Decision date: 22/10/19
Mr R and Ms S complained to the Council on behalf of Mrs T (Mr R’s mother), who was admitted to hospital in November 2017 after her GP raised concerns over her increasing shortness of breath. She suffered from several health conditions such as dementia, atrial fibration, chronic kidney disease and a heart valve condition. She was viewed to be at high risk of falling after several falls had been recorded in the previous year.
Mrs T was living in an extra care housing placement at the time of her admittance to hospital, and she had already been in hospital earlier in the year. The Council had been funding a care package of four visits a day which the family did not feel was adequate to prevent Mrs T from falling again. The family had started to pay for 24 hour care towards the end of October [but the report does not say whether they had asked the council to increase the package or not, and if so, what the council had said.]
An occupational therapist (OT) from the Hospital Trust assessed Mrs T the day after she was admitted to hospital and noted that she would need support when she was discharged. The Trust completed the appropriate hospital discharge ‘assessment notice’ but the Council claimed it had never received one. The OT tried to contact the allocated social worker numerous times to no avail, and it later transpired that the social worker was on sick leave.
Doctors assessed Mrs T as being healthy enough for them to discharge her from hospital and completed a form to notify the Council that it intended to discharge her on the 21st November. However, due to delays in the Council’s efforts to act on this information, plans for Mrs T’s post-hospital care were not started until a social worker came to the ward to assess her needs on 12th December.
The Social worker recommended that Mrs T go to a care home. However, the family wanted her to return to the extra care accommodation that she had been living in before the hospital admission. Mr R and Ms S said they would contribute to a 24 hour carer (the difference between the cost and the amount of Mrs T’s personal budget). Records show that the Council had said that it would provide a personal budget to pay for Mrs T’s care, but that this was the maximum amount it would offer.
2 days after this Mrs T had a fall in hospital, fracturing her pelvis. She then developed delirium and plans for her discharge were put on hold. She had a stroke on 1st January 2018 and died in hospital 10 days later.
Mr R and Ms S claimed that they had been told by hospital staff that the Council had unreasonably delayed Mrs T’s discharge and that the resulting prolonged stay in hospital had contributed towards her death.
On 7 and 12 December, not having properly reassessed her, the Council said if an assessment recommended a residential placement it would provide a personal budget to pay for the necessary care. It also said this personal budget would be the maximum amount it would offer for Mrs T’s care. It said, as such, if the family chose care which cost more the family would have to pay the difference. That was an arbitrary offer, without any underpinning through a proper re-assessment.
When the social worker recommended a care home, on 12 December, the family said they would make up the difference between the cost of a 24 hr care package and the amount of the Council’s maximum personal budget for Mrs T.
The Council began to make arrangements to facilitate this wish. The council advised the provider to carry out its own reassessment for Mrs T to return with a 24 hour carer. On receiving an email about the plan for Mrs T to have 24 hour care, the extra care housing provider replied with concerns and said it had previously accepted a live-in carer for Mrs T in the belief it would be a temporary arrangement and asked the Council why it had been decided she needed a 24-hour carer.
Then events overtook the process and Mrs T died shortly afterwards.
What was found
There was clear evidence that the Council was aware of Mrs T’s need for social care involvement in getting ready to leave hospital by the 20th November.
The Council could have assessed Mrs T’s needs when it received the discharge notice, but chose not to. A manager decided to wait for the social worker involved to return from sick leave and not to reallocate the case. It also claimed that the reason for not having immediately pursued a reassessment was that the family wanted to explore the option of Mrs T returning home. However, records show that Mr R had voiced this desire when the Council had first been contacted and this should have led to an earlier assessment.
The Council was found to have been unreasonably inflexible about funding options for Mrs T’s care, as well as having limited contact with the extra care housing provider about her needs. It seemed to focus on moving Mrs T to a residential home, rather than considering the suitability of her previous placement. These both contributed to the delay in her discharge.
The Trust could not discharge Mrs T until the Council had arranged the necessary care. The Ombudsman therefore found the Council at fault for the avoidable delays in progressing Mrs T’s discharge.
Mr R claimed that Mrs T had still been paying the contributions to the extra care housing whilst in hospital. From 1st December, Mrs T was unable to use a community care package due to fault on the Council’s behalf. The Ombudsman therefore found that this represented an injustice to Mrs T.
The Council agreed that it would:
- Provide a written apology to Mr R and Ms S for the avoidable delays and unnecessary frustration and distress caused to them and to Mrs T.
- Pay Mr R and Ms S £250 as tangible acknowledgement of its fault
- Establish if Mrs T had made any charging contributions to her care after December 1st and refund her estate the total amount.
- Arrange a review of the circumstances of the case and consider whether its policies are adequate and in line with the relevant legislation. If shortcomings are found then they should be addressed appropriately.
Points for the public, hospitals, councils, advocates and family members
This is an important report with regard to the attitude that the council appears to have taken to how much it would or would not spend on keeping a person at home.
Cost capping of homecare?
The guidance, paragraph 10.27, makes it plain that councils are not allowed to make arbitrary decisions.
There are two underlying public law reasons for this: public bodies making these kinds of decisions must take all relevant considerations into account, and they must not fetter their staff’s care planning professionalism and social work competencies by rigid rules.
The notion that all that will be paid for a person who is going to go home, is the cost of a care home, is an offence against both such principles:
- It assumes that there’s not a single person in the area whose needs could NOT be met appropriately in a care home, which is obviously impossible to justify.
- It ignores the consideration of the suitability of their existing accommodation for meeting their needs, overrides their human right to respect for their attachment to their home,
- It ignores the fact that if a council is not going to walk away when a person refuses a suitable care home placement, it is the council that is making the choice to go back and negotiate with the family as to meeting the shortfall, or spending a bit more public money on the basis of best value. In making that choice for its own reasons, reputational or on account of not having any vacancies available to its commissioners at the time, there is nothing that permits a council to ignore the real cost of a different kind of care, in an own home setting, and it can often be more than a care home would be.
Here, there were two factors to consider that were special and needed : there is a hint that the Extra Care Housing Provider would not allow a person to sleep on the premises/live in (if it really was intended that a person should live in, they would only ever have been a licensee?) even if money were no object.
That issue needed to be bottomed out earlier in the process: did the tenancy allow for that, or actually prohibit it?
Secondly, the family seemed willing to pay for a slice of the care package, which could well have brought the shortfall down to the equivalent cost of a care home.
It is absolutely ENCOURAGED by the practice in the sector to draw in all assets and strengths of this nature before deciding how much unmet need there really is, and being sure it can be reliably met is the ONLY way that a council can lawfully manage to avoid paying more for care than it would otherwise like to believe was necessary.
In real life, of course, the price of care homes and home care and live in care may have shot up due to scarcity in the labour market and no provider actually being willing to stick to the price first agreed, in the current market; councils are finding that they are having to VARY agreements in order to discharge their statutory duties.
The bottom line is that if a council purchases rather than provides directly through its own managed care homes, however, vagaries of the market is what they have to deal with: the duty is a duty, whatever happens in that market.
Hospital discharge is now governed by legislation in the Care Act, interestingly. It’s Schedule 3 and a sset of regulations called the Care and Support (Discharge of Hospital Patients) Regulations 2014.
We hope it’s not unfair to say that nursing and ward staff will not have been trained in looking at legislation or regulations; they expect processes to come from their management, and these days, that sort of policy is called Discharge to Assess – and is part and parcel of getting the patient’s status as a continuing nhs healthcare or a local authority or a self funding person, correct, before or shortly after the person no longer needs to be in an acute hospital bed.
As part of the discharge process hospitals need to think about whether it might be unsafe to discharge a patient without measures in place to meet their care and support needs. If it thinks it might be unsafe it must tell the relevant council of that patient, and it should talk to the patient about this. The hospital then needs to consult with the council before deciding what it will do to make sure discharge is safe. (The Care Act 2014, Schedule 3.
What this LGO report leaves out of account however is the reference to the NHS’s backstop role as hospital discharge scrutineers: Discharge Co-ordinators need to take this role seriously because otherwise they have permitted unsafe discharge (not in this case, as the lady died before she was discharged, but in ordinary circumstances, that is).
In practical terms, a hospital must first give an ‘assessment notice’ to the local council when it considers it is unlikely to be safe to discharge the patient unless arrangements are made to meet their needs for care and support. (Care Act 2014 Schedule 3 paragraph 1).
When the council gets an ‘assessment notice’ from a hospital its duty to assess the person’s needs under the Care Act (s9) is triggered.
The council should complete the assessment within two days of receiving the ‘assessment notice’. (Care and Support (Discharge of Hospital Patients) Regulations 2014, regulation 8).
The council must inform the NHS of the outcome of its assessment and decisions. (Care and Support Statutory Guidance, Annex G, paragraph 17).
After issuing an ‘assessment notice’ hospitals may then issue a ‘discharge notice’ giving at least one day’s notice of the required discharge. (Care Act 2014, Schedule 3 paragraph 2)
If, after issuing a ‘discharge notice’, the patient cannot be discharged solely because the council has not carried out the relevant assessments or made the necessary care arrangements, then the council is liable to make a daily payment to the NHS at a set rate. This is not mandatory, it is just that the NHS may require the council to pay the specified amount. (Care Act 2014, Schedule 3 paragraph 4).
The Regulations on hospital discharge say that a hospital can and must in fact withdraw an assessment notice or a discharge notice, when it does not think it safe for the person to leave.
We find this fascinating because on the basis of the words used, this duty in fact requires a judgment of some kind as to the efficacy and adequacy of the arrangements that have been made by a liable council.
That is why we say that ultimately the NHS is the decision-maker as to the appropriateness of the discharge arrangements, and if they were prepared to step up to that responsibility, it would be a public law decision that would involve having it OUT with the local council, no doubt privately; but it would also lead to much safer discharges and less opportunity for the kind of arbitrariness that one can discern in the attitude of the council above.
The Guidance says none of that however. That needs to change, we think.
Assessment notice: withdrawal
4. A notice withdrawing an assessment notice must be given where—
(b) the NHS body considers that the patient needs NHS continuing health care;
(c) the NHS body, having received the information specified in paragraph 3(1)(d) of Schedule 3 (how local authority plans to meet needs), still considers that it is unlikely to be safe to discharge the patient from hospital unless further arrangements are put in place for meeting the patient’s needs for care and support or (where applicable) the patient’s carer’s needs for support;
[That is, it must withdraw an assessment notice where the council’s plan to meet needs is not sufficient in the view of the NHS body.]
If there is no assessment notice, there cannot be a discharge notice.
Discharge notice: withdrawal
7.—(1) Subject to paragraph (2), a notice withdrawing a discharge notice must be given where the NHS body responsible for the patient considers that it is no longer likely to be safe to discharge the patient on the proposed discharge date.
(2) Paragraph (1) does not apply where the only reason that the NHS body considers that it is no longer likely to be safe to discharge the patient on the proposed discharge date is that the relevant authority has—
(a) not discharged its duty to carry out a needs assessment or (where applicable) a carer’s assessment in relation to the patient; or
(b) not put in place arrangements for meeting some or all of those needs that it proposes to meet under sections 18 to 20 in the case of the patient or (where applicable) the patient’s carer.
[that is, where it has a concern that the arrangements that the council has decided upon as required or due, have not been implemented, then it need not withdraw the notice, because non-implementation is not the NHS’s fault. So if the concern is that the arrangements have been made and are ready, but aren’t enough, it must also withdraw the discharge notice.]
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The full Local Government Ombudsman report on the actions of Haringey Council can be found here: