Date of decision: 05 February 2026
Summary
A woman with long‑term supported living and health needs was assessed and had her care planned by the Council without properly involving her family or arranging timely advocacy, even though she lacked the capacity to decide about her care and accommodation. After she was declared medically optimised, delays and poor coordination by the Council over equipment, care hours and nursing input kept her in hospital and then step‑down care for three weeks, causing her distress and leaving her brother distressed and uncertain while professionals debated options already safely in place before hospital admission.
What happened
Ms C had lived for over 20 years in a supported living bungalow and had previously attended a day centre, but when she became unable to attend, the Council temporarily increased her supported living care package by 20 hours per week to cover the lost day‑centre time.
In April 2024, the Council began a Care Act assessment to review her care and support needs, while the local Integrated Care Board (ICB) carried out an NHS Continuing Healthcare (CHC) assessment that found she was not eligible for CHC, but was eligible for NHS‑funded nursing care (FNC), which could support nursing home fees if required. No move was made at this point.
In May 2024, Ms C was admitted to an acute hospital managed by the Trust with fluid‑retention symptoms, and after around two weeks the Trust assessed her as medically fit for discharge. She was assessed under the Mental Capacity Act 2005 as lacking capacity to decide about her post‑discharge care, so decisions about her future care and residence had to be made in her best interests, following the statutory framework.
The Council’s initial Care Act assessment, started in April and completed while Ms C was in hospital, did not involve Mr B or other family members, and the assessment paperwork gave no reason for excluding them; later, in complaint correspondence, the Council said it could find no record that family had been consulted and apologised for this omission. In addition to the requirements in s4 Mental Capacity Act, it is also the law under section 9(5)(c) of the Care Act 2014 that the Council should have involved anyone the adult asked to be involved, or, where the adult lacked capacity, any person appearing to be interested in her welfare, so the Ombudsman regarded this failure to involve Mr B from the outset as fault.
Further meetings were arranged to plan discharge and post‑hospital care. This time, the first involved Ms C’s family, the clinical and nursing team, the learning disability nursing team, the Council, and the supported living provider; the second involved the family, Council and provider. At the second meeting, the Council said Ms C would need nursing care on discharge because the supported living provider did not have nursing support, and it proposed a nursing home, while the family argued that a move to an unknown nursing home would seriously harm her and that she wanted to return home. The notes recorded agreement that Ms C would move to a “step‑down” bed in a community hospital while discharge planning continued.
Ms C transferred to the community hospital, where she stayed for three weeks. A further discharge planning meeting took place but did not resolve where she should live or how care would be provided; afterwards, a multidisciplinary meeting reviewed the FNC decision, and the Trust made a safeguarding referral because Ms C was distressed in hospital. An increased home care package was eventually agreed and Ms C was discharged back to her supported living the next day; sadly, she died several days after returning home.
Mr B complained that the Council had arranged key assessments and discharge planning without involving the family or appointing an IMCA, had pursued a nursing home move contrary to Ms C’s wishes and her existing long‑term arrangements, had produced an inaccurate care plan, and had kept poor records and delayed sharing meeting minutes. The Ombudsman noted that the Council only contacted an independent advocate around the later discharge‑planning meetings, rather than at the beginning of the assessment process, and that this was not in line with Care and Support Statutory Guidance expectations to appoint an advocate as early as possible where needed (it is the law that without an advocate, the decision under the Care Act where one is needed, or could not reasonably be considered not to be needed, is in fact invalid).
The Ombudsman found that if Ms C’s family had been involved from the start of the Care Act assessment, they could have understood the situation earlier, challenged the suggestion of a nursing home, and raised concerns at an earlier stage; instead, they only learned about the nursing home proposal later and were denied an early opportunity to influence the care‑planning trajectory.
On record‑keeping, Mr B said there were errors in Ms C’s care plan, that meeting notes did not reflect the family’s views or match their own records, and that the Council delayed sending minutes to him. The Council admitted delay in sending minutes, apologised, and said it would add Mr B’s notes to its records so they could be read alongside each other.
The Ombudsman referred to the Mental Capacity Act Code of Practice, which says health and social care staff should record why a best interests decision is considered appropriate, especially when it goes against views of consulted people; in this case the delay meant Mr B lacked an authoritative written record for several weeks, causing confusion and distress and depriving him of a chance to challenge the record contemporaneously.
On discharge and transfer to step‑down care, Mr B said there was a three‑week delay in Ms C leaving hospital after she was declared medically fit, during which she was moved from the acute hospital to the community hospital and attended the acute Emergency Department after a fall, all of which he considered unnecessarily disruptive and distressing. At the first discharge meeting, Trust clinicians said Ms C’s need for nursing care was the same as before admission, though there might be a future need, and specified that her weight should be monitored every other day for fluid retention after discharge. The subsequent meeting notes, however, recorded that the clinical team had indicated Ms C would need nursing care on discharge, which did not match the most recent clinical statement that her nursing needs were unchanged from baseline, and the concerns recorded related more to personal care and equipment (bathing, weight monitoring, wheelchair) than acute or formally registered nursing care.
Shortly after Ms C moved to the community hospital, the Trust contacted the Council to say she was distressed and unsettled, that discharge home was in her best interests, and that essential equipment could be addressed in the community because alternatives were available; a further medical review also supported discharge home to a familiar environment.
The Trust’s Discharge and Transfer Policy requires the “home first” principle for patients with complex discharge needs and says medically fit patients should not stay in hospital longer due to the negative impact, and that discharge planning should involve the patient, representatives, and multi-disciplinary team; the Trust referred Ms C to the discharge management team and repeatedly raised concerns with the Council about her remaining in hospital, so the Ombudsman found no fault in the Trust’s discharge practice.
