Decision Date: 07 September 2022
In September 2020, Mr C was admitted to Warrington and Halton Hospitals NHS Foundation Trust with a fractured collarbone, following a fall at home. His daughter, Mrs B, claimed that a full and comprehensive assessment was not completed to facilitate his discharge home and that there were unsatisfactory delays by Warrington Council in arranging a care package.
Mr C, who already had left-sided weakness following a previous stroke, was admitted to hospital with a fractured left shoulder. He was reviewed by the Rapid Response Team (RRT) three times during his hospital admission, over a two-day period and, at the third review, was assessed as medically fit for discharge and discharged home the next day on Pathway 0. The (Covid-specific) Hospital Discharge Service: Policy and Operating Model guidance (NHSE, 2021) defined Pathway 0 as ‘’simple discharge, no formal input from health or social care needed once home.’’
Assessments undertaken by the RRT noted that Mr C was supported by his two daughters, and that there was equipment in place at home, including a toilet frame and riser-recliner chair. They also indicated a decline in pain levels over the three assessments and an increase in mobility and function. A suggestion was made to Mr B, following the second review, that she purchase urine bottles for Mr C, and that a commode for overnight use could be provided on discharge; however, at the third review it was noted that Mr C was managing to use the toilet independently and this was communicated to Mrs B.
Following his return home on 3 September, Mrs B contacted Warrington Council requesting a care needs assessment citing Mr C’s inability to get changed on his own, remove his sling to facilitate washing, or reach the bathroom independently. It was also reported that Mr C was in pain. A duty social worker contacted Mrs B the same day and advised that a social worker would be allocated to assess Mr C’s needs but there was no mention of a time frame for this.
Mrs B contacted the Council again on 9 September and requested a care needs assessment, citing the reasons that Mr C was unable to get out of bed, wash, or make meals and that she and her sister were finding it increasingly difficult to provide care due to other family and work commitments. The case had not been allocated at that stage and a more urgent allocation was requested by Mrs B. This allocation was made on 10 September.
On 11 September, a duty social worker assessed Mr C at home and discussed options including domiciliary and respite care. It was noted that Mr C had previously had a care package of one tea-time call a day to support him with meal preparation which had been arranged through the Council but paid for by Mr C. This had been paused in April 2020, at the request of the family, due to concerns about the COVID-19 risk.
At this most recent assessment, Mrs B queried a respite placement but was advised that due to the COVID-19 rules in place at the time, this would involve a 14-day isolation period and likely restrictions on visits. All parties agreed that a domiciliary package would be the preferred option and care planning identified that a domiciliary package of care consisting of two calls per day would meet Mr C’s needs.
On 15 September, Mrs B contacted the Council again to enquire about the care package and was informed that this had been requested to start within 48 hours of the assessment. A care package was confirmed that day and started six days later. This delay was due to availability of carers within the provider agency.
The care package was initially for two daily calls, and this was reduced over a period of a few weeks as Mr C improved and one tea-time call remained in place.
What was found
The Trust – The LGSCO found that the assessments completed whilst Mr C was in hospital were in line with the guidance and that he was properly assessed. This was not fault. However, they were unclear on how the Trust was satisfied that Mr C would be able to care for himself at home without support, considering his previous care package and without teaching him how to manage his sling when washing and dressing. They further found that the Trust failed to follow up on conversations with Mrs B about the purchasing of urine bottles or the provision of a commode, which if in place may have prevented the distress and discomfort experienced by Mr C at not being able to access the toilet on the night he was discharged. This was fault.
It was determined that Mr C’s pain was adequately assessed whilst he was in hospital and that upon discharge his pain was under control via paracetamol and that his increased pain, once at home, could not have been predicted. However, the LGSCO found no evidence that Mr C was provided information about medication, including who to contact post-discharge, in breach of the Trust’s discharge policy and the Hospital Discharge Service: Discharge and Operating Model.
The Trust accepted, following Mrs B’s complaint, that it should have provided contact details for the adult social care team should Mr C need them once he was home. The LGSCO could not state whether Mr C should have been discharged under Pathway 1 but acknowledged the potential difference in charging policy for social care had he been so categorised (eg funding available for either free interim NHS care, or reablement for up to six weeks) as opposed to the means-tested support from the Council, and found that the Trust’s failure to provide information on this added to the uncertainty about this.
The Council – The Council was not involved during Mr C’s time in hospital as he was discharged under Pathway 0. However, Mrs B contacted them requesting rehabilitation on 3 September. This was refused as Mr C was not eligible whilst his arm was still in a cast. Following Mrs B’s complaint, the Council accepted it should have advised Mr C that once his sling was removed, he could have been reassessed to establish whether rehabilitation was appropriate. The Council apologised and took steps to prevent recurrence by sharing learning with staff. The LGSCO found this to be a reasonable response to the complaint.
The Council provided details to the LGSCO about the time taken to arrange Mr C’s care package, including that Mrs B contacted them on a Thursday and its next allocations meeting was not until the following Thursday, at which time the request for care for Mr C was presented. The LGSCO was satisfied that this was within appropriate timescales.
The LGSCO found that the Council did not unduly delay Mr C’s needs being met and that the delay in availability of the care provision starting, was beyond the Council’s control and that care providers were facing challenges in taking on and starting new packages of care due to a reduction in staff numbers resulting from the COVID-19 pandemic. This was not fault.
Whilst recognising the challenges that COVID-19 presented in arranging a care package, the LGSCO found fault with the Council’s communication with Mrs B in failing to advise her of the likely delays, causing her worry and uncertainty.
The LGSCO recommended that within one month the Trust:
- Apologise to Mr C and Mrs B for lack of information provided upon discharge, and for the impact of this
- Pay Mr C and Mrs B £250 each in recognition of the distress caused, and
- Take steps, within three months, to review policies and ensure staff are aware of what information they must provide to patients and their families/carers on discharge from hospital and provide evidence of this to the Ombudsman.
The LGSCO further recommended that the Council:
- Apologise to Mrs B for the lack of communication in arranging a care package for Mr C, and for the impact of this
- Pay Mrs B £250 in recognition of the distress and uncertainty this caused.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public.
The crux of this complaint stems from a lack of adequate communication on the part of the Trust and the Council. Whilst NHS taking over hospital discharge was a daily occurrence for those working in the system, during Covid (and since, whenever the government has thought fit to provide a further payment during beds crises) for those experiencing this, and the lack of information as to who is responsible for what, it must be frightening and frustrating, compounded by the unknown extra risks, in the era of COVID-19. The LGSCO rightly found fault in the Trust’s failure to provide adequate information to Mr C and the Council for failing to communicate timescales to Mrs B.
No fault was found with the time taken for the Council to arrange the care package, as it was ‘understood’ that there were significant challenges during the COVID-19 pandemic in reductions of available staff for both the Council and domiciliary agencies. The law is that a duty is a duty, and must be discharged within a time that is not unconscionable, but the LGSCO does not have the power to make findings of legal precedent. However, the LGSCO’s Guide to Good Administrative Practice during COVID-19 stated that timescales should be made clear to service users, and staff, and had communication been to a standard that is expected, there, the complaint could likely have been avoided.
Whilst the LGSCO found no fault in the timescale for Mr C’s allocation to a worker, stating ‘the council presented his case at the first available allocations meeting’, we would have thought that it is obvious that a weekly allocations meeting doesn’t allow for consideration of urgent cases and that a ‘one-size fits all’ system negates the duty to consider individual needs, so could not be said to be good administration.
Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. We agree that a care needs assessment was carried out therefore the Council met their statutory duties, however, section 10.84 of the Care and Support Statutory Guidance says “While there is no defined timescale for the completion of the care and support planning process, the plan should be completed in a timely fashion, proportionate to the needs to be met…..The planning process should not unduly delay needs being met.” The same must be said for commissioning difficulties.
Considering that Mr C had needs with potential for reablement, this delay could have resulted in further loss of condition and an unnecessary reliance on ongoing social care support. We feel that the LGSCO could have made recommendations for a more flexible allocation system which would have reduced both delays and distress. Whilst the LGSCO could not make any recommendations on the chosen discharge pathway it is worth noting that a Pathway 1 discharge would have not only offered a funding stream for the short-term intervention but triggered the Council’s own Rapid Response or Reablement service. Timely intervention can reduce the risk of deconditioning and either defer or avoid the need for ongoing services.
We feel that the Pathway 0 discharge assessment was inaccurate and inappropriate, given that it equates in the NHSE guidance to: ‘’simple discharge, no formal input from health or social care needed once home’’. The fact that a person is soon found eligible for social care once at home indicates at least the possibility of a public law error in discharge planning by the Trust.
An interesting question, from our perspective, as legal advisers, is to ponder to what extent the clinical qualifications of those concerned in NHS-led hospital discharge would be such as to make an Ombudsman’s investigator potentially even more reluctant to find that the process itself was maladministrative. We think that the decision to make Discharge to Assess into national guidance for hospital discharge since Health and Councils’ social work services integrated more closely under the 2022 Health and Care Act, may have been motivated by the thought that that would achieve a further small constraint to the risk of judicial review. That is, removing Care Act assessment from the hospital setting and turning it over to the NHS for a simple 4 week expectation of an interim step down bed or intermediate care may not just have been a policy designed simply in order to speed up bed management since Covid backlogs arose….
If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.The full Local Government Ombudsman report on the actions of Warrington Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/charging/21-005-829