Summary: We investigated a complaint about arranging care for Mr Y after he left hospital. We found fault with the Council; there were unexplained delays when it was searching for a nursing home placement for Mr Y in November 2021. The Council also did not investigate Dr X’s complaint in line with guidance and provided responses which were unclear, contradictory and did not take account of all the facts. Dr X was caused unnecessary frustration when dealing with the Council. We recommended an apology, service improvements and a financial remedy to address this injustice. We found no fault with the actions of the Trust or the ICB.

The complaint

1. Dr X complains about failings, delays, and poor communication by London Borough of Brent (the Council) and London North West University Healthcare NHS Trust (the Trust), during the process of arranging S117 aftercare for his father, Mr Y, from March 2021 until his death in December 2021. Specifically, Dr X complains the Council:
• Did not communicate with the family or provide clear information about what S117 funding it could provide and how this could affect the choice of placement for Mr Y
• Did not explain why Mr Y needed a nursing home rather than a residential care home
• Inappropriately put budgetary considerations before Mr Y and his family’s best interests by preventing him from returning home. It also unfairly dismissed possible placements the family suggested.
• Was responsible for avoidable delays in finding a suitable placement which meant he remained in hospital for an unnecessarily long-time
• Lied about the date of completion of Mr Y’s Needs Assessment and failed to provide a copy when asked
• Did not investigate his complaint based on the available evidence and its response was contradictory
2. Dr X believes the Council placed his father in a poorer quality home because it did not want to pay for the ones he suggested. This had a negative effect on his father. The delays in finding the placement meant Mr Y was in a hospital bed for over two months and he could not walk when he left. Dr X found dealing with the Council both while his father was alive and during the complaints process stressful. He had to pay for an independent social worker and seek legal support to get the best placement for his father.
3. Dr X wants an independent investigation, financial recompense, and service improvements.

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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 for 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)
6. 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 acts to stop the same mistakes happening again.
7. The Ombudsmen cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
8. 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

9. I considered the complaint Dr X made to the Ombudsmen and information he provided by email. I also considered the information the Council and the Trust provided in response to my enquiries. I also made enquiries to the Integrated Care Board (ICB) because Mr Y received S117 aftercare funding.
10. I shared a confidential draft with Dr X, the Council, the Trust and the ICB to explain my provisional findings and invited their comments on them. I considered their comments before making a final decision.

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What I found

Background

11. Mr Y had vascular dementia. The Council’s adult social care team assessed his needs in 2018 and gave him a home care package from June 2018. A new assessment took place in April 2019 and the Council decided he no longer needed the care package.
12. In August 2020 Mr Y was detained under the Mental Health Act 1983 (the MHA) and moved to a mental health ward. He left hospital to go into a Nursing Home in March 2021.
13. Section 117 of the MHA states a person may be eligible for aftercare services, if they are intended to meet a need that arises from or relates to a mental health problem and reduces the risk of the person’s mental health condition getting worse.
14. S117 of the MHA imposes a duty on health and social services to meet the health and or social care needs arising from, or related to, the persons mental disorder. This is known as S117 aftercare.
15. S117 does not define what aftercare services are. Section 33.3 of The Mental Health Code of Practice 2015 (the MHA Code) explains “after-care services mean services which have the purposes of meeting a need arising from or related to the patient’s mental disorder and reducing the risk of a deterioration of the patient’s mental condition (and, accordingly, reducing the risk of the patient requiring admission to hospital again for treatment for mental disorder)”. Section 33.4 adds aftercare can “encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs”.
16. Section 33.7 of the MHA Code states Councils and CCGs (Clinical Commissioning Group, since replaced by ICB) should “maintain a record of people for whom they provide or commission aftercare and what aftercare services are provided.”
17. The ICB shares a statutory duty with the Council to provide, or arrange, S117 aftercare services for eligible service users in the area. The ICB confirmed during this investigation it holds a register and has oversight of the Trust’s policies and procedures.
18. Mr Y became eligible for S117 funding from March 2021 after he was detained under Section 3 of the MHA after showing challenging behaviour to staff while in hospital.
19. Dr X held a Lasting Power of Attorney (LPA) for Health and Welfare.

Section 117 aftercare and delays finding suitable placement

20. Dr X complains the Council did not give him clear information about what care S117 funding could provide. He says the Council did not explain why he needed a nursing rather than residential care and because of this, it unfairly dismissed possible placements. The combined effect of this was to cause delays in placing Mr Y which meant he remained in hospital for an unnecessarily long time, and he died in hospital.

First placement search

21. Mr Y went into hospital in early August 2021. Before his discharge, Mr Y’s allocated social worker spoke to Dr X because he had safeguarding concerns about Mr Y’s original placement. Dr X told the social worker Mr Y was not to go back to the placement. He wanted Mr Y to go home, or the Council should search for a new placement. Discharge planning started on 11 August and the social worker asked Dr X if he had any placements he would prefer which the Council could contact.
22. On 19 August, professionals held a best interest meeting and Dr X attended. The notes say Mr Y “to return home provided [24hours] care can be provided under the s117 funding. It was also felt that whilst discussions [takes] place re: funding [Mr Y] will be considered for an interim placement and [Dr X] to send names of nursing homes he would like to be explored.”
23. On 20 August, the social worker emailed Dr X to confirm the Council would not commission 24-hour home care as it could provide this in a nursing home. The Care and Support Statutory Guidance states at 10.27 “in determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position… The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met.” The Council considered what was best for Mr Y, his needs, and decided these could be met in a nursing home.
24. On 21 August, Dr X emailed the social worker his preferred choice of placement for Mr Y, namely A. The social worker passed his preferences to the Council’s brokerage team, who are responsible for contacting the placements and arranging the care package. The brokerage team questioned whether A was suitable because the Trust said Mr Y had nursing needs and would need a nursing home rather than a residential care. On 23 August, the social worker told the brokerage team they had spoken to Care Home A, who confirmed it could meet Mr Y’s needs based on the brief information Dr X had shared with them. The brokerage team asked the social worker to speak with Dr X and explain Care Home A had not completed an assessment yet, but it could ask them too.
25. On 24 August, the Trust sent a funding request to the CCG to approve the S117 funding for an interim nursing home placement.
26. On 25 August, the social worker emailed Dr X to say the brokerage team did not think Care Home A was suitable. The Trust told the Council Mr Y had nursing needs and needed a nursing home, even as a short-term placement. Despite this, the brokerage team did email Care Home A, and two other placements which Dr X provided, to see if they were suitable for Mr Y. On 27 August, the Council emailed another two placements to see if they could care for Mr Y.
27. The social worker chased the brokerage team for an update on 1 September. The brokerage team confirmed only one of the contacted placements had responded so far. Dr X’s preferred choice, Care Home A, had not replied to the Council’s email. Dr X sent some more nursing home alternatives to the social worker on 2 September.
28. On 6 September the brokerage team contacted Care Home B, who confirmed it could meet Mr Y’s needs and had a vacancy. The social worker spoke to Dr X, who confirmed while he preferred Care Home A, he agreed for his father to go to Care Home B. Mr Y went to Care Home B on 13 September.

Second placement search

29. Mr Y became unwell while in Care Home B and went back into hospital.
30. Professionals invited Dr X to attend a care plan approach meeting on 8 October. Dr X told everyone present he did not want Mr Y to go back to Care Home B as he had concerns over the care he had received and was going to make a complaint. He also asked for physiotherapy for Mr Y and for him to return home soon. Mr Y’s social worker explained it was not safe for him to return home because he would need two full-time, live-in carers and S117 could not fund this. A doctor also explained Mr Y was now too frail for physiotherapy.
31. On 15 October the Council received a referral from the hospital to look for a new placement for Mr Y. It repeated Dr X did not want Mr Y to go back to Care Home B.
32. While in hospital, the Trust completed a nursing needs assessment for Mr Y. The Trust sent the completed assessment to the Council on 22 October. It stated “outcome of family planning meeting 21/10: Patient to be discharged to new care home (Nursing home or Residential home with high staffing level). The type of care required will be decided by Brent team”. The same day, a doctor from the Trust spoke to the social worker and said the Trust was worried Mr Y had been in 10 different homes or hospital settings in the last year. He also said the Trust thought Care Home A would be unable to provide acceptable longer-term care for Mr Y as he would need palliative support soon.
33. On the same date, Dr X emailed the Council with three lists: one with nursing homes and two with residential care. Dr X advised Care Home A was still his preference. A deputy manager from the Council replied to explain the advice given to them by the Trust doctor about Mr Y’s needs and suggested a meeting to discuss.
34. Dr X attended a multidisciplinary team conference on 25 October. He told professionals he spoke with the manager from Care Home A who confirmed it understood Mr Y’s needs and could provide suitable care. Professionals repeated they did not feel Care Home A was suitable because he had nursing needs, but because it was his preference it would explore it further. Everyone at the meeting agreed this should be Mr Y’s last placement as the constant moving was placing too much strain on his body.
35. Dr X was unhappy the Council did not contact all the named homes on his lists. The meeting on 25 October explained Mr Y had nursing needs so it would not contact residential care homes. During our investigation, the ICB and the Council explained several of the nursing homes Dr X suggested did not have an acceptable Care Quality Commission (CQC) rating. The CQC inspect a care or nursing home and rate the quality of care overall. It asks five key questions before awarding a rating of either outstanding, good, requires improvement, or inadequate. It is a legal requirement of all providers to display their CQC rating. This is an acceptable explanation, but I cannot see any evidence the Council explained this to Dr X. If it had, Dr X may have understood the Council’s actions and it would not have caused him avoidable frustration. This is an injustice to him.
36. On 27 October, the Trust’s discharge coordinator emailed Dr X with an explanation of Mr Y’s nursing needs. It confirmed it asked the Council to look for a nursing rather than a residential care placement for Mr Y. The Council highlighted this in emails on 1 November, and confirmed Mr Y was medically fit for discharge. The Council agreed to speak to Care Home A to find out if it could meet his needs, when provided with a detailed breakdown.
37. On 1 November the social worker spoke to Dr X’s independent social worker about their concerns for Mr Y at Care Home A. It agreed the social worker would contact Care Home A directly and ask them to evidence how it could provide suitable care for Mr Y. The same day, the Council began to review the lists Dr X provided with priority on Care Home A.
38. On 2 November the social worker spoke to the manager of Care Home A who confirmed, referencing Mr Y’s specific needs, it could meet care for Mr Y but it would need to order equipment before discharge. The social worker spoke to the independent social worker later the same day to update them, and confirmed Care Home A was a home the Council would consider for Mr Y as it was satisfied it could meet his needs.
39. On 4 November, the social worker spoke to the Trust about the suitability of Care Home A who said it had concerns about medication and skin viability, and it would like reassurances on these areas before Mr Y left hospital. The Council emailed Care Home A on 12 November to ask. It took six working days to ask these questions. There is nothing in the records which explains why it could not have done so sooner.
40. There is then no further listed contact until 22 November when there is a call note from the social worker who spoke to the manager at Care Home A. There is no explanation why the social worker did not contact the care home sooner. The call notes explained the manager advised although it did not have on-site nursing staff, it worked with palliative and district nursing teams who could provide the care Mr Y needed and could give all medication. The social worker explained they would need to speak to the Trust doctor to find out if they agreed Care Home A could meet Mr Y’s needs.
41. Later the same day, the social worker called the doctor at the Trust. The social worker explained what the Care Home A manager told them and asked whether on this basis, the doctor would agree Care Home A was a suitable placement for Mr Y. The doctor confirmed Care Home A could meet Mr Y’s needs and he could move there as soon as it was possible.
42. The social worker spoke to the manager of Care Home A again on 23 November. The manager said it could take Mr Y but wanted to complete its own pre-assessment first. The Council’s brokerage team sent the pre-assessment paperwork to Care Home A the same day.
43. On 1 December the deputy manager emailed Dr X to explain Mr Y would move to Care Home A as soon as it received the equipment needed for his care.
44. On 3 December, the Council confirmed what equipment Mr Y needed and the delivery details and ordered it. Unfortunately, Mr Y’s health declined, and he died in hospital on 7 December before he could move to Care Home A.
45. There was a total delay of 12 working days in November which the Council has not explained. Mr Y was in hospital during this time and received care so the impact to him was minimal. However, Dr X did not know what was happening, only that his father was medically well enough to leave hospital and could not because he did not have a placement to go to. Dr X complains about delays in discharging Mr Y, and these unexplained delays contributed to this. He has also been left with uncertainty about whether, had there been more urgency, Mr Y would have been able to leave hospital. The avoidable stress caused by these delays is an injustice to him.

