Date of decision: 29 Jun 2025
Summary
An individual with a learning disability was inadequately catered for during a hospital admission. Overnight care was inconsistent, his needs were not reviewed when they changed, and delays in discharge left the person distressed for longer than proper, in an unfamiliar environment. His carer faced unnecessary anxiety and frustration due to poor communication between organisations. A joint investigation by both the local and central ombudsman’s service found fault on the part of both organisations, the Council and the trust hospital.
What happened
Mr X had a learning disability. He lived in a supported living placement which was staffed 24 hours a day. He also received one-to-one support from care workers for 12 hours daily, commissioned by the Council.
In late 2022, he was admitted urgently to North Middlesex Hospital for treatment. Mr X needed to fast in preparation for a stomach procedure, and it was cancelled several times and was completed only on his sixth day in hospital. His usual Provider immediately notified the Council, and requested a review of his care provision as his needs had notably changed and increased recently, especially during the night.
Ward staff confirmed the need for overnight support; Mr X could not smoke or drink coffee as desired and this increased his anxiety and level of behavioural challenge. Additionally, his brother and the ward manager confirmed that the ward staff were unable to support his needs.
The Provider provided overnight care throughout the first four nights of Mr X’s admission. The Council refused to increase his care package or budget, even temporarily for overnight care. It asserted that arranging overnight care (although during the day it was acceptable) to go in from his current provider would be “illegal” because this responsibility lay with the Trust. Therefore, the Provider did not provide care beyond the initial four nights.
Mr Y had raised safeguarding concerns, out of hours, when overnight support lapsed; the Council had cited its stance precluding intervention for legal reasons.
Two days after the procedure, medical staff deemed the man fit for discharge, but building work at his home address delayed his return. The hospital referred discharge planning to the Council; both pressed each other for a meeting, but neither took decisive ownership. There were misunderstandings about the readiness of his home address for his return and disagreements about the need to reassess support levels. The man remained in hospital for eight days after being declared medically stable, enduring increased distress due to prolonged uncertainty.
The discharge process was drawn-out, with emails and requests going between the Council, Trust, provider, and staff, all resulting in missed opportunities to review and address needs. Staff finally confirmed the placement was ready and the man was discharged 17 days after admission.
Mr Y raised a complaint in August 2023, highlighting inadequate responses and a lack of assurance on future policy reviews. The Council responded and claimed that whilst a patient is in hospital, their care is the sole responsibility of the hospital. Therefore, they could only have provided support related to companionship and social interaction during the day and this excluded physical or clinical care, such as night care support for Mr X. The Council also said the hospital should have led in arranging a person’s discharge and that they were not involved in any discussions about Mr X’s discharge. However, the Council did note that it was “disappointed that the Hospital did not feel it necessary to have a discharge planning meeting with ourselves and [the Provider] as this would have enabled arrangements to have been agreed much sooner.”
The Ombudsman forwarded Mr Y’s complaint to the Trust in early 2024. The Trust met with Mr Y and sent a written response in late September 2024. It offered an apology for the general experience suffered by Mr X and Mr Y without specifying what it was apologising for. It agreed because of this complaint, it would take action to ensure a more proactive approach to future management of discharge plans for patients, but without describing what had been done about this commitment. The Trust also accepted responsibility for failure to escalate the need for one-to-one support for Mr X in the periods when his usual care staff were not present. Following this, the Trust introduced further training and reviews to ensure problems like these were mitigated in the future, and its staff were being put through the compulsory Oliver McGowan training from Spring 2023 onwards.
The Care and Support Statutory Guidance says that where a person has both health and care and support needs, local authorities and the NHS should work together effectively to deliver a high quality, coordinated assessment.
What was found
The local government ombudsman authored a joint NHS and social care ombudsman’s report.
Both the Council and the Trust were at fault. The Trust did not consistently ensure one-to-one overnight support despite clear indications it was needed, causing anxiety and distress. The Council failed to review the man’s changed needs during admission, relying on statutory interpretations that were unsupported, resulting in lasting uncertainty and additional stress.
Trust staff had noted that, when the Provider had been providing 24-hour support, it was “extremely beneficial in reducing his anxieties”.
The investigator found it ‘difficult to understand’ how staff decided that continuing to support Mr X in the day was acceptable, but supporting him at night would have constituted a “health” duty. There did not appear to be any significant difference between the type or intensity of interventions required at either time.
The Ombudsman rejected Mr Y’s complaint about how the safeguarding out-of-hours duty team had handled the matter. When Mr Y made his complaint regarding lack of overnight support for Mr X, on the 14th day of his hospital stay, social services dealt with the complaint appropriately, in line with the decision that had been taken that it was not Barnet’s responsibility to provide overnight care. Although there was fault to the Council’s overall approach, this instance was not part of that overall difficulty, according to the Investigator.
The Ombudsman found that failures in joint discharge planning prolonged his hospital stay unnecessarily and increased distress for both the individual and his carer. This was caused by the Council’s unnecessary request for a discharge meeting, misunderstanding related to renovations at Mr X’s placement and disagreements between the Council and the Trust as to whether Mr X’s needs had changed.
Both organisations were instructed to apologise and pay £300 each, in total, to the man and his carer, to recognise the avoidable uncertainty and distress each organisation had caused to each man. The Council was additionally required to review its practice regarding hospital admissions for people with learning disabilities.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Ombudsman’s account of the review process and discharge planning highlights several critical shortcomings, and was itself, in our view, not fully aligned with the statutory guidance on the Care Act and on Discharge to Assess Guidance to the NHS.
