The Ombudsman's final decision
Summary: We investigated a complaint about the care provided to Mrs M and the way the Council dealt with Mr L. We found fault with the Council who failed to fully explain the financial implications of a temporary care home stay to Mr L. The Council also failed to communicate with Mr L about delays in Mrs M leaving the care home; the Council has already remedied this injustice. We recommended and the Council agreed to an apology and a symbolic payment to remedy the outstanding injustice to Mr L. We found no fault with the Trust.
The complaint
Mr L complains about the care Lancashire Teaching Hospitals NHS Foundation Trust (the Trust) and Lancashire County Council (the Council) provided to his mother, Mrs M. Specifically, he complains about: Mrs M’s discharge from the Royal Preston Hospital to a short-term care home placement in November 2022. The Trust and the Council did not adequately involve him in the arrangements, despite being attorney for Health and Welfare (LPA) for his mother. Mr L said communication was poor around when and where the discharge would be too. He also feels the financial implications were not fully explained; Mrs M’s discharge from the care home to her own home; and the Trust not having a rehabilitation management plan for when Mrs M returned home.
Mr L had complained to the Trust earlier in 2022 when it did not recognise he held power of attorney. The Trust told him it would not happen again and it would change its procedure to ensure others did not have the same issue. Despite this, it did happen again. Mr L says he and Mrs M experienced extreme anxiety and were frustrated with the way they were treated. He also feels his ability to make the best choice for his mother was taken away by him not being included in the discussions.
Mr L is seeking explanations, systemic improvements and financial redress for incurred costs and stress.
The Ombudsmen’s role and powers 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). The Local Government and Social Care Ombudsman investigates complaints about adult social care providers. (Local Government Act 1974, sections 34B, and 34C, as amended). The Health Service Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’ in the delivery of health services (Health Service Commissioners Act 1993, section 3(1)).
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).
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.
We 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. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7)).
If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i)).
How I considered this complaint
I considered the complaint Mr L made to the Ombudsmen and information he provided over the telephone. I also considered the information the Council and the Trust provided in response to my enquiries.
I shared a confidential draft with Mr L, the Council and the Trust to explain my provisional findings and invited their comments on them. I considered all the comments I received before making a final decision.
Background
Before the events under investigation, Mr L was in contact with the Trust about Mrs M’s care needs. The Trust did not recognise he held LPA for health and welfare for Mrs M, and he complained. The Trust apologised for the oversight and explained it would amend its system so a prompt would remind staff to check. Mr L was satisfied with the action taken and did not pursue the issue further.
In November 2022 Mrs M had a fall at home and broke her arm, she went into hospital for treatment.
Mr L holds lasting power of attorney (LPA) for both health and welfare and financial and property affairs for Mrs M.
Discharge from hospital to short term care placement Mr L complains the Council and the Trust did not fully involve him in the arrangements to move Mrs M from hospital to a short-term care placement while she recovered. As Mr L held LPA, he feels he should have been involved throughout.
Mr L also complains communication was poor about when she would be discharged and says the financial implications were not fully explained.
Mrs M was well enough to leave hospital on 7 November. She wanted to go home, and Mr L also agreed to her discharge the next day. This was arranged under the Home First discharge pathway, which aims to take patients out of long-term hospital beds and into their own homes with support as soon as they are well enough. This pathway also provides assessments to ensure patients are safe when they return home.
On 8 November, Mrs M left hospital. Mr L, an occupational therapist and a technical equipment instructor were waiting at her home when she returned. The occupational therapist completed their assessment and decided it was not safe for Mrs M to remain at home because she was still in pain and could not stand on her own.
The occupational therapist told Mr L that Mrs M could go into a ‘discharge to assess’ bed, which provides short-term care, rehabilitation and reablement to patients who are well enough to leave hospital, but not well enough to go home. ‘Discharge to assess’ beds are usually in a residential care home and fully funded for a maximum of four weeks. There were no beds available that day so for her safety Mrs M went back into hospital.
The next day, a Care Home could offer a bed to Mrs M and it was available immediately. The Council’s notes show the social worker tried to call Mr L to tell him but could not get through. As Mrs M had capacity to decide about her own care, professionals spoke to her and she consented to be discharged to the Care Home.
On 10 November, Mr L contacted the social worker and said he was happy for his mother to go to the Care Home. The Council’s notes are not detailed but do say the social worker explained discharge to assess funding.
The next day, the social worker posted Mrs M the Council’s factsheet ‘Financial Implications’. I have reviewed the factsheet and it does not include information about the funding for discharge to assess beds.
Mrs M left hospital and went to the Care Home on 11 November.