Summary

46. The evidence shows, at first, there was a difference in opinion of Mr Y’s needs. The Ombudsmen would not expect the wishes of someone holding a LPA placed above the safety of the person receiving the care. Dr X wanted Mr Y to go home at first and professionals agreed this would be best for him, if it was safe for him to do so. While I appreciate Dr X was not happy Mr Y could not return home with a full care package, the professionals followed the correct process by exploring what was best for Mr Y thoroughly, considering what Dr X wanted, consulted with medical professionals about Mr Y’s individual needs and properly checked whether suggested placements could safely meet his needs.
47. As Mr Y’s overall health worsened, the Trust told the Council he needed a nursing home to meet his needs. Dr X was insistent Care Home A could care for his father. The Council did not agree based on the information the doctors at the Trust gave it. Dr X gave the Council information which enforced his view and the Council spoke to the Trust’s doctors and asked them to reconsider Care Home A. After investigation into how Care Home A could meet Mr Y’s needs, the Trust agreed Care Home A was suitable and agreed Mr Y could move there.
48. There is no evidence the Council dismissed Care Home A because of the cost of it but it rightly exercised caution because of the medical advice it received from the Trust. The evidence shows the Council did revisit and challenge the Trust on this when Dr X gave them more information. It was reasonable for the Council to prioritise the need to ensure Care Home A fully and properly understood all of Mr Y’s needs, and it would have been inappropriate for the Council to accept Dr X’s word on this. The Council has a responsibility to satisfy itself that Care Home A could meet all of Mr Y's assessed needs, and the evidence shows it did this.
49. The ICB told me it was sorry to hear Dr X did not feel he had enough information about S117 funding. It explained it would work with the Trust to ensure all staff are confident in explaining the S117 arrangements to patients and families. The Ombudsmen has not found any fault with the Trust or the ICB but recognise this as positive action in response to Dr X’s complaint.
50. I have not seen any evidence to suggest any organisation set a maximum budget for the care of Mr Y. Instead, the delays in him moving to Care Home A were because professionals needed to satisfy themselves it was a safe place for him. The evidence shows the Council focused on Mr Y’s assessed needs and how to meet them. While it said it would not pay for Mr Y to return home, this was because his needs could be met fully in a more cost-effective way in a nursing home and in August the Trust sent a sent a funding request to the CCG to approve the S117 funding for an interim nursing home placement, which it did and Mr Y moved to Care Home B.
51. The Council caused frustration and distress to Dr X as he did not know what was happening in November 2021. He felt he had no choice but to get help from an independent social worker as he felt the Council were not putting the needs of Mr Y above its own budgetary considerations. There were delays in November 2021 which the Council has not explained, and I understand why this would have been frustrating to Dr X after a long period of concern for his father’s health. This is an injustice to him which the Ombudsmen will make recommendations to remedy.

Complaint handling

52. Dr X complains the Council did not investigate his complaint based on the available evidence and its response was contradictory. He also complains it took a long time to receive a response which was only after he chased the Council multiple times for an answer.
53. I have reviewed the full complaint file provided by the Council, as well the information provided separately by Dr X. I have also considered Brent Council’s Complaint Policy and LGSCO’s Effective Complaint Handling for Local Authorities Guidance.

Timeliness

54. Dr X made a complaint about the issues under Ombudsmen investigation to the Council on 4 September 2021. The Council acknowledged the complaint and sent a first response on 29 September.
55. Dr X emailed the Council on 11 October to say he wished to escalate his complaint to stage two. On 14 October the Council asked him for more information why he was unhappy and on 26 October he provided his full explanation. The Council issued a final response on 17 March 2022.
56. I asked the Council what happened. It explained the delay in issuing a stage two response was due to a delay receiving information from the Care Homes involved in Mr Y’s care. It also said it was aware there was another Ombudsmen investigation about Mr Y's care in 2020 which may have impacted on its stage two response.
57. Brent Council’s Complaint Policy states “complaints will be acknowledged within 5 working days and will normally be answered within 20 working days for Stage 1, and 30 working days for Stage 2.” It adds “if the Council requires more information to complete its investigation, this will be requested from the complainant and the case paused until the information has been provided” and “if additional information or complaints are provided during the course of the investigation, the Council may extend the response time to consider the new information”.
58. The policy also explains “once an escalation request is received, a final response will be issued to the complainant within 30 days. However, if the complaint is complex and the Council require more time to investigate, the complainant will be informed in writing of the new timescale which will be up to a maximum period of 6 months.”
59. Complaints about Adult Social Care follow a statutory complaints procedure governed by law and the process can take a maximum of six months to complete from the date of receipt.
60. Dr X explains he had to continually chase his complaint as he did not know what was happening or why he had not received a final response. This caused him frustration which is an injustice to him.
61. The Council did provide Dr X with a stage one response in 20 working days. The Council did not complete its stage 2 investigation and provide a response within 30 working days as outlined in its own policy. It also did not complete its complaint investigation within the maximum statutory timescale of six months. This is fault which caused an injustice to Dr X.

