Summary: We completed our investigation. The Council was at fault for failing to provide X with personal care at home, following their discharge from hospital. X suffered avoidable distress for one month. The Council will apologise to X, make a symbolic payment to them and review its procedures.

The complaint

1. X complained the Council failed to provide adult social care support to them from August to September 2023. X says this happened when they were discharged from hospital and placed in unsuitable out of area interim accommodation. X was fleeing domestic abuse.
2. X said they went without personal care, support preparing meals and support caring for their child, for one month. X reports this had a detrimental impact on the family, at an already difficult time in their lives.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

5. I have investigated the actions of the Council responsible for delivering X’s adult social care intervention when they were discharged from hospital.
6. I have not investigated the actions of other Council departments related to this complaint, for example, housing.
7. Some of what happened here involved health clinicians. I have not investigated actions of staff employed by the relevant NHS trust, or what happened to X while they were in hospital.

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How I considered this complaint

8. I considered the complaint and information provided by the Council.
9. I made written inquiries of the Council and considered its response along with relevant law and guidance.
10. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
11. X and the Council had the opportunity to comment on the draft decision. I considered all comments before making a final decision.

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What I found

Law and guidance

12. Schedule 3 to the Care Act 2014 and the Care and Support (Discharge of Hospital Patients) Regulations 2014 set out arrangements for the discharge of hospital patients with care and support needs.
13. The NHS should try to give the council as much notice as possible of a patient’s impending discharge. This is so the council has as much notice as possible of its duty to start a needs assessment. The Care and Support Statutory Guidance says local agreements should be in place between NHS bodies, councils and other relevant partners to set out each organisation’s responsibilities to achieve timely and safe hospital discharge.
14. Sometimes councils have to decide between themselves which organisation has to meet someone’s eligible care needs under the Care Act 2014. They do this by deciding where the person is ‘ordinarily resident’. There is no definition of ordinary residence in the Care Act, therefore, the term should be given its ordinary and natural meaning.
15. The courts have said this means where someone normally lives “as part of the regular order of [their] life, for the time being, whether of short or long duration” [Shah v London Borough of Barnet (1983)]. Where doubts arise about a person’s ordinary residence, it is usually possible for councils to decide that the person has been in one place long enough, or has firm enough intention towards that place, to have acquired an ordinary residence there. Sections 18 and 20 of the Care Act 2014 says a council must meet the eligible needs of people if they are present in its area but are of no settled residence. In this regard, people who have no settled residence, but are physically present in the council’s area, should be treated in the same way as those who are ordinarily resident.
16. There may be some cases where a council considers it proper for the person’s care and support needs to be met by providing accommodation in another council area. Section 39 to 41 of the Care Act and the regulations set out what should happen in these cases. They specify which council is responsible for the person’s care and support when they are placed in another council’s area. The principle is the person placed ‘out of area’ is considered to continue to be ordinarily resident in the first or ‘placing’ authority area and so does not get an ordinary residence in the ‘host’ or second authority. The council which arranges the accommodation, therefore, keeps responsibility for meeting the person’s needs.
17. The Care and Support (Disputes Between Local Authorities) Regulations 2014, set out the procedures councils must follow when disputes arise regarding a person’s ordinary residence. They must first take all reasonable steps to resolve the dispute between themselves. It is critical the person does not go without the care they need while councils are in dispute.
18. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
19. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
20. Article 8 of the Human Rights Act 1998 protects an individual’s right to respect for private life, family life, home and correspondence.

What happened

21. The following events are relevant to the complaint being investigated. I have not included everything that happened.
22. X has multiple health conditions. X also has a child under 11 with health conditions. X and their child have a variety of support needs.
23. In mid-August 2023 X visited the emergency department of the local hospital due to ill health. While in hospital X told staff it was unsafe to return home due to domestic abuse and being unable to look after themselves independently.
24. Staff in the hospital spoke to the housing department at the Council who arranged out of area interim accommodation for X and their child (I will refer to the local authority where the interim accommodation was as Council Z).
25. Adult social care contacted the hospital social worker and asked them to complete an assessment of X’s needs.
26. A clinician in hospital assessed X and made recommendations about the personal care X would need when they returned home. This was put into a discharge passport. A discharge passport is a document outlining the care that is needed in someone’s home upon their discharge from hospital. It should be completed before the patient leaves the hospital.
27. X was discharged from hospital that evening.
28. X said they tried unsuccessfully to contact the Council that evening because they were concerned about whether support in the home would be put in place.
29. It is unclear whether the discharge passport was shared with the relevant out of hours Council team, by the hospital staff. Day time staff were unable to share it, as when on shift that day, the address for the interim accommodation was yet to be confirmed.
30. The day after, X contacted the Council to tell it they were waiting for someone to support them at home. X reported they had gone without the personal care they had expected.
31. X’s child’s social worker contacted adult social care asking for an update on the care at home for X and the care act assessment being carried out.
32. Adult social care did not contact the hospital social worker to follow this up.
33. X went without care at home for three days following discharge from hospital.
34. On the third day following discharge several council departments discussed X’s care. It was recorded that a social worker allocation was necessary to arrange the care at home because X was discharged outside the Council area. The discharge passport was uploaded to the Council system and care was organised to start the following day.
35. A care provider, organised by the Council, visited X at home. It immediately raised concerns about the suitability of the accommodation and about X and their child’s wellbeing. It said due to the lack of space required to care safely for X, it could not provide care to X.
36. The Council contacted X a few days later, on a Friday. It told X there would be no care provided to them over the forthcoming weekend. It was noted in this call that X could not shower independently.
37. The following Monday X contacted the Council, distressed. Council records show X told the Council that they were in the same clothes as they left hospital in, due to not being able to wash or dress themselves. The hospital social work team continued to chase up the care package for X.
38. A week after being discharged from hospital, the hospital social worker completed a care act assessment for X.
39. Two days later X’s case was heard at the panel responsible for deciding on care for patients who are discharged from hospital. It was decided that until X was moved to different accommodation care in the home could not take place. The accommodation was not deemed safe for staff to visit. The panel making this decision communicated this with the Council.
40. X complained to the Council about the lack of care in the home and the impact this had on them and their child.
41. Throughout August concerns were discussed between Council departments about the lack of care for X. X also continued to complain to the Council.
42. Council Z wrote to the Council sharing concerns about X’s care package not being in place.
43. At the start of September Council Z escalated concerns about the lack of care in place for X.
44. Council Z offered to carry out an assessment of X’s needs and share information with the Council so that care could be organised. In mid-September a social worker from the Council who became involved in response to a safeguarding referral made about X, organised for this to happen.
45. Two days later, once the care was organised and agreed to by the Council, care in the home started. Council Z closed the case. The Council remained responsible for X’s care.
46. During September there was debate between the Council and Council Z about who was responsible for X’s care.
47. In its complaint response to X at the start of October 2023 the Council apologised to X for ‘any misunderstanding or delay’. It said the delay in the second care placement starting was due to issues finding a domiciliary care provider.
48. The Council said X told staff they were happy to continue to rely on friends and family for care. The Council said it had communicated with the manager of the hospital discharge team. It said X’s experience had highlighted the need to have a better process in place for supporting patients being discharged out of area who required care at home and that steps were being taken to improve the level of service.

