Summary: Mr A has complained about a council and hospital regarding his father-in-law, Mr B’s hospital discharge and homecare fees. We found fault with the hospital about a failed physiotherapy referral leading to a delay in this therapy which led to uncertainty about Mr B’s recovery. We did not find fault with the other aspects of this complaint. The hospital has agreed to carry out our recommendation in relation to physiotherapy.

The complaint

1. Mr A is unhappy with his father-in-law, Mr B’s discharge from Teddington Memorial Hospital (the Hospital) and care fees charged by Royal Borough of Kingston upon Thames Council (the Council) for Mr B’s homecare in 2022.

Mr A said the Hospital:

• did not properly assess Mr B’ capacity so he went home instead of to a nursing home which could have provided better support,
• did not involve the family in decision making as it said Mr B had capacity; and
• contested the family’s power of attorney at a late stage of Mr B’s hospital stay.

2. Mr A complains the Council:

• did not provide physiotherapy or help mobilising Mr B for months by which time his mobility had suffered,
• did not provide clarity on what Mr B’ care package was, either sleep in or waking care,
• charged the family for waking care when it was sleep in care which was provided to Mr B and;
• charged the Mr B for care provided during the discharge to assess period which should have been free,
• did not follow its own complaint process by providing a Stage 2 investigation of the complaint.

3. Mr A said this situation has led to distress for him and a financial shortfall for Mr B.
4. As an outcome of this complaint Mr A wants the family to only be charged the care fees that Mr B owes, not the £45,000 the Council is charging him. Mr A also does not want this situation to happen to other people.

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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. The Local Government and Social Care Ombudsman investigates complaints about adult social care providers. (Local Government Act 1974, sections 34B, and 34C, as amended).
7. 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).
8. If it has, we 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.
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 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

11. I considered evidence from Mr A in writing and over the telephone.
12. I also considered information from the Hospital including the hospital records and responses to my enquiries. I also considered information from the Council in the form of social care records and responses to my enquiries.
13. I also took into account the relevant guidance and legislation.
14. I considered comments from Mr A and the Hospital before I made this final decision.

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What I found

Background

15. Mr B went into the Hospital in 2022 for confusion, and an ulcer on his foot. He returned home in June 2022 with support from carers.
16. Mr A made a complaint about Mr B’s care and care fees and the Council responded before Mr A approached the Ombudsmen. The Hospital responded to the complaint issues after we made enquiries to it.

Capacity and power of attorney

17. Mr A said that Mr B did not have insight into his care needs and the Hospital mistakenly felt he had capacity. Because of this, he said his father-in-law went back to his home, rather than a nursing home. Also, as the Hospital felt Mr B had capacity it did not involve the family in decision making about his care and contested the family’s power of attorney for health.
18. The Mental Capacity Act 2005 introduced the ‘Lasting Power of Attorney’ (LPA). An LPA is a legal document which allows people to choose one person (or several) to decide about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to decide on their behalf. The decision must be in the person’s best interests.
19. There are two types of LPA:

• Property and Finance LPA – this gives the attorney (s) the power to decide about financial and property matters, such as selling a house or managing a bank account.
• Health and Welfare LPA – this gives the attorney (s) the power to decide about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

20. The Hospital said that Mr B was clear during his stay he wanted to return to his home. The Hospital said Mr B was aware of the risks, and although he had dementia he could identify where his home was and decide about his care. He did discuss a nursing home with staff but was sure he wanted to return to his home and so the Hospital said it no longer considered the nursing home alternative.
21. The Hospital said the Council carried out a mental capacity assessment in May 2022. This showed Mr B had capacity to make a specific decision around going home and support he would need.
22. The Hospital went on to say the power of attorney does not come into effect until the patient does not have capacity. It said it discussed this with the family the day after the mental capacity assessment and then placed the power of attorney on Mr B’s ward file. The Hospital said it did not mean to imply it was contesting the power of attorney.

Analysis

23. Statement two of the National Institute for Health and Care Excellence Quality Standard 30: ‘Supporting people to live well with dementia’ (2013) notes that people with dementia are often able to decide about their care and support. Similarly, guidance in the Social Care Institute for Excellence’s ‘Dementia Gateway’ directs readers not to assume that people with dementia cannot decide for themselves.
24. There is evidence the Hospital properly assessed Mr B’s capacity to decide about his care, followed his wishes, and discussed this with the family. Therefore, I do not find fault with this aspect of the complaint.

Physiotherapy

25. Mr A said that when the Hospital discharged Mr B, he was supposed to have physiotherapy in place to help with his mobility when he returned home.
26. He said that physiotherapy did not happen until months later. Instead, Mr B was sat in a chair all day and his mobility suffered so he could barely walk when the physiotherapy took place.
27. Mr A feels lasting damage was done to Mr B’s mobility by this delay in providing him with physiotherapy.
28. The Hospital said when it discharged him in June 2022 it referred Mr B to a community provider (the Provider) to provide physiotherapy at home.
29. The Provider has told the Ombudsmen it received a referral from the Hospital in May 2022 but then Mr B was not yet ready for discharge, so the Provider cancelled the referral.
30. The Provider did not hear from the Hospital again but received a referral from Mr B’s GP in July 2022 and placed him on their urgent waiting list. Mr B then had several physiotherapy visits in August and September 2022 and he was discharged from the service in September.
31. The Provider said Mr B’s mobility did improve although he did not progress from walking with a frame due to continuing balance issues and resulting falls risk.

Analysis

32. The discharge documentation said that Mr B would benefit from physiotherapy at home. This was to progress his independent mobilising indoors, with stairs and outside in his garden with steps. This was to be for four to six weeks.
33. The Provider confirmed that the Hospital sent the referral in May with a discharge date in early June. However after the Hospital then changed the discharge date, it failed to send another referral to the Provider.
34. That meant there was a risk Mr B’s mobility suffered during this delay for physiotherapy before the GP made the referral. This delay is lessened by the fact Mr B was put on an urgent waiting list and so the delay was a matter of weeks rather than months. However, it was fault by the Hospital leading to uncertainty for Mr A about whether Mr B’s mobility could have been improved further if he had physiotherapy earlier.

Carers

35. Waking night carers are on duty throughout the night to provide help and support to person as needed. Sleeping night carers offer a sense of security and are ready to help during the night if needed. They typically sleep in a separate room and respond when the person calls for assistance.
36. Mr A said the level of care which the Council told him Mr B would have was not in reality what was supplied.
37. In addition, there was confusion caused by whether Mr B carers were sleeping or waking carers.
38. The Hospital said the ward team referred Mr B for a period of assessment at home with 24 hour waking care.
39. It said the level of care would be determined by the Council based on the assessment that the ward team sent to them.
40. The Council would then provide a trial with 24 hour waking carer at home, during this time it would assess Mr B’s needs and decide what level of care was needed.
41. The Council also said it only started charging in July 2022 after four weeks under the Discharge to Assess model when it did not charge Mr B for the care.
42. Discharge to Assess was a system put in place to assess patients outside a hospital setting following their discharge. Until 31 March 2022 up to four weeks of care would be free following a patient’s discharge.

Analysis

43. The Department of Health & Social Care guidance ‘Research and analysis - Rapid evaluation of the 2022 to 2023 discharge funds’ stated:

‘The hospital discharge fund continued between October 2021 and 31 March 2022 to cover 4 weeks of funded care. Following this, it was expected that local systems continued to make best use of existing resources and local budgets to support safe and effective discharges, within local priorities, based on existing joint arrangements and best practices agreed locally.’

44. So, the Council was not at fault charging Mr B for his care.
45. The discharge documentation states Mr B was to have live in (waking) 24 hour care. The care agency documentation outlines the tasks carried out to support Mr B and that carers were with him 24 hours a day, repositioning him in the night and checking on him.
46. The Council wrote to the family explaining the care and the costs involved and I have not seen fault in how it arranged this care or how it was communicated.
47. Mr B also had the choice to reduce the care if he felt he did not require it as he was assessed as having capacity.
48. According to the documentation, his condition improved over the subsequent months meaning he required less support. However, Mr B wanted to keep his 24 care and this was his decision. In view of this I have not found fault with this aspect of the complaint.

Complaint handling

49. Mr A asked the Council for a Stage 2 response to his complaint.
50. The Council said the final response was a stage 1 review and in line with its complaints procedure.

Analysis

51. The Council’s policy states that the Stage 1 process is an investigation and response to the complaint. The Stage 2 process is a review of the stage 1 process to confirm the complaint was investigated properly. It is not a reinvestigation and not necessarily carried out by someone independent of the Council.
52. The Council responded to Mr A’s complaint and he then asked for a Stage 2 review. The Council confirmed it would review its stage 1 response. It then provided a final response.
53. The Council did not explicitly state its final response was a Stage 2 response. However, as it was a review of the Stage 1 process this was in line with its procedure and so there was no fault in its complaint process.

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Recommendations

54. Due to the uncertainty caused by the delay in Mr B’s physiotherapy, I recommend the Hospital, by 2 December:

• write to Mr A apologising for the uncertainty caused by the delay in physiotherapy and;

55. The Hospital should provide us with evidence it has complied with the above action.

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Final decision

56. I found fault with the Hospital in relation to a failed referral for physiotherapy which caused uncertainty for Mr A. I did not find fault with any other aspects of this complaint.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman