whether it could accept Mr Y. The Council would not have had any input into this. As Mr Y was to be funding his placement, I consider it unlikely the Council would dismiss any alternative care provision that could meet Mr Y’s needs. Based on the evidence I have seen, I consider it more likely than not the Council acted without fault in finding a placement for Mr Y.

The Home

37. Ms X complains the Council and the Trust misled her about the time Mr Y would be expected to spend at Home A and about the cost of the placement. She says she was told he would be at Home A for around six weeks. Ms X also complains the Council delayed assessing Mr Y’s needs at Home A and sourcing a suitable care package to allow him to return home.
38. The social care records and Best Interest meeting notes both refer to a short-term placement to allow further assessment. While the records do not specifically state how long Mr Y would be at Home A, they do refer to Mr Y needing a further assessment and reviewing in 4-6 weeks. I have seen no other information about this in the records. The assessment was to consider whether Mr Y had recovered enough to be able return home. In the absence of any additional information from the Council, I understand why Ms X may have thought the placement would be for a similar timeframe.
39. The social care records note that when the placement at Home A was first identified (while Mr Y was still in hospital) the cost would be £950 per week. The records show the social worker discussed the placement with Ms X and also that because Mr Y had savings over the threshold, he would need to pay for this himself. This does indicate the possible costs were discussed with Ms X. However, because Mr Y would be funding his own care, the contract would be between Home A and Mr Y. The Council had no involvement in setting this fee.
40. I note Ms X says she later spoke to the Council and it led her to believe the cost of Home A would be around £400 per month. However, this discussion took place a few months after Mr Y had moved. The Council explained this conversation was with the community care team and it was likely they would have been discussing cost of care when Mr Y returned home. It appears there may have been some miscommunication or misunderstanding about this conversation. However, I note this was quickly clarified and the following day a manager of the financial assessment team sent an email to Ms X to confirm the correct fees (at Home A).
41. I consider the Council’s communication about the placement, including the expected duration of the stay, should have been better. However, the Council completed a care needs assessment for Mr Y after he had settled in at Home A within six weeks. This met the timeframe it had agreed with Ms X. I therefore do not find fault with the time taken for the Council to assess Mr Y’s needs.
42. However, after the Council completed the assessment, Mr Y was in a position to move home with a suitable package of care. This can sometimes take time to source available carers, particularly if a high level of care is needed. Although there is no specific time frame set out in the Care Act, we would normally expect this to be sorted within a month. In Mr Y’s case, this did not happen for over four months after his assessment was completed. This was a significant delay. The Council told us this was because of a lack of available carers that could meet Mr Y’s needs. It said it did not consider the delay was due to any fault by the Council.
43. Under the Care Act and statutory guidance, local authorities have a duty to ensure there is choice and a good quality of service available for the local population. The Council could not secure suitable care provision for Mr Y at home for over four months after he had been assessed because of a lack of carers. This amount of time to source a care package does not suggest it has fulfilled its market shaping duties under the Care Act. I consider this is fault (service failure).
44. Fortunately the lack of carers to provide care and support in Mr Y’s home did not leave him without care. It did mean he could not leave Home A until a care package was in place. This had a significant financial impact on Mr Y because the cost of Home A placement was considerably more than the cost of carers visiting him in his own home. Ms X also says Mr Y was left confused and distressed because he could not return home for such a long time.

Back to top

Agreed actions

45. Within one month of the date of our final decision statement, the Council has agreed to:
1. Acknowledge the faults identified with not providing Mr Y with a care package at home sooner, in accordance with his assessed needs and apologise to Mr Y and Ms X for the distress this caused.
2. Pay Mr Y the difference between the cost of his care at Home A and what his care in his own home would have been, from one month of the date the assessment was agreed until he returned home. (As in this case the Council paid Home A and invoiced Mr Y, this should be done by way of a deduction to the amount owed).
3. Pay Mr Y £300 in recognition of the distress caused by his extended stay at Home A.
46. Within three months of the date of my final decision statement the Council has agreed to:
1. Review its market shaping and commissioning procedures for community adult social care providers to minimise delays in sourcing care providers. It will ensure it has processes in place to meet its duties as set out in the Care Act 2014 and associated statutory guidance.

47. The Council will provide us with evidence it has complied with the above actions.

Back to top

Final decision

48. I have not found fault by the Trust or the Council in the Best Interests process and decisions about Mr Y’s hospital discharge. I did not find fault by the Council in the time it took to complete a care needs assessment for Mr Y, but I have found fault (service failure) with its delay in putting a suitable home care package in place. I made recommendations to recognise and remedy the distress and financial impact caused by the faults. The Council has agreed to these recommended actions. I have therefore completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman