Summary: Mr G complained about the care and support provided to his late brother, Mr T, by the Council and the Home when dealing with his breathing and providing social stimulation. He also complained about the way the Integrated Care Board (the former clinical commissioning group) considered Mr T’s eligibility for healthcare funding. We did not find fault in the care and support arrangements provided by the Council and the Home. We found no evidence of fault in the way the former clinical commissioning group considered Mr T’s eligibility for healthcare funding.

The complaint

1. The complainant, who I shall refer to as Mr G, complains about the care and support provided to his late brother, Mr T, by Sherrington House Nursing Home (the Home) which was jointly funded by Bradford Council (the Council) and the former clinical commissioning group now NHS West Yorkshire Integrated Care Board (the CCG). Mr G says, the Council did not ensure the Home had a suitable care and support plan in place to monitor his brother’s breathing and did not provide him with a cough assist device from July 2021. He says the Home did not provide enough social stimulation when Mr T was a resident. Mr G also complains the CCG did not properly consider Mr T’s health needs when it assessed his eligibility for healthcare funding.
2. Mr G says the events complained about upset him and his family and caused avoidable distress. He would like the organisations complained about to acknowledge fault, learn lessons and improve.

Back to top

The Ombudsmen’s role and powers

3. The Ombudsmen have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
4. The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
5. 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)

Back to top

How I considered this complaint

6. To investigate this complaint, I considered:
• information provided by the complainant in writing and verbally by telephone.
• Witten and verbal information provided by the authorities complained about in response to our enquiries; and
• the law, guidance and established good practice relevant to this complaint.
7. All parties had an opportunity to respond to a draft of this decision.

Back to top

What I found

The law and guidance relevant to this complaint

8. Integrated care boards (ICBs) replaced clinical commissioning groups (CCGs) in the NHS in England from 1 July 2022. Reference to CCG is relevant to this complaint as at the time of events CCGs were in existence.
9. The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care (November 2012 (Revised)) (the National Framework) was the key guidance about Continuing Healthcare and was relevant at the time of events complained about.
10. NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. CHC funding can be provided in any setting and can be used to pay for a person’s residential nursing home fees in some circumstances.
11. Assessments of eligibility for NHS continuing healthcare and NHS-funded nursing care should be organised so that the individual being assessed and their representative understand the process, and receive advice and information that will maximise their ability to participate in informed decision-making about their future care. Decisions and rationales that relate to eligibility should be transparent from the outset for individuals, carers, family and staff alike.
12. The Decision Support Tool is not an assessment in itself. Rather, it is a way of bringing together and applying evidence in a single practical format, to facilitate consistent, evidence-based decision-making regarding NHS continuing healthcare eligibility. The evidence and the decision-making process should be accurately and fully recorded.
13. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare, the need for care from a registered nurse must be determined. If the person has such a need and it is determined their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS-Funded Nursing Care.
14. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
15. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:
• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

Background

16. Mr T lived independently in the community and received informal support from his family including Mr G. He went into hospital in March 2021 because he had a cancerous tumour in his neck. The hospital successfully removed the tumour, but Mr T suffered a stroke which meant he needed formal support when discharged from hospital. The hospital discharge was planned for early July.
17. The Council said Mr T’s initial destination on discharge was a residential nursing assessment placement. The Council wanted to assess how Mr T would manage at home as he also had an above knee leg amputation and was classed as high risk of infections and high risk of falls.
18. Mr T wanted to return home and did not want to go into a nursing home. In response to this the Council arranged a domiciliary care package so Mr T could return to his home with support in place. His care arrangements also included support from the community nursing team due to PEG feeding (when a flexible feeding tube is inserted through the abdominal wall and into the stomach). He also received informal support from his family including Mr G.
19. After a few days at home the community nursing team reported concerns to the Council about Mr T’s care package due to carer breakdown. The concerns included the risk of Mr T being left alone at night and the risk of incontinence. Following discussions with the Council Mr T agreed to a short-term placement in the Home to allow for a period of assessment. He became a resident of the Home from 8 July.
20. Mr T remained in the Home until January 2022 when he was admitted to hospital and died a few days later. Mr G said his brother’s cause of death was liver failure and pneumonia. However, he felt the Home did not do enough to support his brother’s breathing with a cough assist device (a non-invasive device that removes mucus and other secretions in the lungs for people who can’t cough effectively on their own). He also said the Council did not supervise the Home.

