Date of decision: 05 February 2026
Summary
A daughter complained that the Council did not fund her elderly father’s first six weeks in a nursing home under the Discharge to Assess pathway after hospital discharge, then handled her concerns about eligibility and charging with confusing, contradictory explanations. The Council’s own records alternated between describing the placement as short‑term rehabilitation, D2A, and a long‑term Pathway 3 nursing placement, and it incorrectly relied on his prior home care to conclude he was not eligible for D2A. Poor communication, inconsistent notes, and unclear reasoning meant the Council’s funding decision was not clearly justified, leaving the daughter confused and burdened, at an already difficult time.
What happened
In March 2024, Mr Y fell, fractured his pelvis and was discharged home from hospital with reablement support four times a day for personal care and mobility, which the Council reduced to one call per day, as he improved with physiotherapy.
In May 2024, after another fall, Mr Y was readmitted to hospital with lumbar spine fractures.
In July 2024, a meeting was held by the hospital discharge team with Mr Y’s family where those present agreed it would not be safe for him to return home; they discussed a short‑term placement in a different setting to support his recovery away from hospital, and the occupational therapist (OT) advised that he had goals to work on and could improve if placed in the right environment. Later in July, while still an inpatient, the Council completed an Assessment of Care and Support Needs, which took account of his mental capacity and noted that a short‑term placement would give him an environment to improve with monitoring, support day and night, and mental and physical stimulation, and opportunities for rehabilitation.
That assessment said Mr Y needed 24‑hour nursing care and noted that a nursing placement should be considered and reviewed within six weeks to decide if a long‑term nursing placement was required. The OT had noted a significant change since his last admission but still considered that goals could be worked towards in the right setting.
Later in July, the Council arranged for him to be discharged from hospital to a Council‑funded nursing home.
In August 2024, a Council case note recorded a staff member querying whether this was a Discharge to Assess placement direct from hospital, because the family were unclear, and the Council recorded “correct” in response. Also in August, another case note recorded a telephone call to Mr Y’s daughter (Mrs X), in which the Council worker recorded that she had been told it was a short‑term placement for rehabilitation so he could return home.
In October 2024, Mrs X complained to the Council about its decision on funding the placement and said she had not received written confirmation of the Council’s charging decision for her father’s stay. The Council replied in November 2024, stating it had sent written notifications and apologising for the confusion created by the assessment letters she received, acknowledging that the contents of the two letters could have been combined to avoid misunderstanding. Later in November 2024, NHS Continuing Healthcare (CHC) funding was awarded for Mr Y following reassessment, as he was still in the nursing home.
In December 2024, Mrs X wrote again to the Council disputing the funding arrangements because she believed her father should have received up to six weeks free intermediate care under the D2A pathway 2 guidance after leaving hospital. In January 2025, the Council sent a further response, stating that, in its view, Mr Y was not eligible for D2A Pathway 2 funding because he had already been receiving care prior to admission.
In its response to the Ombudsman’s enquiries, the Council said it considered all cases for D2A funding and that some people already receiving services might still qualify. It added that, in its view, people assessed as needing a permanent placement would not be offered D2A because no further assessment was required. The Council also told the Ombudsman that Mr Y had been assessed as needing a Pathway 3 placement, which, under national D2A guidance is a long‑term care home placement, even though its own earlier assessment plainly described a short‑term placement with review after six weeks.
The Ombudsman noted that the Council’s adult social care complaints procedure says it will normally respond within 20 working days or keep complainants updated if it needs longer. In this case, the Council responded outside that timeframe, but kept Mrs X informed of the delay, and the Ombudsman considered this to be in line with its procedure. However, after the main complaint response, Mrs X raised an additional funding query not covered in the original complaint and sent two further emails chasing an answer. The Council was delayed in responding to this subsequent query, which the Ombudsman found to be fault.
The Ombudsman emphasised that it was not the decision‑maker on eligibility for D2A and could not rule on whether Mr Y was entitled to D2A funding; that decision rested with the Council. However, the Ombudsman found that inconsistencies and contradictions in the Council’s records – including whether the placement was D2A, a short‑term rehabilitation bed or a Pathway 3 long‑term meant the Council’s reasoning for its funding decision was unclear. This created uncertainty for Mr Y and caused Mrs X avoidable confusion.
