Decision Date: 15 October 2023
Please note that there was also a linked complaint made to NHS Hampshire and Isle of Wight ICB, which was not upheld.
Mr F complained about delays in arrangements to discharge his daughter, Miss D, from hospital, after she was detained under the Mental Health Act 1983 (MHA) in August 2021.
He submitted that there had been unnecessary and unreasonable delays by Hampshire County Council (the Council) and NHS Hampshire and Isle of Wight Integrated Care Board (the ICB), both individually and in their joint working arrangements, in handling his daughter’s discharge plans.
Mr F also complained that:
- the Council and ICB failed to share information with a potential accommodation provider about the possible fire risk posed by Miss D, which he said further delayed her discharge and led to unnecessary distress and avoidable costs;
- the delays in his daughter’s discharge from hospital were harmful to her mental health as the hospital in-patient environment was not suited to her needs;
- He had also experienced significant distress.
Mr F wanted the organisations to:
- arrange Miss D’s discharge from hospital without further delays;
- acknowledge and apologise for their failings and for the impact of the delayed discharge on him and his daughter;
- improve their processes for handling complex discharges, to avoid delays and poor co-ordination between services.
He also considered a financial payment might be appropriate to recognise the impact on him and his daughter.
What happened
Miss D was aged 18-20 during the period of care Mr F complained about. She has several neurodevelopmental and mental health conditions and a moderate learning disability. Since early secondary school age Miss D lived in accommodation arranged by the Council, under s.20 of the Children Act 1989, due to her challenging behaviour. She had also been both an informal and detained psychiatric in-patient.
In August 2021, Miss D was living in a supported living placement and had a 24/7 care and support package from a specialist learning disability care provider. In late August, she was admitted to hospital under s2 MHA due to a mental health crisis. She was subsequently detained under s3 of the Act for around seven months. When the s3 detention ended, Miss D remained in hospital under a Deprivation of Liberty Safeguards authorisation (DoLS), as the Council and ICB were still trying to find a suitable community placement for her to be discharged to. She was still in hospital under the DoLS when Mr F complained to the Ombudsman in June 2022 and again in February 2023.
During the period complained about, the Court of Protection (CoP) had been considering Miss D’s capacity to make specific decisions, her best interests, DoLS and arrangements for her care and support in the community. She was assessed as lacking capacity to make decisions about her care, support and accommodation arrangements. This meant the CoP had to authorise the framework in which her care and support needs would be met after discharge from hospital.
The LGSCO was not able to investigate a complaint about what happened in court. However, some of the issues Mr F complained about fell outside what the CoP was deciding, including inadequate care co-ordination by the Council and the ICB, avoidable delays in discharge planning, and a failure to share information about potential fire risk.
From the start of Miss D’s time in hospital in August 2021, regular discussions took place about discharge planning and in early September 2021, the Council and the ICB agreed that Miss D could not be discharged back to her previous community placement [we think this may have in fact been a tenancy, albeit one that Miss D was signposted to, and if so should more accurately be described as such] with her existing care package, as the care provider could no longer meet her needs. The Council and the ICB looked at options for Miss D to be discharged from hospital, including a short-term community placement whilst a more appropriate long-term option was found, and being discharged straight to a long-term placement.
The Council and ICB contacted a number of placements and care providers about Miss D, including the landlord of the property she lived in when she went into hospital in August 2021. Miss D had rented the house from a charity housing organisation (Landlord C) and had a tenancy agreement with them.
In December 2021, the Council and ICB identified a suitable care provider for Miss D, and the care provider started doing in-reach work with Miss D in hospital.
In April 2022, Landlord C confirmed it had a suitable property for Miss D and in June it provided her with tenancy details for the new property. The Council and the ICB agreed funding for Miss D’s care package following discharge. During Summer 2022, the Council and ICB continued to work on discharge arrangements, including updating Miss D’s care plans, liaising with the CoP, work relating to assessments of Miss D’s best interests and her capacity, and work to ensure the care provider, and its staff, were appropriately trained and ready for the community placement to start.
At a discharge planning meeting in September, Landlord C asked to see Miss D’s care plans so it could support the proposed tenancy and agree a moving-in date. The Council said the care plans would need to be agreed and sent to the CoP before they could be shared with Landlord C.
In early November 2022, Landlord C said it could not go ahead with Miss D’s planned tenancy because it had become aware of previous incidents where Miss D had started fires, saying it did not have the insurance to cover her due to this, so it had to serve notice on the tenancy [it may be that, in reality, no tenancy could have been signed by this point].
The Council and the ICB then started a new placement search, looking at interim and long-term options. In March 2023 the Council and the ICB jointly agreed to pursue a long-term accommodation option for Miss D. They also agreed to work with a care provider that might enable Miss D to be discharged from hospital on an interim basis. There was no firm discharge date set at the time of the LGSCO investigation. Miss D was still in hospital and had moved to the Psychiatric Intensive Care Unit (PICU) in April 2023 as staff could not manage her needs on the main ward.
Mr F said he felt he and his daughter should be financially compensated to recognise the harm and distress caused to them by the delays in discharge. He also said his daughter had incurred costs in installing broadband and moving her possessions into the property with Landlord C, as the tenancy had been expected to go ahead. He said Miss D’s income has also been affected as she is not eligible to receive her Personal Independence Payment (PIP) whilst in hospital.
What was found
The Council did not share the information about the possible fire risk with the potential landlord. This was fault which was likely to have caused some avoidable delay to Miss D’s discharge from hospital, which has caused her and her father frustration and distress, and led to Miss D incurring some unnecessary costs. The LGSCO therefore upheld this part of Mr F’s complaint.
Other than the specific issue of fire risk, the LGSCO did not find fault by the Council or the ICB in their plans to arrange Miss D’s discharge from hospital, stating that “I have not seen anything that amounts to fault in care co-ordination. The evidence I have seen shows key individuals and teams working together to deliver support planning and to progress these complex discharge arrangements.”
The Council agreed to provide Miss D and Mr F with a financial remedy and to take action to prevent similar problems happening in future, and the LGSCO was satisfied that these actions represented a suitable and proportionate remedy for Miss D and Mr F.
The Council agreed to take the following actions within one month of the decision:
- pay Miss D £500, as a symbolic payment to recognise her avoidable distress and frustration at the additional delay to her discharge plans;
- pay Mr F £350, as a symbolic payment to recognise his avoidable distress and frustration at the additional delay to his daughter’s discharge plans;
- find out how much Miss D spent on the potential tenancy with Landlord C, and reimburse her for those avoidable expenses; and
- pay Miss D a sum equivalent to six months of her Personal Independence Payment, to recognise the additional delay to her discharge plans due to the Council’s fault about fire risk.
And the following actions within three months:
- provide a detailed update to Mr F and the LGSCO about the actions it has taken about incidents and fire risks and how it has assured itself these actions are effective;
- provide supporting evidence of the actions taken.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
Timely and efficient discharge from hospital is essential to promote patient recovery and reduce stays in unnecessarily restrictive settings, which often have a detrimental impact on a patient’s well-being. If a discharge is delayed for whatever reason, however, clear communication with the individual and their families about the fact that there is a delay and the reason for it is essential.
In December 2021, the Council and the ICB had identified a suitable care provider, and in April 2022, Landlord C had identified a suitable property for Miss D’s discharge. In September, the provider requested a copy of the care plan, and it took until November 2022 for the provider to become aware of Miss D’s history of fire-setting. This means at least six months (and arguably, longer) was unnecessarily wasted, and Miss D remained in hospital for all that time.
The fact that Miss D was latterly moved to a PICU in April 2023, because she was no longer able to be cared for on the main ward suggests her mental health had deteriorated significantly in this time, and at the time of the complaint had still not been discharged from hospital.
We note that, in the LGSCO’s report, the Council said that the care plans would need to be agreed and sent to the CoP before they could be shared with Landlord C, and this was given as a reason as to why Landlord C was not made aware of the fire-setting. We would suggest that as the LANDLORD and not the care provider, Landlord C didn’t need to see the care plan as this is personal information and would fall under the GDPR. The Council would not be allowed to disclose this information without the consent of the individual, if the individual has capacity (although that point would be moot in this case). No doubt it was disclosed to the care provider, which is lawful and essential, but the care provider could have told the landlord. We feel the LGSCO may have erred in its legal analysis of this point.
It is also notable that whilst the risk of fire-setting was the issue which led to this matter, there was no mention of risk assessment nor risk mitigation measures – a risk management plan arguably could and should have been shared with Landlord C, although the terms of the landlord’s insurance may have meant this would have made no material difference as regards the tenancy in question. What is also interesting, is that the report states that Miss D rented a property from Landlord C before she was admitted to hospital, and so it is rather puzzling that they were not aware of Miss D’s history of fire-setting!
Regarding PIP, Miss D’s underlying entitlement to this would have continued whilst in hospital, and thus her payments would resume once she left hospital, providing all the conditions were still met. Whilst it would perhaps be churlish for us to take issue with her being compensated by the Council for the PIP she missed out on, given that her hospital stay was extended unnecessarily due to their failings, it could be argued that PIP is intended to pay for the sorts of needs which would be met while in hospital, and therefore this outcome was incorrect.
The full Local Government Ombudsman report of Hampshire County Council’s actions can be found here
https://www.lgo.org.uk/decisions/adult-care-services/other/22-015-099