London Borough of Hackney at fault for failing to provide an enhanced care package after a person’s discharge from hospital

Decision Date: 21 July 2021

What Happened

Mrs X complained on behalf of her mother, Mrs Y. 

Mrs Y had been admitted to hospital from her home where she had had a package of care in place and was being visited weekly by her daughter Mrs X. On the 13th February 2020, whilst in hospital, a planning meeting with Mrs Y and her family took place with a social worker, occupational therapist and NHS staff. Social services, in the form of a conversation. was prepared to consider supporting a return home with a package of care there, but Mrs Y expressed concern about being alone at night and Mrs X and family expressed their preferred option for Mrs Y was to be discharged to a residential home. The family had found one that they felt would be right for Mrs Y which currently had a vacancy. No assessment of needs was done.

On the 20th February the Council informed the family that Mrs X would not be offered care funded in a residential home as she did not need 24 hour care. The Care Act assessment was carried out on the 25th February. 

Between the 25 Feb and 23 March, actions were recorded that suggested confusion about what was planned: firstly a resubmission of an application to fund a care home, then a care plan for going home with an increased package of care waiting for funding approval and then a delay with getting the package together.  

Mrs Y’s discharge was further delayed due to her developing pneumonia. 

Mrs Y was discharged home on the 23rd March with a package of care consisting of three visits per day which was then increased to four visits per day on the 25th March. 

Between the 23rd and the 31st March, Mrs Y had a number of falls, some requiring the attendance of paramedics but no admission to hospital; however, on the 29th March the paramedics said they felt she needed to go to hospital but it was too risky due to Covid 19. 

Mrs Y was contacted on the 24th March by the hospital for a post-discharge review, but they could not get hold of her. Her family reported to the hospital that Mrs Y had confusion; this was attributed to disorientation following significant time in hospital. A doctor visited Mrs Y on the 25th and 26th March. Relatives stayed over and reported helping her 5 times in the night.

On the 27th March the Council arranged for a placement in a residential home for Mrs Y but this was delayed due to funding and transport issues and additional approval issues, and on the 30th March the Council agreed to arrange overnight support at the family’s request [unclear from the report as to whether it happened as planned].

Mrs Y passed away on the 31st March. 

Mrs X complained to the Council about Mrs Y’s return home from hospital. The Council replied stating:

  • Mrs Y’s return home was in line with the COVID-19 Hospital Discharge Service Requirements;
  • Mrs Y was happy to return home when discharged;
  • Mrs Y had made good progress with transfers while in hospital so her falls risk had reduced;
  • it accepted there had been avoidable delays in moving Mrs Y to the care home as the problems which caused the delay could have been better anticipated;
  • it would remind the Integrated Discharge Team of the need to respond quickly to requests for additional care.

What was found

The LGO considered that the Council delayed in assessing Mrs Y’s needs in February. The discharge meeting was held on the 13th, yet the Council did not assess her until the 25th. It also stated that Mrs Y did not require 24-hour care before conducting the assessment. This was fault. 

The Council stated that Mrs Y’s discharge from hospital was in line with the COVID-19 Hospital Discharge Service Requirements. However, Mrs Y returned home with the same package of care that she had had before she went into hospital. The Council’s failure to put in place an enhanced package of care, and to consider including overnight care, was fault.

The Council’s delay in moving Mrs Y to a care home in March, and delay in response to the request for more support was also fault. 

The LGO recommended that the Council apologise to Mrs X for the failure to send Mrs Y home with an enhanced care package, and pay her £400. 

Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public.

The Hospital Discharge Guidance for Covid was introduced on 19 March 2020, at which point the NHS became responsible for it, with full Care Act assessment deferred to outside hospital settings. Funding was available from the NHS for any packages of care that anyone discharged from hospital needed. The government guidance failed to identify whether whatever was done by councils was to be done by way of partnership arrangements with the NHS, ie delegated authority to commission what was needed with NHS money, or still to be done under the Care Act which was to be suspended, at the end of March (except that it was only to be treated as suspended if a council adopted Easements).