The Council’s refusal to review the care plan when the need for overnight care needs had unquestionably changed, was inconsistent with the duty to keep care and support plans under review, and this stance shut out the Trust’s and the Council’s professional obligation to reassess when circumstances alter substantially or risk increases, even (in the case of the Council) if there is no revision of the plan, in the end.
Under the Care Act, where a person’s needs change—especially due to events like hospital admission—there is a clear statutory requirement for the council to consider whether there is a need for a proportionate reassessment, and to involve not only the service user, but all interested parties before varying or suspending a care package.
Public law requirements reinforce the need for rational and transparent decision-making, and demand explicit reasons when declining a service user or indeed anyone’s request for review.
It is commonplace for people with existing care packages to need social care when in hospital, because acute hospitals are not particularly good at coping with people with cognitive impairment if they are mobile and unsettled by the environment and the requirements for their care, which they may have no understanding of. There should not be a fight about whose responsibility it is.
The claim that it would be “illegal” for the Council to arrange overnight care from the Provider, or at all, reveals the Council staff’s ignorance of the legal framework throughout its ranks, given that the rejection of the complaint first time round on the above grounds must have been signed off by someone in a senior position.
We personally think that the fact that the Safeguarding team was excused for not knowing better, was in itself wrong in principle, on the part of the Ombudsman’s investigator.
The law simply does not work in a crystal clear way regarding the line between Health and Social care, and who should be paying for it. Local authorities have broad powers and duties to commission care flexibly to meet eligible unmet needs, other than for CHC patients, regardless of setting. If this stance had been presented to the judicial review court, Barnet would have been responsible for irrational thinking, we would predict. We think that the Out of Hours team responsible for safeguarding ought to know this too, by now!
It’s worth noting the following points:
- The responsibility of local councils to meet needs whilst apparently owed functions from the NHS can be found under s22 Care Act 2014. This states that a local authority may not meet needs which are the responsibility of the NHS UNLESS doing so would be merely incidental or ancillary to doing something else to meet those needs AND the service or facility would be of a nature that the local authority could be expected to provide. The Council was already commissioning overnight support for the gentleman in supported living.
- It is also possible for the Local Authority to reimburse the NHS for care required to be provided – which may be properly seen to be social care related (see s76 National Health Service Act 2006). The National Health Service (Conditions Relating to Payments by Local Authorities to NHS Bodies) Directions 2013 clarify that such mechanisms still exist, with conditions to ensure financial governance. It is the reverse provision that mirrors s256 grants (formerly s28A Grants) from the NHS to the council for health-related services.
Public Health England Guidance (albeit from 2015) cited by the investigator highlighted hospitals’ duties under the Equality Act 2010 to promote equality. This includes that it is the hospital’s responsibility to fund any extra support required in the hospital for people with enhanced levels of need when that need is met through shared care. We are not saying we think that this IS the law, in fact, but are including it for the sake of illuminating the investigator’s conclusions:
“For example, if a person has two hours of individual support funded each day to help them at home, this can usually be transferred to provide support in the hospital (by agreement). However, if the person only has paid support that is shared with other people, this cannot usually be transferred and additional support will have to be funded by the hospital if that is required to meet identified needs and promote an equal outcome…” (PHE, 2015)
The investigator did not say why they were referring to out of date Guidance, but one good reason, we would suggest, is that the systems are supposed to be getting ever more smoothly integrated in terms of co-operation and working together!
NHS guidance to hospital management recommends that hospitals make the most of input and advice from family members, advocates, and/or paid support staff regarding risk assessment and offsetting needs. The NHS online guidance also reflects the Equality Act theme, mentioning reasonable adjustments for those with learning disabilities, such as having a carer stay overnight in hospital.
Barnet’s failure to review had therefore created a lasting injustice for Mr Y, let alone Mr X, because of the uncertainty it had left him in.
The investigator also found it ‘difficult to understand’ why the Council specifically wanted a meeting to progress the case when it could have asked a social worker to visit Mr X on the ward, look at the inpatient records and speak to ward staff. There was no evidence that the prior concerns of the Provider about Mr X’s needs were explored even while the Council supposedly waited for the Trust to arrange a meeting. It was equally hard to understand why the Trust would not arrange a short meeting with the Council and the Provider for a multi-disciplinary discussion.
The duty to safeguard is also engaged when service users are left without adequate support. Modern person-centred practice expects councils not to hide behind inter-agency confusion but rather to ensure collaborative discharge processes with health bodies, maintaining a clear focus on wellbeing, dignity, and timely support—especially for those vulnerable due to disability.
In practical terms, councils should maintain clear documentation of all requests for support review, give timely, reasoned responses, and ensure advocacy is available for those struggling to engage in the planning process. Staff in integrated settings, the most obvious one the hospital ward before discharge, must be trained to understand their legal responsibilities, and policies must reflect the primacy of lawful, needs-led decision-making, not budgetary constraint or policy misunderstanding. Local authorities should audit cases of delayed hospital discharge and unreviewed care plans, and make senior managers personally accountable for failures to act where statutory duties are engaged.
One further aspect that is completely overlooked by the report is that Mr X was a tenant in supported living, as far as we can tell. The idea that his Provider was regarded as in any sense responsible for deciding whether or not he could go back to his home is shocking. It was his own home. We appreciate that there was a misunderstanding about whether his room was being renovated, and that that might be all that the investigator meant to convey – but if he needed more care than had been being provided normally, ie he needed one to one care at night whilst recuperating, then it needed to be commissioned, even if the contract for overnight support was separate to any contract governing his Care Act package.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s London Borough of Barnet (23 013 609) 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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