Decision Date: 31 March 2025
Summary
The Council’s assessment of a patient’s needs before she was discharged from hospital was unsatisfactory because it failed to address the concerns expressed by her family and was not transparent about the options. The Council assessed that the woman was able to return home; her family privately arranged for her to stay in a care home and sold her home, perhaps unnecessarily.
What happened
Mrs X was 91 and lived at home with a twice daily package of care arranged by the Council. Since she had assets above the upper threshold, Mrs X paid the full cost of her care. Mrs X had dementia and her daughters had joint power of attorney for at least finance and property.
On 19 September, Mrs X had an unwitnessed fall at home and was admitted to hospital.
An assessment of Mrs X’s functional abilities was completed on the hospital ward – but it was not turned into a Care Act decision of any formal sort.
It was identified that she was severely frail and needed the close supervision of two people to guide her to stand and needed to use a rollator frame to walk and two people to get her into and out of bed. The OT wrote down that ‘BBR (bed-based rehabilitation) was not an option in Sutton’.
As a result of the discussion on this occasion, the ward occupational therapist sent a referral for a temporary respite placement under Pathway 3. (The BBR option would have been a Pathway 2 response). A Pathway 3 solution would ensure that she was discharged to a “new residential or nursing home setting” (under the national Hospital discharge and community support guidance, it seems).
The social worker queried the referral and spoke to the OT about it, asking for a mental capacity assessment and some insight into her nursing needs.
The OT then explained to Ms Y, Mrs X’s daughter, that the social worker’s own recommendation was for Mrs X to return home with a package of care. The OT replied to the social work team that Mrs X was “unable to communicate with me about this, so I spoke with her daughter, in her best interests”. Ms Y told the OT that she wanted a meeting to discuss the possible pathway 3 referral because she was already not coping at home and would not tolerate waiting in bed for 12 hours for carers to arrive.
Ms Y also wanted to know whether the social worker had assessed Mrs X’s cognitive state, personally.
On 2 October an Assessment Officer visited Mrs X on the ward, with 2 ward therapists, but this was still not made into a Care Act assessment.
The officer reported that when asked where she would like to be discharged, Mrs X replied “I have my own home, I want to go where everyone else wants to go when they are in hospital, home, I am no exception”. The Assessment Officer also reported that there were no concerns regarding capacity to make this decision.
Later that day, the team leader telephoned Ms Y and explained that Mrs X wanted to come home and had capacity to decide this. She also explained to Ms Y that if Mrs X decided to go into a care home it would have to be funded privately because it would be her choice: the ICB and SS had assessed her as not needing 24 hour care.
It seems that Ms Y and Ms Z were under extreme pressure because the team leader [the report does not say whether this was an NHS employee or a council employee] told Ms Y that the hospital needed the bed and they had to make a decision immediately.
They organised for Mrs X to go into a care home for a month’s respite care. At the end of the month Mrs X decided to stay in the care home.
Ms Y and Ms Z (another daughter) said they told the Council in that same month (October) that Mrs X’s finances were already below the upper capital threshold but the Council only began the financial assessment in November when they complained and did not complete it until February 2024.
Ms Y and Ms Z’s position was that if they had been provided with more information about the 12 week disregard and the possibility of a deferred payment, which they could have signed under the power of attorney, they may not have sold Mrs Z’s home.
In December Mrs X was considered for NHS Continuing Healthcare (CHC) funding. By this point she also had a formal diagnosis of dementia. She was not found to be eligible to receive CHC funding. However, she was found eligible for FNC which was backdated to the date of her admission to the care home.
The Council only responded to the complaint in February 2024, despite it being made in November. The Council’s Head of Service apologised for the delay in response.
She said that initial OT’s referral for Pathway 3 had been based on ‘incorrect information’ (ie. that there was no bed-based rehabilitation facility available). She also said that there was a “genuine view” that Mrs Z could be discharged safely home after the Assessment Officer’s visit.
The Head of Service thus partly upheld the complaint. She concluded that the assessment that took place in the hospital might not have reflected a “true picture of the needs and risks” if Mrs X were alone at home.
In April, the Head of Service confirmed to Ms Y the existence of the 12-week property disregard. However, she said this was the total of the “assisted funding eligibility”. She added that since the care home admission had been made privately, the Council would pay “£920.29 per week for the 12 weeks. Charging for care contributions still apply for the 12 weeks”.
After this correspondence, Ms Y and Ms Z complained to the Ombudsman. They complained about being incorrectly told that there was no rehabilitation facility available at the time of discharge. They also complained about the delay in receiving a response from the Council to the complaint they made to it, and the financial loss it had contributed to.
What was found
The Council’s records were contradictory. The ward therapist says he discussed the matter with Ms Y ‘in Mrs X’s best interests’ (implying he thought that she lacked capacity) but the Assessment Officer recorded that there were no concerns about Mrs X’s capacity, a little later on. [The report does not detail whether the OT was a locum or an NHS OT, but he may have assumed that the daughters’ PoA meant that incapacity had already been established.]
In the known context within the records that Mrs X would not tolerate staying in bed for up to 12 hours waiting for carers but needed the “assistance of two people to get into and out of bed” and was “severely frail”, the decision to discharge her home, was not a decision that could be regarded as properly made. The fact that her FNC eligibility was backdated to the date of her admission to the care home was consistent with this.
Mrs X was self-funding at the time of her discharge from hospital, but the evidence suggests her eligibility for assistance started much sooner than the Council decided.
It had refused backdating of the disregard (this is not consistent with the facts in the report, it has to be said) because of the decision to make a private arrangement. The Ombudsman found that that was after a less than adequate consideration of her needs.
But the Council did agree to reconsider the date from which the financial assessment was calculated and offer a sum to Ms Y and Ms Z to remedy the injustice.
Within one month of the final decision the Council was ordered to offer £100 to Ms Y and Ms Z in recognition of the distress and uncertainty its lack of full consideration of Mrs X’s needs caused.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This story is convoluted but masks a very typical saga unfolding on hospital wards every day. A member of the ward discharge team (employer unclear and someone who may be a locum put straight to work) makes a recommendation (under a local D2A protocol, not the national one) which the social worker (who may not be responsible for the discharge, depending on whether the person is checklisted for CHC, or regarded as needing an interim step-down bed before a longer term needs assessment is made, because those discharges are supposed to be made by the NHS) is not so sure that the person cannot go home. A functional assessment which is not a Care Act assessment is made, and people take a view about capacity and take what comes out of the person’s own mouth at face value without necessarily bottoming out inconsistencies that could actually negate the presumption of capacity, with the relatives. All hell breaks loose with nobody identifying whose duty it is to make the next decision.
This is how it should happen when the person is medically optimised and ready to leave hospital.
Rehab? Rehab in a Care home? Not suited to rehabilitation? Or should the person be going Home First?
If bed based rehabilitation is needed, and the person is suited to it, then the NHS has not finished its duties to the person even if they’re not staying in hospital for the rehab support. Rehab is an NHS function, in a community hospital, specialist facility or a care home or a nursing home. It is for people who may be medically optimised for discharge, but still with potential for improvement and with possibly a need for intensive and skilled support to do so.
It’s not often regarded as easy to provide for someone who’s cognitively impaired.
Of course a person might make their own decision about what they need if they have no financial worries about how to pay for it.
But a council can only make a social services decision after a Care Act assessment. And one of those only starts after the NHS has finished its own decision-making duties about someone in a hospital setting.
For people discharged from hospital, the obvious question that D2A fails to answer at a national or a local level is ‘Whose Discharge Responsibility Should This Person Be ’?
It’s clear here that Sutton Council took responsibility for what had been allowed to happen and for its input into the decision making. But if Bed Based Rehabilitation had been available, it sounds as if the ward OT would have been expecting that to be the outcome for Mrs X.
The Council accepted it was ‘not correct’ for the ward therapist to say there was no bed-based provision in the borough.
However, the report does not make it clear whether the Council meant that
- that was a factual mistake, just in terms of a vacancy,
- or not something that ‘happened’ in Sutton,
- or that the therapist was concluding that Mrs X would not be suited to it because of the level of her cognitive function as he saw it,
- or that he simply had no business saying that that was the case, because it was not a decision for him.
If it IS a social services function that falls next to be discharged, when the care planning decision needs to be made, because the NHS isn’t taking interim responsibility for it, and neither is anyone acting with legal authority for the person’s welfare, and nor is the person themselves taking the decision, then if the person can be cared for at home and is apparently happy to go home with a care package, then that is the decision and the attorneys can pay for the charges. If it’s a reablement package it will be free for up to 6 weeks and then long term social care charges will commence, according to the means assessment.
If the Council’s thinking is that a care home may be necessary, however, that decision can only be implemented with the consent of the person in the hospital bed or a welfare authority holder. So it becomes essential to determine capacity, for attracting a s5 defence to assaulting the person when conveying them, unless there is a welfare attorney or a deputy.
To make a decision on capacity, one needs to be able to tell the person in the bed the relevant information about the placement that is being proposed so that the person can make an informed decision. Whether or not there’s a charge for it is bound to be relevant, we feel, for most people, and their relatives.
Above or Below Threshold?
If the person is clearly above threshold, regardless of any housing disregard, then a finance attorney has the authority to make a private arrangement and should get on with it. The attorney should consult others interested in the person’s welfare if the person is already regarded by the attorney as lacking in capacity.
If the person in the bed is not incapacitated, then of course the attorney will be being steered at least, by that person.
If the person is below threshold, or below threshold taking the 12 week disregard into account, the attorney can require the local council to make a decision as to the care package. It might be a temporary one, pending further settling and assessment, or it may be made permanent, straight away.
Capacitated or not?
If the person has capacity and consents, then they can be cared for in a care home.
If the person lacks capacity then the Council MUST make that decision and they do so under the MCA – they can make it in the person’s best interests and leave it to someone else to challenge but they must do it in a lawful way, after best interests consultation.
If the person lacks capacity and does object or may be thought to be objecting to being placed in a care home, then the person’s move must be covered by a DoLS authorisation.
The Council here later said that at the time of her hospital admission, she was able to make decisions about her own care because there had been no formal diagnosis of dementia. That was really a poor grasp of the way the presumption of capacity works, we have to say.
It is not clear whether the daughters had a power of attorney for finance or for welfare. Let us assume it was for at least finance: they were conducting themselves consistently with that role.
That form of authority can be utilised (as long as registered) as soon as it has been set up and does not depend on incapacity respecting financial management, unlike a welfare power of attorney.
So, if it was not authority for welfare decision-making that they had, and they had wrongly ignored the assessment officer’s views as to Mrs X’s fitness to come home and just stuck her in a care home, we would wonder at any Council simply treating them as lawfully able to take that decision. Her self-funding status at the time, however, does make us think that this may have been the case – safeguarding is regarded still as for the poor, we tend to find.
We are not told whether a DoLS authorisation was sought for that 4 week period, which would have been necessary if she was lacking in capacity, and the move was just something that they had done in her supposed best interests – it sounds from the ward meeting that she was capable of speaking up for herself and would not have merely acquiesced.
Of course now we know the context, it seems as if it was the RIGHT thing to do, to take the decision themselves because they knew that she could not conceivably cope with a package of home care.
But it sounds as if she must have been just on the cusp of the financial threshold, which would have made proper financial assessment and charging and disregard information all the more important, if one looks at the order in which things are supposed to be done in order to decide WHO is the right decision-maker at any given point.
All in all, a grim reflection on Discharge to Assess, and the way it has led to everyone just glossing over who is doing what for, to and in lieu of whom, at a hugely important time for any unwell person’s wellbeing.
Financial advice aspects of this report
The investigator said that the daughters suggested that delay by the Council in answering their financial queries for several months, caused additional financial loss in terms of the other options available to them for Mrs X’s house (which they sold to pay her care fees), but opined that it was not the responsibility of the Council to give financial advice to ensure they made the best financial decision.
We just can’t understand this because that is precisely what the Council’s responsibility IS – within the s4 Care Act advice and information function that is their duty! The chapter on advice and information makes that quite clear:
Para 3.36
“Financial information and advice is fundamental to enabling people to make well-informed choices about how they pay for their care. It is integral to a person’s consideration of how best to meet care and support needs, immediately or in the future. People with good and impartial financial information and advice have a better understanding of how their available resources can be used more flexibly to fund a wider range of care options.”
Paragraph 3.44 (Ways to pay):
“The local authority must provide people with information on the availability of different ways to pay for care including through income and assets (for example, pension or housing wealth), a deferred payment agreement (see chapter 9 on deferred payment agreements), a financial product or a combination of these things.”
We think that (always assuming that it was right that this was a Council-supported discharge from hospital, not one that should have been an NHS interim one), then the disregard should have been backdated to the point when the woman’s capital first went below the capital threshold. This is because the Council should really have been making the permanent council commissioned placement that triggers the disregard, for 12 weeks, at that point.
The report is unfortunately not as clear as it could be, because it does not say whether depletion had been found to have occurred in October albeit shortly after the hospital discharge, or whether they had sold the property before 12 weeks after depleting under the threshold. Either way, they needed proper information about the workings of the system, so we are concerned that the Ombudsman has not taken that line.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s London Borough of Sutton (24 001 763) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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