Summary: Mrs D complained about the way the Council, the Trust and Bromley Healthcare dealt with her late brother Mr S’s discharge from hospital, wheelchair provision and social care. We have not upheld the complaints about the Council and Bromley Healthcare. Most complaints about the Trust are also not upheld. However, we found the Trust was at fault in not making psychological support available to Mr S. The Trust accepts our recommendation, so we have completed our investigation.

The complaint

1. Mrs D complains about matters affecting her late brother (Mr S) and their parents (Mr and Mrs P). Mrs D complains about the actions of the London Borough of Bromley (the Council), Kings College Hospital NHS Foundation Trust (the Trust) and Bromley Healthcare CIC Ltd (Bromley Healthcare). She complains about the following claimed faults.
1. The Council and Trust failed to properly consider Mr S’s mental capacity to decide where to live and whether to accept services when moving from hospital to supported living accommodation (abbreviated to SLA from now on) and a care home (Home X), and while residing in SLA and Home X. The Council commissioned both SLA and Home X.
2. The Council and Trust failed to involve Mr S’s parents and Mrs D in planning his discharge from hospital and subsequent care.
3. The Council and Trust failed to properly consider how Mr S’s mobility affected his ability to safely function within the self-care environment of SLA.
4. SLA and Home X were not suitable for Mr S’s needs.
5. SLA failed to refer Mr S for psychiatric intervention despite the concerns shared by Mrs D and noticeable changes in Mr S’s mood, personality and weight.
6. There was a delay in providing Mr S with a wheelchair when he was discharged from hospital to SLA. When he received the wheelchair, it would not fit through the communal doorways in his building and was no longer suitable for him because of his weight loss.
7. The Council failed to provide appropriate social care support to Mr S, including helping him to access benefits and complete financial assessment paperwork.
2. Mrs D says that her brother’s mental and physical health deteriorated because of the problems she complains of, and this ultimately led to his death. She also says that Mr S would have been distressed by receiving social care bills for thousands of pounds. Mrs D says she, her elderly parents, and immediate family were deeply distressed by what happened. She feels aggrieved that the Council wrongly recorded she had no interest in her brother’s future care, when she was concerned, but unable to contribute much practical support because of existing caring commitments.
3. Mrs D would like the Council and Trust to apologise and improve their services to prevent similar problems affecting others.
4. Mrs D also complained the Trust failed to properly investigate and identify the cause of certain symptoms that affected Mr S in the last months of his life.

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What I have investigated

5. I have investigated the complaint as set out in paragraphs 1 to 3 above. I have not investigated the complaint at paragraph 4. I explain at the end of this decision statement why I have not investigated this complaint.

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The Ombudsmen’s role and powers

6. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
7. The Ombudsmen may investigate complaints made on behalf of someone else if they have given their consent. The Ombudsmen may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if the Ombudsmen consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, sections 26A(2) and 26A(1), as amended)
8. 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)
9. 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.
10. 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))
11. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may 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. 
12. 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

13. I have considered:
• information provided by the complainant in writing and by telephone;
• the Council’s and Trust’s written responses to my enquiries and supporting evidence; and
• relevant law and guidance, which I have referenced below when appropriate.
14. Ms D, the Council, the Trust and Bromley Healthcare have had an opportunity to comment on a draft version of this decision. I took any comments they made into account before reaching a final decision.

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What I found

Key background summary

15. In 2020, Mr S was in his early 60s and had lived in Spain for several years. He became very unwell. After having a leg amputation in a Spanish hospital, he spent time with friends. He remained unwell. His family organised and paid for an ambulance to transfer him to a UK hospital in August 2020. He eventually transferred to the Trust’s hospital.
16. In late October 2020, the Trust discharged Mr S from hospital to an interim placement in a care home (Home A) as he was homeless. The plan was for him to be considered for one of the Council’s assessment flats, also called extra care units. The purpose of these flats is to enable the Council to assess whether a person can live permanently in extra care housing.
17. The Council’s adult care services became involved with Mr S in November 2020. It agreed to a short term placement in an assessment flat. Its plan was to review Mr S’s needs and decide his long-term care and support needs within six weeks.
18. Mr S transferred to SLA on 19 November 2020.
19. By 5 January 2021, carers and management at SLA were concerned about
    Mr S’s mental and physical health and had asked for help from his GP. Records indicate Mr S would not engage with the help offered. Mrs D has told us Mr S also lost touch with his family.
20. The Council reviewed Mr S’s care needs in March 2021 and decided he needed to live in a care home. Mr S moved to Home X on 30 March 2021. His physical and mental health worsened there. He was later detained in hospital under the Mental Health Act 1983. Mr S died in July 2021.