Here are some of the edicts from the Guidance when Mrs Y needed clarity:

  • The Government has agreed the NHS will fully fund the cost of new or extended out-of-hospital health and social care support packages, referred to in this guidance. 
  • This applies for people being discharged from hospital or who would otherwise be admitted into it, for a limited time, to enable quick and safe discharge and more generally reduce pressure on acute services.
  • Discharge requires teamwork across many people and organisations and the funding and eligibility blockages that currently exist cannot remain in place during the COVID19 emergency period. Therefore, a discharge to assess model will be introduced across England.
  • There needs to be clear accountability and escalation mechanisms at each stage of the discharge to assess process in each locality
  • Work together and pool staffing to ensure the best use of resources and prioritisation in relation to patients being discharged, respecting appropriate local commissioning routes. [we think this was a nod to needing authority to sign off NHS money – LAs could only do that through a s75 agreement]. 
  • During this period, funding will be made available for all patients being discharged and local authorities are enabled by the Care Act (Section 19) to meet urgent needs where they have not completed an assessment and regardless of the person’s ordinary residence. [This, we think is a nod to the possibility that not all councils would be adopting the easements, so would still be working under the Care Act albeit assessing after hospital discharge. But if the NHS was paying for all, and nobody could stay in hospital a second longer than was necessary, what is it exactly that a council would be ‘doing’ at this point of the pathway anyway?]
  • Take the lead contracting responsibilities for expanding the capacity in domiciliary care, care homes and reablement services in the local area paid for from the NHS COVID-19 budget. [This suggests that the NHS may well have been paying, but councils were supposed to be contracting. It may indicate that the Care Act was being regarded by the guidance writers as suspended because of the imminent Coronavirus suspension legislation. It’s simply impossible to tell, and the investigator here, probed NONE of what the council thought was going on, in legal terms, as far as we can tell.]
  • Redeploy social work staff from the hospital setting to community settings to support discharged patients. [That seems to be a clear acknowledgement that ASSESSMENT would not be going on in hospitals, because the social work workforce needed to become liaison staff for the NHS funders in the community regarding the need to buy more or less for patients discharged home or to a care home…]. 
  • Suspend need for funding panels for hospital discharge during the level 4 incident, with additional funding available to local authorities to cover any increased costs during this period.

This last edict seems to have been totally ignored by Hackney but there is no mention of this possibility in the report. We find that very disappointing.

Delay is something that comes up a lot in complaints. Whether there is fault inherent in a delay in and of itself is a case-by-case decision, depending on what would have been a reasonable timeframe for a duty to be discharged. 

A two-week delay on an assessment in some circumstances would not be a problem. 

However, as the COVID-19 Hospital Discharge Service Requirements made clear, discharge from hospital must happen as soon as possible. Regardless of what happened before 19 March, the council was already messing the family around and indicating its likely decision before the assessment. We think that the Investigator needed to say when assessment should have been done, once 19 March came and went, and Mrs Y was still in hospital, but given the Guidance, probably really struggled to find any clarity in it.

The further delay in arranging additional care was also fault because of the urgency of the situation, and it does seem clear that the Guidance expected rapid response reactions from those working with people who had been sent home. 

This period of time was extremely difficult. During the period relating to this complaint, Councils and hospitals had to adapt to an entirely new way of working as the COVID-19 lockdown was put in place. However, the fundamental principle of following a rational, lawful process would have helped the Council to pick its way through this pressured situation without fault.  

It is important that, even in extraordinary circumstances, we do not lose sight of the rights that the rule of law ensures. The result of not upholding the law is injustice that leads to distress, as noted by the Ombudsman in this matter, albeit not probed deeply enough, in our view.

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The full Local Government Ombudsman report of Buckinghamshire County Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/covid-19/20-007-613

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