My findings

49. X should not have been discharged from hospital without the appropriate care package in place and ready to be delivered. Council care records are confusing. In one record the discharge passport was reported to be on the council system, in another it was not.
50. I cannot say the Council were entirely responsible for organising X’s discharge care. As described in paragraph 13 there may be two or more partner agencies working together to organise such care.
51. However, X’s experiences raise questions about the effectiveness of the out of hours procedure currently in place between the hospital discharge team and the Council. The Council referred to service development work having been carried out by the hospital discharge team after reviewing X’s complaint. It is also important to ensure that the Council have a robust understanding of the out of hours procedure and its responsibility to act when things go wrong following an out of hours discharge from hospital.
52. The Council became aware of X being without discharge care the day after they were discharged from hospital. It did not take action to minimize the time X was without care. The Council had an opportunity to intervene at this point which it did not take. This was fault by the Council.
53. The second issue arose about X’s care package when days after being discharged it was noted in Council records that X should have had a social worker allocated to them for the out of area care to be authorised. Hospital staff and numerous Council departments were aware that X was being discharged out of area the day before discharge took place. This should have been identified sooner. It could also have minimized the injustice X suffered at being without care. I cannot however attribute this to actions of the Council, solely. As already noted, X received care from a multi-agency team of professionals, and actions of the NHS staff, for example, involved in X’s care, are not being investigated.
54. It appeared the multi-agency arrangements in place for discharging patients from hospital to an out of area address, were not adhered to at the time of X’s discharge from hospital. This raises questions about staff awareness of such procedures. As described in paragraph 13 it is a responsibility of the Council to ensure that such arrangements are in place, are robust in nature and are understood and utilised by its staff.
55. The care act assessment that took place by the neighbouring local authority identified X had multiple care needs. X was unable to wash and dress themselves independently and needed help to prepare meals. Weekly care visits were arranged for household chores and food shopping. X needed care to ensure their basic needs were met. X was left without this level of care at home for one month.
56. Due to failing to provide care to meet X’s personal needs, Article 8 of the Human Rights Act 1998, was engaged. In failing to provide the care X required at home, the Council failed to have due regard for this right. This was fault by the Council.
57. The Council complaint response summarised what happened to X in a different way to what is recorded in Council records. X disputed ever having told the Council they would rely on friends or family. X also reported being in high levels of distress, not having changed their clothes, being unable to wash and struggling to cope with the needs of their child and their own ill health. The complaint response minimised the impact of the lack of Council care on X. The complaint response offered no remedy to X. It was of poor quality and demonstrated a lack of understanding of the impact of its actions on X’s emotional and physical health and wellbeing.
58. The complaint response also said it had issues finding a second care agency to provide care. It said this was the reason for delay. However, upon a different social worker becoming involved and working cooperatively and decisively with Council Z, care was organised and implemented within 48 hours.
59. Paragraph 17 of this decision explains the importance of someone not going without the care they need if a Council is in dispute about who is responsible for paying for the care. Ordinary residence involves the person making a choice about settling in an area, Councils should consider this. At this time, X did not want to settle in Council Z’s area. That was noted in Council records. X was placed there because of needing to flee domestic abuse.
60. It is not for the Ombudsman to decide where someone is ordinarily resident. The dispute about this is one possible cause for delay. X did not move to a new address during the time referred to in this investigation. Nor did the Council choose to use a different care agency. It is unclear exactly what the delay was in organising care and why it took as long as it did.
61. X suffered avoidable distress due to fault by the Council. X was deprived of personal care for one month. X is a vulnerable individual, with a history of health conditions and was fleeing domestic abuse at the time the Council failed to provide them with personal care. X went without their basic needs being met for one month.

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Agreed action

62. To remedy the injustice to X from the fault by the Council, I recommend that, within four weeks of a final decision, the Council takes the following actions
• Apologise to X in line with our guidance on Making an Effective Apology. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• To recognise the distress experienced, due to fault by the Council, it should make a symbolic payment to X of £700.
63. Within twelve weeks of receiving a final decision the Council should:
• Share learning from this decision with the teams involved in organising X’s care in August and September 2023,
• Review the procedure in place between the relevant NHS team/s and the Council regarding arranging discharge care for patients with social care needs who are leaving hospital.
• Ensure the review considers the out of hours procedure in place between the hospital social work team and the Council to ensure discharge care for patients discharged outside normal office hours is organised properly,
• Ensure the review considers the procedure to be followed when discharging a patient to an address outside of the Council’s area.
64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation. The Council was at fault. The action the Council has agreed is a suitable remedy for the injustice caused to X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman