Decision Date: 16 Sep 2024
Summary
The Council failed to complete an assessment in the allocated time which led to a man being left in a Discharge to Assess placement that was unsuitable for his needs. This meant that as he was, by the time the 4 week D2A period of free care had ended, an immediate self-funder, he incurred extra charges for being kept safe, whilst waiting for a vacancy in a home into which he could move and be cared for more cost-effectively.
What happened
Mr X’s father went into hospital in November 2023 after he became confused.
He had various assessments at the hospital. Everyone agreed that a short stay in a care home would enable a view to be taken as to whether the man’s state of confusion would subside. The hospital and Council told Mr X’s sister that the Council would do another assessment from there.
The Council explained that Mr X’s father would have a ‘Discharge to Assess’ bed which would be free of charge whilst he was awaiting a full assessment – which would be done in not longer than four weeks.
Mr X’s father moved into a care home on 2 December 2023. The planned mid-December assessment did not happen due to increased pressures and staffing issues.
The care home told the Council in late December that Mr X’s father had managed to get out of the building. It asked the Council to authorise one-to-one staffing to allow it to better safeguard Mr X’s father, which the Council agreed. It continued to fund the placement well beyond the four weeks of discharge to assess funding.
In late January the Council discussed Mr X’s father’s needs with his family and the notes from the meeting say it was agreed that Mr X’s father needed one-to-one care in his present setting.
It was mentioned that a home formally registered for Elderly Mentally Infirm residents might remove the need for one-to-one care.
The notes from the meeting on 23rd January said Mr X told the Council his father would have to fund his care himself as he had a property to sell and savings. The Council told Mr X his father’s placement would be chargeable from the next day. The Council also told Mr X that as his father would be ‘self-funding’ his care, the family could also seek an EMI placement directly.
The Council approved a placement in an EMI registered residential care home soon afterwards, and the Council advised the care home that Mr X’s father would now be responsible for the fees for his care in the care home where he was living, as of 2nd February 2024 which was when the assessment had finally been completed and residential EMI care approved.
Mr X later received an invoice for £21,200 requesting a month’s fees in advance from the care home. This was made up of a weekly cost of £5,300.
Both the Council and Mr X’s family looked for a suitable setting and Mr X’s father moved to a new placement on 19 February 2024.
Mr X’s father was charged for the period of 2 February 2024 to 19 February 2024 at that very high weekly rate. Mr X complained.
What was found
The ombudsman did not find anything about the initial discharge to the Discharge to Assess bed, to raise any flags as to inappropriateness.
The investigator did hold, however, that no clarity had been given to the family as to the likely level of fees, nor to the vacancy situation in the area.
Whilst it was true that the assessment was not completed within four weeks of Mr X’s father moving to the care home, from the hospital, the Council extended the funding for Mr X’s father until the assessment was complete, which was in fact the 2nd February, rather than the end of December or early January.
Had the assessment been completed sooner, then it was probable that Mr X’s father would have been liable for the charges sooner, the LGSCO thought, but that the family would also have started looking for alternatives, sooner. In fact, vacancies might not have been able to be found, so the Investigator could not assume that the high charges could actually have been avoided.
This delay was fault, for which the Council was instructed to provide a symbolic payment of £500 along with its apology.
It also undertook to remind staff in writing of the importance of providing full information about the likely costs of care.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
That initial hospital discharge decision-making does not seem to have been a s18 Care Act needs and care plan by the Council but its derivation and basis is unclear in the report.
The report is very sparse on the facts, but it does mention that the care home assessed itself to be able to meet the needs; and the investigator does not appear to have ascertained on what basis that decision had been able to be made: a hospital based checklist for screening for CHC, or a nursing needs assessment that had suggested residential care would be enough, for instance, because of the absence of registered nurse nursing needs?
If the Council made the placement, in terms of contracting for it, it was either doing so under the Care Act or as lead commissioner for an integrated post-hospital discharge strategy based on cost-sharing; or on behalf of the NHS, for instance by way of step down or intermediate care or a Discharge to Assess bed after a checklist. Hospital discharge policy obscures who is doing what, and in what context, these days, in our experience.
In our view, understanding the basis of the arrangements is critically important to being able to analyse whether what was done was lawful or not. A Discharge to Assess (‘D2A’) bed can imply that the NHS has not yet decided that it owes no further duties to the individual given a positive CHC checklist, for example. If that was the case for this man, then it should have been the NHS paying extra for the additional care needed, but that could mean that a Checklist for CHC had become the next process owed, rather than assumption that the 4 weeks of NHS funding was automatically over.
However, a D2A bed can also just mean that a person is being allowed to stabilise before any assessment is done and in that scenario it is fair to call that reablement or intermediate care. Both the NHS and the Council have power to contract and pay for that sort of care, so it is ideally suited to a pooled budget arrangement but in that case it is arranged under both the NHS Act and the Care Act as a prevention and reduction service.
The report asserts that the needs had then changed and that the Council had done enough and footed the bill for the consequentially necessary additional care when that had been acknowledged – but the report does not actually provide any detail from which one could make the conclusion that there was a change for the worse.
Mr X said that the delay in getting on with the assessment meant that the one to one care became chargeable for keeping his father safe in what was always an ill-suited care home, once the free Discharge to Assess care had come to an end, whereas if it had been done sooner, then the additional cost would have fallen within the free D2A period.
In our view, unless there were liquid savings and the son had power of attorney, for his father, the Council had no option in fact but to extend the package it had contracted for at the end of the free period. The law is that people who lack capacity must be provided with care, even if they are well off, and the basis of the placement would not have been able to be changed from short term to permanent whilst an appropriate vacancy was still being sought.
The council was in all likelihood still liable for the cost of the care because the man likely lacked capacity and there would have been nobody else to contract for the father.
Of course the man would have been able to be fully charged, once it had determined that the bed was no longer a discharge to assess bed, that was needed – but only after someone in the council exercised discretion as to the consequences of the council itself not being able to have made the arrangements for an assessment in the time specified in the national D2A guidance.
That is one of the purposes of the Guidance saying that the gratuitous nature of intermediate care and reablement can be extended, we think. The Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Kirklees Metropolitan Borough Council (24 000 679) report.
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