The Social Care Institute for Excellence explains “A lasting power of attorney (LPA) is a legal document which allows individuals to give people they trust the authority to manage their affairs if they lack capacity to make certain decisions for themselves in the future.” It adds “it can only be used when the donor has lost the mental capacity to make the relevant decision for themselves.” I have reviewed Mrs M’s records for November 2022 and there are no concerns expressed by professionals that she could not make her own decisions. Therefore, the Trust and Council were liaising with Mr L as Mrs M’s next of kin.
Mr L said the Council did not include him in the arrangements but the notes show he agreed to Mrs M going home on 8 November, he also consented to her moving to the Care Home on 10 November. Both of these took place before Mrs M moved anywhere. I cannot see what more the Trust or Council could have done to involve Mr L in the arrangements for Mrs M, and can find no indication of fault.
Mr L also complains communication was poor around when and where the discharge would be to. He also feels the Council did not explain the financial implications.
As I have explained above, there is evidence Mr L knew his mother was well enough for discharge, that she wanted to return home and he was present when the occupational therapist completed the assessment. He knew it was not safe for Mrs M to stay at home and so there was no choice for her other than to go back to hospital. When the bed at the care home became available, the social worker tried to call Mr L, but could not get through. Mr L called back the next day, so at most there was a one-day delay in him knowing where Mrs M was moving to, as she had already agreed to the move.
The Council’s notes show Mr L told the social worker on several occasions Mrs M had savings above the financial assessment threshold and he knew they would pay for her care. The issue is therefore whether the Council gave him enough information to know when this would start.
During its own investigation of the complaint, the Council accepted the social worker had not invited Mr L to the discharge to assess review meeting on 8 December 2022 and apologised for the oversight. It also agreed the social worker should have had more contact with Mr L while Mrs M was in the care home.
The notes show on 16 December the social worker telephoned Mr L: “spoke to Mr [L] again about the placement now being chargeable at full cost due to Mrs [M] having savings over the threshold.”
Mr L explained his priority was finding a care company who could care for Mrs M when she left the care home. He explains the Council only told him about the funding for the care home in one telephone conversation and sent one factsheet through the post.
Mr L said he had expected the Council to tell him when the funding ended. Mr L also said he asked the care home about the status of the funding, and it repeatedly told him it was still Council funded.
While I am happy the Council recognised this mistake, I do not feel it fully considered the impact of this on Mr L. He was not invited to the review meeting where it would have become clear to him Mrs M would need to start paying for her care soon. The social worker did speak to him eight days after the review meeting, but this was when Mrs M was already liable for the charges. This is fault.
The injustice to Mr L is uncertainty about when care costs would start to be accrued in the temporary care placement and when Mrs M would become responsible for paying. This injustice could have been avoided if the identified fault by the Council had not happened.
Discharge from care home to own home Mr L complains about how the Council handled Mrs M leaving the care home. Mrs M wanted to return home so Mr L arranged private care. Mr L believes there was unnecessary delays and before Mrs M could leave, the Council insisted on a ‘best interest’ meeting. Mr L explains this was very stressful for both him and Mrs M and caused unnecessary distress and confusion.
The Trust reviewed Mrs M’s arm break in early January 2023 and planning for her return home began.
The next contact from the social worker to Mr L was on 25 January. The notes show they tried to speak to Mr L to ask if he needed help arranging for Mrs M to return home. They tried again the next day and left a voicemail message. On 1 February, the social worker spoke to Mr L and he explained his mother was not strong enough to go home yet. He also told the social worker he had already arranged private care for Mrs M for when she was ready to go home.
The Council’s notes show the social worker tried to contact Mr L on 10, 15 and 22 February without success. On 23 February, they sent Mr L an email explaining due to the lack of contact and the fact Mrs M and Mr L both knew her future care would need to be self-funded, the Council were closing the case.
Later the same day, Mr L contacted a different social worker and said he would like support from the Council in Mrs M returning home. The social worker made a note of the call and asked the previously allocated social worker to contact him. On 8 March, Mr L called the Council again as he had not had a call back. The allocated social worker was again asked to call Mr L. The Council has not explained why there was a delay in contacting Mr L, but equally Mr L did not chase the Council.
On 10 March the social worker reviewed Mrs M’s file and contacted the Home First team to arrange a slot for her to move home. The social worker called Mr L on 13 March, she left a voicemail message to explain Mrs M had been allocated a Home First slot on 15 March. Later the same day, Mr L told the Council he was not available until 24 March, so the Council re-arranged for 24 March.