The Council, in its complaint response, said it had to consider Ms C’s prior FNC eligibility decision, equipment requirements, and information from the family, Trust and provider, and explained that supported living did not have nursing oversight and that Ms C now needed a larger care package. It apologised for the time taken but said it needed to explore differing opinions about the level of care required.
The Care and Support Statutory Guidance stresses the need for person‑centred care planning and says that where a person lacks capacity, the Council must plan in their best interests and consider the least restrictive option; the National Framework for NHS Continuing Healthcare and FNC emphasises multi-disciplinary working and warns against over‑risk‑averse decisions.
The Trust’s evidence showed Ms C was mobilising independently and had returned to her baseline mobility, while Ms C’s family offered to hire a wheelchair and buy scales themselves to avoid delay. During discharge planning, the provider requested a further increase of 44 hours of care to support Ms C’s mobility needs and this led the Council to revisit the possibility of a nursing home, but the Ombudsman noted that FNC eligibility had existed before admission without preventing Ms C from living at home, and that clinical information from the Trust did not support a current nursing‑home‑level need.
What was found
The final discharge‑planning meeting again did not reach a clear decision and asked for more information, even though the Trust had already provided information about nursing needs, mobility and equipment both when Ms C was declared medically fit and via the discharge management and community hospital teams. The Ombudsman concluded that, although the Council eventually funded an increased care package and Ms C returned home, the three‑week delay after she was medically fit was unjustified; a best interests decision to allow her to return to supported living with increased support and practical workarounds for equipment could and should have been made sooner.
The Ombudsman also noted that any concerns Mr B had specifically about the CHC assessment itself should be taken up with the relevant ICB, which is responsible for CHC processes.
Although this was a joint investigation alongside the Parliamentary Ombudsman, the Ombudsmen found no fault in the Trust’s actions, as it followed its Discharge and Transfer Policy, applied the “home first” principle, referred Ms C to its discharge management team, raised safeguarding concerns appropriately, and consistently pressed for discharge home with proportionate risk management.
To remedy the injustice, the Council agreed within one month to apologise to Mr B and pay him £250 as a symbolic recognition of the avoidable distress and uncertainty, and within three months to review its systems and procedures relating to involving families, best‑interests recording, and discharge planning, sharing the review outcome with relevant staff and evidencing compliance to the Ombudsman.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This is a textbook application of the actual statutory framework by the Ombudsman – and it is astonishing that an integrated hospital discharge team could be operating day to day without knowing that they were not doing it properly, albeit we fear that the same scenario could happen pretty much anywhere at this moment.
The Council’s handling of discharge planning breached duties to plan in Ms C’s best interests using the duty to consider whether there is a less restrictive option than the one planned, and its failure to cooperate effectively with NHS partners breached Care Act, MCA and NHS rules.
This complaint illustrates that councils must treat Care Act assessments as a structured legal process, not an internal discussion about discharge options. Public law and community care law expect assessors to identify the totality of need, the impact on wellbeing, and the adult’s desired outcomes before moving on to resource discussions or preferred settings. Community care law reinforces that assessment is not an assessment “for a service” but for needs, impact and outcomes, and the Council’s early focus on whether a nursing home might be required sits uneasily with that framework.
Community care law has stressed that assessments which presuppose a move to cheaper or “safer” provision, or which are driven by assumptions about what providers can or cannot do, are unlawful if they do not first analyse impact on wellbeing and desired outcomes in the person’s current context.
In this matter, Ms C had lived successfully in supported living and had not moved into a nursing environment despite eligibility for FNC entitlement. The Council’s repeated return to a nursing‑home proposal without an explicit comparative analysis of how that would affect her emotional well-being, control over day‑to‑day life, relationships and suitability of accommodation suggests a gap between the legal tests applied in community care case law and the more limited analysis recorded in the Ombudsman’s law section.
The third distinct issue is the handling of fluctuating and multi‑agency decision‑making during the three‑week delay after Ms C was medically fit. In this matter, the Trust repeatedly applied a home‑first approach and offered practical workarounds for equipment, yet the Council continued to defer a decision while reconsidering whether a nursing home might be needed – seemingly on account of the cost comparison, for someone who may have been regarded as terminally ill (we do not know that that was the position, but she died within a short while of returning home.) A focus on whether every serious risk could be managed acceptably, should have been the priority.
Without an advocate from the outset, there was no independent voice insisting that assessment be completed lawfully before placement options were debated, challenging the implicit downgrading of wellbeing outcomes when nursing home options were floated, or pressing for a decision once the Trust’s position on medical fitness and considered discharge options in terms of restrictiveness, was clear. Community care law underlines that where a person has substantial difficulty in engaging and no appropriate representative, advocacy is not a discretionary “good practice” add‑on but a structural safeguard without which later Care Act / best interests decisions may be vulnerable. The Ombudsman rightly identifies delay in arranging advocacy as fault, but stops short of drawing out how that omission contributed to the legal weaknesses in assessment, care planning and discharge decision‑making across the whole period.
Overall, although this decision offers a strong narrative about poor involvement, record‑keeping and discharge delay, it does not fully exploit the tools that public law and community care law provide for analysing whether the Council’s assessment and planning were lawful in form as well as substance. Councils, advocates and families reading this case should therefore treat it as a starting point and, in parallel, apply the stricter tests from community care law: has the assessment genuinely captured all needs and impacts; is there a clear, evidenced link between wellbeing, outcomes and the chosen setting; have best‑interests decisions been taken within a reasonable timescale on the information actually available; and has advocacy been used proactively wherever the statutory triggers are met.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Durham County Council (24 012 474) 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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