A – Consideration of mental capacity

21. Mrs D considers that what happened to her brother indicates he lacked the mental capacity to make decisions about his health and social care.
22. 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.
23. 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. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.
24. The Council’s and Trust’s records of their contact with Mr S indicate they presumed he had capacity to make decisions about his health and care, and did not formally assess his capacity. The organisations acted in accordance with the MCA in doing so because:
• all the available records indicate Mr S could understand the relevant decisions, consequences of making or not making them, and could communicate them; and
• none of the records indicate there was a need for a more thorough assessment of Mr S’s capacity to make his own decisions.
25. I have found no fault in the way the organisations considered Mr S’s capacity to make decisions about his health and care.

B – Involving Mr S’s family

26. During the COVID-19 pandemic, the Government issued national guidance on hospital discharge called Hospital Discharge Service: Policy and Operating Model. The version published on 21 August 2020 was in force at the time of
    Mr S’s discharge from hospital. The guidance talks about discussing the discharge with the person’s family and giving them an information leaflet.
27. Care and Support Statutory Guidance (CSSG) is Government guidance on the application of the Care Act 2014. It says care and support needs assessments:
• should identify possible impact on a person's family;
• can involve a person’s family members where the person consents to this;
• should involve family members if it considers it appropriate to do so when a person has substantial difficulty in participating in the assessment.
28. Where a person has the capacity to make their own decisions about discharge, care options and information sharing, professionals such as doctors, nurses and social workers need the person’s consent to involve their family.
29. The Trust’s, Council’s, SLA’s and Home X’s records indicate that:
• the Trust tried to contact Mr D’s family when necessary, for example when the hospital pharmacy needed information, but was unsuccessful in reaching them;
• the Trust asked Mr S for Mrs D’s contact details so it could involve her in helping him get registered with a GP. Mr S preferred to discuss this with Mrs D himself;
• the Trust and Council had discussions with Mrs D in September 2020, while
  Mr S was in hospital;
• Mr S told the Trust he had informed Mrs D about his discharge from hospital in October 2020;
• SLA says it had a discussion with Mrs D in January 2021. SLA noted that
  Mrs D would not be involved in Mr S’s care because she had a lot of other caring commitments with close family members. Mrs D disputes the accuracy of this;
• the Council identified Mr S’s family connections and impact on them appropriately when planning and reviewing his care after he left hospital;
• Mr S had capacity to make decisions about who to involve in his care planning and to what extent; and
• the organisations involved Mr S’s family appropriately in the circumstances.
30. It is clear that Mr S’s family cared deeply for him and wanted to be informed and consulted more about his care. However, the evidence I have considered shows the organisations acted within the law and guidance in the way they shared information with Mr S’s family and involved them in his care. I have therefore found no fault in this part of the complaint.

C & D – Consideration of the impact of mobility needs; suitability of SLA and Home X