Mr L left a voice mail message for the social worker on 23 March to advise Mrs M had COVID-19. Due to the time the Council had not seen or spoken to Mrs M for, the social worker decided it would meet with her the same day to assess if she was well enough to go home and if this was still her wish. Although the Council would not be paying for her future care, it still had a duty of care to keep Mrs M safe. The assessor who met with Mrs M said she needed a capacity assessment because although she knew she wanted to go home, she seemed confused about what the implications of this would be.
Mr L contacted a social worker on 27 March to ask for a new Home First slot and he was advised this could not be booked until after a mental capacity assessment had taken place. Mr L called again the next day and was advised the same. Later the same day his allocated social worker called to discuss the assessment from 23 March and to find out more about how the private care company he found would support Mrs M.
A mental capacity assessment on 31 March found Mrs M did not have capacity.
Mr L spoke to the social worker on 4 April and said he was unhappy with the delays, did not understand why his mother could not return home now she was ready. He was also unhappy with the lack of communication about the capacity assessment and what was causing the delays.
Due to the difficulties between the parties involved in Mrs M’s care, the lack of clarity around her needs and the breakdown of relationship with staff at the care home, the Council decided a ‘best interest’ meeting was needed. A ‘best interest’ meeting is a multidisciplinary meeting that is arranged for a specific decision around a patients care when a person is deemed to lack the mental capacity to make that decision for themselves.
On 14 April, Mr L attended the ‘best interest’ meeting as well as social workers from the Council, a member of staff from the care home and the manager of the private care company. The details of Mrs M’s care were resolved and all agreed for Mrs M to return home at the first available Home First slot, this was booked for 18 April. Mrs M went home on 18 April and the assessment concluded it was safe for her to stay there.
There were delays from when Mrs M was ready to leave the care home to when she went home. I have reviewed the Council’s notes as well as the information provided by Mr L, and I can see delays were caused by both. The Council apologised at the time and in its complaint response of 4 September 2023, the Council accepted communication should have been better and apologised again.
The LGSCO ‘guidance on remedies’ explains we can consider any apology made before the complaint comes to the Ombudsmen. We can also consider whether we think this is enough to remedy the injustice. I am satisfied the Council has accepted its mistake and made a suitable apology to remedy the injustice to Mr L.
The ‘best interest’ meeting took eight days to arrange and while I can understand this would have been frustrating, the Ombudsmen would not expect the Council to have ignored the change in Mrs M’s capacity, or any discrepancies with her future care needs. The Council acted to keep Mrs M safe and the evidence shows the meeting did sort all the issues out at the same time.
Mr L said he found the situation stressful to deal with and it caused unnecessary distress and confusion. Delays were caused by the Council and Mr L, but I cannot see any evidence these were excessive. The Council has accepted it could have communicated more and has apologised for this. I am satisfied the identified injustice has been remedied.
Rehabilitation Mr L complains the Trust did not have a rehabilitation management plan in place after Mrs M left hospital so she could regain mobility in her broken arm.
I asked the Trust to explain what plan it had in place.
Mrs M was transferred to the outpatient fracture clinic when she left hospital, her first appointment was booked for 10 November. As the first Home First discharge was not successful, Mrs M was back in hospital on this date so the appointment was cancelled. A new appointment was booked for 25 November, but this was also cancelled as Mrs M was unable to attend.
Mrs M went to the outpatient clinic on 12 December and her next appointment was booked for 4 January 2023. Unfortunately, due to transport issues, this appointment was cancelled. Mrs M was seen on 18 January and was discharged from the clinic because the fracture had healed. As Mrs M was in a care home that had access to rehabilitation services, the Trust explained it could help her recover functions if needed.
The Trust discharged Mrs M from the outpatient clinic when her break healed. Mrs M was in a care home which had the means to help her and she could access the rehabilitation she needed through them. I have seen no evidence Mr L asked for help from the Trust and they didn’t provide it. Therefore, I find no fault with the Trust’s actions.
Agreed actions
The Ombudsmen made and the Council agreed to the following actions.
Within one month of the date of the final decision, the Council should: apologise to Mr L for the injustice identified in paragraph 32; pay Mr L £100 to reflect the frustration he experienced as a result.
Within three months of the date of the final decision, the Council should prepare a briefing note and send to all staff about the importance of inviting those involved to discharge to assess review meetings. The note should signpost staff to the relevant guidance and legislation and ensure all staff are aware of their own responsibilities and offer further training to any staff who need it.
The Council should provide the Ombudsmen with evidence it has complied with the agreed actions.
Final decision
I partly uphold this complaint. I found fault by the Council which caused an avoidable injustice to Mr L. I found no fault with the Trust. I close the investigation on the basis the agreed actions provide a suitable remedy.
Investigator's decision on behalf of the Ombudsman