What happened

21. The Council confirmed the hospital discharge records and assessments did not mention a cough assist device. It said the device would be considered health equipment ordered by the hospital and a referral made to the NHS District Nursing Service for support.
22. The referral made to the NHS District Nursing Service by the hospital note the reasons for referral as support with weekly leg dressing, medication administration, administration of PEG feed and weekly rotation of PEG line. To also monitor pressure areas and provide care for pressure areas.
23. The Council shared its most recent assessment of Mr T’s needs with the Home and once it received this the Home completed a pre-admission assessment which determined it could safely meet Mr T’s needs. Once Mr T became a resident, the Home completed personalised care plans and risk assessments.
24. One of the care plans completed by the Home included a plan around Mr T’s breathing. The Home Manager said Mr T did not have a cough assist device when he arrived in the Home. The Home Manager confirmed he did arrive with a nebuliser (a device that turns liquid medicine into fine mist so it can be easily breathed in). This was used alongside the Home’s oral suction device.
25. When Mr T’s placement started the Home was following government guidance on care home visits because of the pandemic known as COVID-19. Mr T’s family could visit once weekly for up to 30 minutes. He received visits from Mr G and his sister.
26. The Council’s social worker completed an assessment of Mr T’s placement in the Home on 26 July. The Home’s Manager contributed to the assessment. The assessment noted Mr T’s breathing impacted on his daily living activities. It also said he preferred to spend most of his time in his room with the television on.
27. The Council’s social worker had a telephone conversation with Mr T and it said he raised concern about his placement in the Home. Mr T told the social worker his nebuliser had gone missing. The Council’s social worker raised this concern with the Home’s Manager.

The CCG’s consideration of Mr B’s health needs

28. The CGG arranged a decision support tool (DST) multidisciplinary team (MDT) meeting for 30 July 2021 via telephone conference call. The attendees included the CCG’s assessor plus a colleague, the Council’s social worker, the Home’s Manager and Mr G and his sister. Mr T was not present by choice.
29. The CCG provided a copy of the DST to the Ombudsmen. This shows the care domains considered and recorded during the meeting. Under the heading ‘breathing’ the form records comments from attendees. The DST refers to Mr T using a nebuliser and oral suction while in the Home. Family noted Mr T was provided with a cough assist device when he was in hospital. The DST recorded the Home had not received it when Mr T became a resident.
30. The MDT discussed Mr T being moderate or high need in this domain and decided on a moderate level of need. This was because Mr T did not have shortness of breath. After considering all the domains the health and social care professionals agreed Mr T did not have a primary health need. However, all agreed Mr T needed access to a registered nurse to assess and supervise his care plan. He was therefore deemed eligible for funded nursing care.
31. The CCG wrote an outcome letter to Mr T dated a few days after the DST meeting took place. The letter outlined the outcome and provided Mr T with details on how to appeal the eligibility decision within six months.

Mr T’s continued placement in the Home and action by the Council

32. The Council’s social worker made two visits in August specifically to assess
    Mr T’s capacity to decide where his care needs should be met, for example, in the Home or return to his own home. Mr T expressed a desire to go home but accepted he should remain in the Home for the time being where he could receive 24-hour care. The Council assessed he had capacity to make this decision.
33. The Council said it sent a care home booklet to Mr G so he could look at alternative care homes. However, Mr G and other family members wanted Mr T to return home with a care package. Mr T’s family said his discharge from hospital had been rushed and this was why the care package had broken down. The Council’s social worker advised Mr T and his family to give time for a three-month review to be completed in the Home before he returned home.
34. The Home continued to monitor Mr T’s breathing and because of concerns it contacted Mr T’s doctor in September. This resulted in a referral being made to the Respiratory Service to request a cough assist device. Later in September it contacted Mr T’s doctor at the surgery about providing a cough assist device.
35. An Advance Nurse Practitioner (ANP) visited the Home and was told about Mr T’s breathing difficulties. The ANP contacted Mr G to discuss Mr T’s health. Mr G said the ANP told him she was surprised Mr T did not have a cough assist device.
36. The Home chased up the referral in October and again in November. The GP provided some medication while Mr T was waiting for the cough assist device. The cough device was later provided.
37. The Home created a ‘Breathing and Use of Cough Assist Care Plan’ for trained staff to follow. This set out the action which needed to be taken to support Mr T with his breathing.
38. Mr T continued to express a wish to return home and his family supported this view. The Council arranged a placement review in November with Mr T and the Home’s Manager. Mr T said he wanted to move back home with an enhanced care package in place. The Council agreed to this.
39. The Council liaised with the health authority which agreed it could provide funding for some night-time care and support with PEG feeding if Mr T returned home. The Council said due to the complexity of a future care package it arranged a discharge planning meeting.
40. The discharge planning meeting took place on 24 November at the Home. Mr T’s sisters, the Council’s officer, the Home’s Manager and a CHC nurse attended the meeting. This allowed all present to discuss Mr T’s health and social care needs. Mr T chose not to attend the meeting. The family represented Mr T’s view of wanting to leave residential nursing care and return to his own home with a care package. The Council and the Home had concerns about the risks to Mr T should he return home but accepted he was making a capacitated decision.
41. Mr T remained in the Home throughout December and continued to receive nursing care. His health deteriorated and he was taken to hospital in early January 2022. He died in hospital a few days later.