31. In late September 2020, Mr S was seen regularly by occupational therapy and physiotherapy. The therapists’ view, shared with Mr S, was that he may be suitable for referral to the amputee enablement team, if he engaged and complied with therapy. However, records show Mr S often:
• declined to take part in therapy and exercises;
• did not follow therapists’ advice about spending time out of bed; and
• said he felt the exercises were not worthwhile and was happier in bed.
32. On 5 October 2020, occupational therapy concluded Mr S had not shown the motivation and engagement for rehabilitation so would need a care package on discharge. Mr S could, however, move from his bed to a wheelchair and propel himself to the dayroom, although this was “effortful”. Based on this and discussions with Mr S who wanted to move to extra care housing, the Council agreed Mr S could trial this option.
33. SLA has self-contained ‘extra care’ flats with support from carers according to people’s needs. The purpose of a placement at SLA is to assess whether such a placement is suitable for a person, and whether they can function within that environment.
34. The records I have seen indicate:
• the Trust was not involved in Mr S’s placement at SLA. Mr S was discharged to Home A from hospital because SLA did not have a place for him when he was ready to leave hospital;
• Mr S was not expected to care for himself in SLA. He received visits from carers to help with all aspects of his care. However, in contrast to a care home, carers were not around 24 hours a day;
• Mr S made a capacitated decision that he wanted to live in an extra care flat; and
• SLA properly considered his suitability for an assessment placement where he could try living in this environment. This included considering Mr S’s mobility needs in detail.
35. I have therefore concluded there was no fault in:
• the way SLA considered Mr S’s mobility needs on behalf of the Council; and
• the decision to agree Mr S trialling a placement at SLA.
36. When Mr S had lived in SLA for a few weeks, SLA had the opportunity to assess him in that environment. It informed the Council that it considered extra care housing was unsuitable for Mr S and explained why. Mobility issues were not the main or only reason for this. SLA considered extra care housing was not suitable for Mr S, because he did not want to attempt independent tasks or get out of bed, and often refused care and was at risk of harm through self-neglect. Mr S’s social worker discussed this with him and explained that he would need to move into residential care if things did not change. By the time Mr S agreed to try getting out of bed more, he had lost a lot of muscle strength and getting out of bed, even with the help if two carers, was unsafe for him.
37. In March, Mr S’s social worker discussed extra care housing with him again. Mr S asked for another two weeks as he hoped to be in a better place physically and mentally. The social worker explained if things were no different, they would need to explore a different environment for Mr S to live in. Following an unsuccessful physiotherapy appointment and concerns expressed by Mr S’s GP about Mr S’s quality of life at SLA, the social worker wrote a review report recommending a move to residential care.
38. So, while it ultimately became evident that SLA was not a suitable placement for Mr S, this was not because of fault by the Trust, Council or SLA. The Council and SLA acted in accordance with Mr S’s wishes by agreeing to him staying there longer. Mr S had the mental capacity to make decisions about his care at the time.
39. Mr S moved to Home X on 30 March 2021. Home X’s pre-admission assessment shows it was aware of Mr X’s mobility and health issues, continence needs, and his resistance to accepting care.
40. The Council reviewed Mr S’s care plan on 3 June 2021. A social worker spoke with Mr S and noted he told her:
• he felt settled and comfortable in Home X;
• the care he received there was much better than at SLA in every respect;
• staff were wonderful and the food was good;
• he was slightly more accepting of the support at Home X than at SLA;
• he mostly stayed in his room but was considering going outside;
• Mrs D visited him at Home X;
• he was happy to stay in Home X; and
• the only thing he could identify that he needed was a call bell.
41. As part of the same review, Home X told the social worker:
• Mr S’s health was worsening because of his non-compliance with medication;
• it was working closely with Mr S and his GP to improve his situation; and
• it continued to be able to meet Mr S’s basic needs.
42. There is no indication in the records I have reviewed that Home X was not suitable for Mr S. The records indicate that:
• he wanted to stay there and was happy with his care there;
• the care he accepted met his basic needs;
• he refused other care, which led to his health worsening;
• he had the mental capacity to make that decision; and
• Home X acted appropriately in respecting Mr S’s wishes and while trying to improve his situation.
43. I have therefore found no fault in this part of the complaint.

E – Mental health support referral

The Trust’s actions

44. The British Society of Rehabilitation Medicine: Amputee and Prosthetic Rehabilitation Standards and Guidelines say that all amputees should have access to psychological support from a practitioner psychologist or counsellor. The Trust accepts:
• there is no evidence this happened, or that anyone had a conversation with
  Mr S about his longer-term mental health wellbeing;
• the Trust should have considered doing this as having an amputation is a life changing event; and
• this was a lapse in care.
45. This was fault. I consider it unlikely that the outcome for Mr S would have been significantly different, had the Trust offered psychological support to Mr S. This is because records indicate Mr S was resistant to accepting other therapies and support throughout the period I have investigated, including mental health support when his GP discussed this with him in 2021. However, the fault has caused uncertainty for his family and we recommend the Trust should apologise to them for this.

The Council’s and care providers’ actions

46. Records show the Council’s social worker and SLA staff:
• were concerned that Mr S was depressed while in SLA;
• raised concerns with Mr S and his GP; and
• encouraged Mr S to discuss this with his GP.
47. Records also indicate that, while Mr S was at SLA, his GP:
• spoke with Mr S and discussed these concerns with him;
• considered Mr S had behavioural issues, but also the mental capacity to make the decisions he did; and
• considered there was no evidence of any underlying mental health issues.
48. After Mr S moved to Home X in March 2021, there are records showing:
• he mostly refused to take his medication, leading to a serious worsening of his health;
• he isolated himself in his room, often with the curtains drawn;
• Home X considered his behaviour could be linked to depression; however
• Mr S refused to engage with mental health support offered to him. He had the capacity to make that decision.
49. The Council, SLA and Home X acted appropriately and without fault in recognising potential problems with Mr S’s mental health and referring him to health services.

F – Wheelchair

50. The Trust was responsible for referring Mr S to Bromley Healthcare’s wheelchair services. Bromley Healthcare was responsible for supplying the wheelchair.
51. The Trust measured Mr S for a wheelchair while he was in hospital in September and October 2020. It sent a referral to Bromley Healthcare on 5 October. Bromley Healthcare considered the request on 8 October and contacted the Trust on
    19 October to find out Mr S’s discharge address as it could not reach Mr S on his mobile. On the same day:
• the Trust confirmed it did not yet have a discharge address;
• Bromley Healthcare confirmed it did not have a wheelchair in Mr S’s size in stock and would order one to be delivered to its store while waiting for confirmation of Mr S’s discharge address; and
• Bromley Healthcare raised a work order for the wheelchair.
52. Mr S’s wheelchair was not ready in time for his discharge from hospital at the end of October 2020. In the weeks leading up to his discharge, the Trust had put Mr S in touch with a charity that could help him rent a wheelchair while he waited for his to be delivered. He did not want to do this. The Trust therefore loaned him a wheelchair.
53. When Mr S moved from Home A to SLA in November 2020, it became clear that the loaned wheelchair would not fit through the front door of the flat.
54. Bromley Healthcare received Mr S’s wheelchair on 21 December 2020 and delivered it to Mr S’s address the same day. However, he could not use it until Bromley Healthcare could complete a handover appointment. This happened on 13 January 2021, following two cancellations due to staff COVID-19 illness.
55. This means that, for the 25 days between 19 December 2020 and 13 January 2021, Mr S did not have access to a wheelchair he could use to move from his flat to other areas of SLA and outside.
56. While in SLA, Mr S regularly preferred to stay in bed and would not carry out the exercises recommended by therapists. This continued after his own wheelchair arrived. When staff could persuade him to sit on his wheelchair, they considered that he had lost so much muscle condition that he could not sit upright safely.
57. There was no fault by the organisations in relation to this part of the complaint. This is because:
• the Council and Trust had no duty to provide a wheelchair for Mr S;
• the Trust measured Mr S for a wheelchair and referred him for wheelchair services in good time;
• despite not having a duty to do so, the Trust loaned a wheelchair to Mr S when it became aware his own wheelchair would not be ready in time;
• the delays caused by needing to wait for a wheelchair to be specially made and by COVID-19 sickness were not Bromley Healthcare’s fault; and
• Mr S’s difficulties in using his own wheelchair when it arrived are unlikely to have been caused by delays in supplying the wheelchair.
58. Mr S had a wheelchair when leaving hospital, although it was not made to measure for him. Further, he made capacitated decisions to stay in bed most of the time after he left home, so having a wheelchair that would not fit his flat’s entrance door frame for 25 days did not cause him a significant injustice.

G – Social care support

Law and guidance

59. Section 9 of the Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve.
60. The Care Act 2014 also gives councils a legal responsibility to provide a care and support plan. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person. Councils must keep care and support plans under review.
61. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
62. Where a council has decided to charge for care, it must carry out a financial assessment to decide what a person can afford to pay. A council is treated as having completed a financial assessment if:
• the person refuses a financial assessment; or
• the council could not complete the assessment because the person refuses to co-operate with the assessment.
63. Where this happens, the person can be liable for the full cost of the social care the council decides to provide.

What happened

64. While Mrs D’s complaint to us on this issue was about the Council, for the sake of completeness, I have included actions the Trust took to provide support to Mr S.
65. The Trust’s discharge coordinator helped Mr S complete a homelessness assessment form in October 2020, then emailed it to the relevant department. The Council said Mr S was not eligible for housing, including extra care housing. The discharge coordinator explained what had happened to Mr S, asked the Council for an explanation and referred the matter to managers. The Trust also referred Mr S to tenancy support and advocacy services and provided an occupational therapy report to support Mr S’s housing application.
66. The Council started a needs assessment with Mr S on 19 October 2020 and on the following day approved a placement in extra care housing.
67. On 26 October 2020, the Trust’s occupational therapist referred Mr S to an advocacy group for help with wheelchair hire until the wheelchair service could deliver his own chair. Mr S decided not to rent a wheelchair because he had limited funds. The Trust lent him a wheelchair and transfer board to take to Home A.
68. The Trust also:
• helped Mr S register for a GP in the area;
• referred Mr S to an agency that could help with shopping once he moved into SLA; and
• referred Mr S to a hospital aftercare service.
69. The Council completed its assessment in November 2020. The assessment concluded Mr S had the mental capacity to manage his own finances. The social worker told Mr S the Council would need to do a financial assessment, signposted him to the Department for Work and Pensions (DWP) for information about benefits and offered a referral to a charity to help him claim benefits. Mr S told the social worker that he would look into benefits when he settled in at SLA.
70. Following the assessment, the Council produced a support plan for Mr S. This included the following support:
• personal care;
• help with making food and drinks;
• administering medication;
• cleaning; and
• help with shopping.
71. When Mr S was admitted to hospital again in November 2020, his clinical records show the Trust and Council worked with SLA to ensure he had a suitable care package when he returned there.
72. The Council’s records say it tried to contact Mr S by telephone three times in November 2020 to discuss a financial assessment but had no response. It therefore sent him a financial assessment form and a covering letter explaining what he needed to do and who to contact at the Council if he needed more information. Having received no response from Mr S, the Council sent him a reminder on 7 January 2021. The reminder letter explained that if he did not complete and return the financial assessment by 21 January, he could be liable for all his care costs. The letter also provided contact details if Mr S needed more information. As Mr S did not reply, the Council wrote to him on 26 January to explain it would be charging him the full cost of his care. The letter included contact details if Mr S wanted more information as well as details of how to appeal.
73. On 2 March 2021, SLA emailed Mr S’s social worker to tell him that Mr S had received a bill for care and asked for help with this. SLA asked the social worker to check if the Council had done a financial assessment for Mr S, and if not, to arrange for one.
74. The Council reviewed Mr S’s care and support plans in March and June 2021, in response to changes in his circumstances. Both times, the Council considered Mr S had the mental capacity to manage his own finances. During the review of June 2021, the Council asked Mr S if there was anything he wanted or needed. Mr S did not ask for help with benefits or financial assessments at the time. The review form also says the Council made it clear to Mr S that he could contact it at any time if he needed support.
75. The Council wrote to Mr S on 14 May 2021 with another offer of a financial assessment. It sent three more reminders over the following two months. All the letters included contact details if Mr S wanted to ask for more information.
76. There is no evidence that Mr S responded to the Council’s requests for financial assessment information or made use of the invitations to contact officers for help.

Was there fault causing injustice?

77. The available evidence indicates that:
• while Mr S was in hospital, the Trust supported him with issues such as a homelessness application and referrals to agencies that could help him when he left hospital;
• the Council completed an initial assessment, a care and support plan and reviews in accordance with the Care Act 2014 and associated guidance;
• the Council offered Mr S appropriate information and help with navigating benefits and its financial assessment process; and
• Mr S made capacitated decisions not to engage with the Council’s financial assessment or the help that was available to him with his finances.
78. Therefore, I have found no fault in this part of the complaint.

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Agreed actions

79. To remedy the injustice caused by the Trust’s fault in failing to ensure Mr S had access to psychological support, the Trust will write to Mrs D and Mr P to apologise for the fault we have identified and its impact on them. The Trust should do so within a month of this decision.

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Final decision

80. Most of Mrs D’s complaints about her brother’s care and treatment are not upheld. I have found the Trust’s failure to ensure Mr S had access to psychological support was fault. The Trust accepts my recommendation for apologies to Mr S’s sister and father. I have therefore completed my investigation.

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Parts of the complaint that I did not investigate

81. I did not investigate Mrs D’s complaint about the Trust failing to properly investigate the underlying causes of Mr S’s symptoms. This is because it was appropriate for the Parliamentary and Health Service Ombudsman (PHSO) to consider this matter separately.

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Investigator's decision on behalf of the Ombudsman