What the Council investigated and the responses provided

62. Dr X believes the Council provided contradictory information in its complaint responses. He attended the best interest meeting which agreed the least restrictive choice for Mr Y would be for him to return home if S117 could fund it. Dr X also believes the Council did not consider all the evidence he provided during its investigation.
63. LGSCO Guidance on Effective Complaint Handling for Local Authorities advises “when a person asks you to consider their complaint, it is your role to investigate the issue, taking into account all the available facts and evidence.”
64. LGSCO’s Principles of Good Administration also state authorities should be “open and clear about policies and procedures and ensuring information, and any advice provided, is clear, accurate and complete.” It adds during complaint handling authorities should state “the criteria for decision making and giving reasons for decisions”.
65. I have reviewed the two complaint responses from the Council to Dr X from 29 September 2021 and 17 March 2022. I also reviewed Dr X’s original complaint and his stage one feedback.
66. Both responses from the Council contain statements which do not give account to the full facts. The first response states “in your complaint, you mentioned that your father was unable to return to the care home where he was residing prior to hospital admission.” Mr Y’s records show this was due to a safeguarding enquiry. This is a significant process which the Council does not mention. The second response states “A multi-disciplinary team, consisting of medical staff and social services officers, will in their professional opinion, recommend the most suitable discharge exit for a client. In your father’s case, the team recommended that your father should be discharged to a nursing home.” From review of the evidence, this is not correct. The best interest meeting determined it was best for Mr Y’s to return home if S117 could fund it. It was only after professionals knew this was not possible, they recommended he go to a nursing home.
67. The first response has language which is unclear and while saying it has reviewed the Council’s own records, does not account for the evidence Dr X provided. An example of this is when it states “I have reviewed our records and have not been able to verify your comments from our records. I however do note the social worker has had some email exchanges with you. I have also discussed with your father’s social worker about your comments about her giving poor information to [Care Home C] so that they would reject your father.” This statement is not well written and has understandably angered Dr X as it does not answer his complaint about poor communication and lack of responses from the social worker.
68. Neither response refers to how the Council considered the information Dr X provided, so even if the Council did consider it, we cannot see it to be the case.
69. The Council has not provided clear, evidence-based responses. This is fault. This has frustrated Dr X who was trying to manage his father’s care and forced him to continue his complaint with the Ombudsmen as he felt the Council were being evasive and unwilling to help him. This is an injustice to him.
70. In its final response, the Council does accept fault on one point. It agrees it did not explain the difference between a residential care and a nursing home to Dr X. This caused confusion and mistrust between Dr X and the Council, which is an injustice to him. The Council apologised to Dr X. If it had explained early in the discharge process, it may have made finding a placement for Mr Y easier and helped communication between all parties. We consider the apology a suitable remedy for the injustice caused to Dr X on this point.
71. Dr X was distressed and frustrated and had to continue with his complaint. He spent time compiling evidence to give to the Council to support his concerns on top of managing his father continuing health care needs. He had to pursue his complaint to the Ombudsmen after his father’s death as he still had concerns which the Council did not address during local resolution. This is an injustice to him.
72. In summary, the Council did not respond to Dr X’s complaint within the statutory six-month timescale. It also did not provide clear, evidence-based decisions and used language which was unclear and confusing. It did also did not refer to the evidence Dr X provided which would have helped him understand the decisions. This fault caused an injustice to Dr X which we will make recommendations to remedy.

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Agreed actions

73. The Ombudsmen recommended and the Council agreed to the following actions.
74. Within one month of the date of the final decision, the Council should:
• write to Dr X to acknowledge the faults identified by the Ombudsmen and apologise for the avoidable distress and frustration this caused him both at the time of the events and in the local complaint’s resolution process
• pay Dr X £200 for the uncertainty caused during the search for a placement for Mr Y in November 2021 and for not responding to his complaint within the statutory six-month timeframe which caused him avoidable distress and frustration
75. Within two months of the date of the final decision, the Council should prepare a briefing note and share with complaints handling staff the importance of handling complaints in line with Ombudsmen and statutory guidance.
76. The Council should provide evidence to the Ombudsmen it has completed these recommendations.

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Final decision

77. I partly uphold Dr X’s complaint. I found fault by the Council which led to an avoidable injustice to Dr X. The agreed actions will provide a suitable remedy. I found no fault by the Trust or ICB.

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Investigator's decision on behalf of the Ombudsman