Findings

The CCG’s eligibility of healthcare funding

42. The CCG obtained information from the Council and the Home when it considered Mr T’s health needs. It also invited Mr T’s family representatives to the DST meeting so they could provide information for it to consider.
43. The relevant DST domain shows the CCG considered Mr T’s needs around breathing at the time. This noted he did not have use of a cough assist device but received some support from the Home to help with clearing secretions and was at some risk.
44. I have not seen evidence of fault in the way the CCG considered Mr T’s health needs and eligibility for healthcare funding. It decided he did not have a primary health need but was eligible for FNC. If Mr T or his representatives felt the outcome of the DST was wrong, they could have followed the process set out in the CCG’s outcome letter to ask for a review. Therefore, I do not find the CCG at fault.

The care and support provided by the Council and the Home

45. Mr T did not have a care package in place before he went into hospital and could manage living at home independently. While in hospital his needs changed, and this affected his ability to live independently without formal support in place.
46. The evidence available shows the Council completed risk assessments and needs assessments leading up to Mr T’s discharge from hospital. This helped the Council decide what care package to put in place to support Mr T’s wish to return to his own home from hospital. This is evidence of good practice.
47. Mr G said his brother left hospital with a cough assist device. The evidence available shows a cough assist device should only be operated by trained staff. The referral made to the community nursing team did not show any instructions for nurses to provide community support and assistance with a cough assist device. Therefore, on the balance of probabilities, it is unlikely Mr T had one when he was initially discharged home from hospital.
48. Mr T’s time in the community was short-lived because of a breakdown in his care arrangements. When it became clear he needed to go into a nursing home because of the breakdown the Council responded quickly to ensure a nursing home placement was sourced without delay. The Council confirmed it was a discharge to assessment NHS funded placement.
49. The Council shared its assessments with the Home, and this enabled the Home to complete its assessment and put a care and support package in place. Because of this, I do not find fault in the way the Council worked with the Home to ensure it had care and support plans in place to meet Mr T’s needs.
50. The Home’s Manager said Mr T entered the Home with a nebuliser only. I have not seen evidence to indicate the Respiratory Service noted Mr T as having a cough assist device previously when it eventually provided the Home with cough assist device. Therefore, it is more likely than not that Mr T did not have a cough assist device when his placement in the Home started.
51. The evidence available shows the Council’s social worker continued to work with the Home’s Manager while Mr T was a resident. In addition to contributing to the DST the Home Manager was also present when the Council’s social worker completed a mental capacity with Mr T in August and the placement review. The Council maintained contact with the Home and health colleagues. This is evidence to show the Council continued to monitor Mr T’s placement in the Home.
52. The evidence available shows the Home had a care plan in place to deal with
    Mr T’s breathing difficulties. Initially a cough assist device was not used but, when this was needed, the Home referred Mr T for one. It had a written care plan in place for staff to follow. The Home had monitoring in place due to Mr T’s PEG feeding and he was checked several times over a 24-hour period daily. Therefore, I do not find the Home at fault in the way it provided care to support Mr T’s breathing.
53. Mr T had capacity to make specific decisions and the evidence available suggests he chose to stay in his room rather than spend his time in communal areas. The records show he had been in his room with the television on. It is noted that his family had restricted visits due to government guidelines in place at the time. This may have contributed to their view about the lack of social activities Mr T participated in the Home.
54. The Home’s Manager accepts there was a breakdown in relationship between the Home and Mr T’s family. This was made by worse by the difference of view about the risks to Mr T should he return home with a package of care. Also, in December 2021 the family had concerns about a report made by Mr T relating to the actions of a carer at the Home. The family also had concerns about how the way the Home cared for a skin integrity wound to Mr T’s leg.
55. The evidence available shows the Council and the Home responded appropriately to these concerns. For example, the Home spoke to Mr T about the allegation to clarify what he had told Mr G. It then liaised with the Council as it had statutory responsibility for safeguarding vulnerable adults. The Home also worked with a tissue viability nurse when caring for Mr T’s leg.
56. The records show the Council had difficulty sourcing night-time support and this meant Mr T’s plan return home with the support in place was delayed. Mr T had complex care needs and it was important for the Council to ensure his needs could be safely met at home with the right care package before he did go home.
57. Mr T had capacity to make decisions about where he wanted to live despite the risks to him of doing so. When he chose to return home the Council and the Home agreed his decision should be supported. Unfortunately, he did not have the opportunity to return home before he died. I have not seen evidence to suggest this was because of fault by the Council or the Home.

Back to top

Final decision

58. I have not found fault in the actions of the Council, the ICB and the Home. I have completed my investigation and do not uphold Mr G’s complaint.

Investigator’s decision on behalf of the Ombudsmen

Back to top

Investigator's decision on behalf of the Ombudsman