What was found
The Ombudsman found the Council at fault for how it assessed and explained Mr Y’s eligibility for Discharge to Assess funding, because it used invalid reasoning and failed to keep clear, consistent records, which undermined the clarity of its decision‑making. Saying he could not receive D2A funding simply because he had already had care at home before admission was not in itself a lawful or adequate reason to exclude him from the D2A pathway.
The Council’s explanations shifted between stating he was on a long‑term Pathway 3 placement and recording, in its own assessment and notes, that he initially needed only a short‑term placement to be reviewed after six weeks, and that the family had been told it was a short‑term rehabilitation placement, creating unresolved contradictions. Those contradictions, together with the August case note confirming the placement as D2A and the later insistence that he was not eligible for D2A, left the funding decision unclear and difficult to defend.
The Ombudsman therefore considered that the Council’s poor communication and record‑keeping undermined its D2A funding decision and caused potential financial injustice to Mr Y, as well as avoidable confusion and inconvenience for Mrs X.
The Ombudsman did not find fault with the timing of the Council’s initial complaint response because it kept Mrs X informed in line with its policy, but found fault with the delayed response to her later, separate query.
As a remedy, within four weeks the Council must write to Mrs X with a formal apology for the contradictory information and the way it assessed her Mr Y’s nursing care funding, taking account of the Ombudsman’s guidance on effective apologies, and to pay her £250 as a token payment recognising the inconvenience caused. The Council must also make a fresh decision on Mr Y’s eligibility for D2A funding for the July 2024 placement. It must clearly explain its reasoning with reference to relevant national and local D2A guidance and backdate funding if it concludes he should have been eligible.
Within eight weeks, the Council must write to the Ombudsman setting out how it will ensure that its social care staff are fully aware of D2A eligibility procedures and provide evidence that it has completed all these actions.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The D2A model is based on evidence that the most effective way to support people is to ensure that they are discharged safely when they are clinically ready, with timely and appropriate recovery and support if needed. It was introduced to support the transition from hospital to home and to avoid unnecessary stays in hospital, where there is a higher risk of acquiring infections of deconditioning and provide short-term funding whilst they are being assessed for their longer-term care needs.
National D2A policy describes the pathways as follows, but the focus is not on the label but the purpose:
- Pathway 2: discharges to a community bed-based setting which has dedicated recovery support. New or additional health and/or social care and support is required in the short-term to help the person recover in a community bed-based setting before they are ready to either live independently at home or receive longer-term or ongoing care and support
- Pathway 3: discharges to a new residential or nursing home setting, for people who are considered likely to need long-term residential or nursing home care. Should be used only in exceptional circumstances
Guidance on charging and care‑planning materials on community care law emphasises the distinction between free intermediate care or reablement in any setting, chargeable residential or home care, and longer‑term support. The Ombudsman rightly identifies that prior care at home is not, in itself, a lawful ground for excluding someone from D2A.
The facts show the Council moving Mr Y from hospital into a nursing home on a short‑term basis, with defined rehabilitation goals, a six‑week review point, and an occupational therapist’s view that he might improve in the right environment. This was clearly for the purposes of rehab/reablement, and would have been obliged to be free, whether the NHS was paying for it or the Local Authority.
We are now going to consider why in fact the NHS was legally obliged to pay for the short term placement in our view.
What the facts do not explore is whether he was checklisted. If he was checklisted for CHC consideration, positively, then the NHS should have been paying. If he was negatively checklisted, then he should have been funded by the Council. We suspect he was not checklisted at all, because the National Framework says it will not be necessary where the individual has short-term health care needs or is recovering from a temporary condition and has not yet reached their optimum potential.
However, it also says that if there is doubt between practitioners about the short-term nature of the needs it may be necessary to complete a Checklist and advises practitioners to study paragraphs 96-103 for how NHS Continuing Healthcare may interact with hospital discharge.
Para 103 says that ICBs should ensure that local protocols are developed between themselves, other NHS bodies, local authorities and other relevant partners. These should set out each organisation’s role and how responsibilities are to be exercised in relation to hospital discharge, including any arrangements for intermediate, reablement, rehabilitation or sub-acute care and arrangements for long-term care assessments including NHS Continuing Healthcare. In particular, ICBs should ensure (i.e. through contractual arrangements) that discharge policies with all providers are clear. Where appropriate, the ICB may wish to make provisions in its contract with the provider. There should be processes in place to identify those individuals for whom it is appropriate to undertake a screening for NHS Continuing Healthcare using the Checklist and, where the Checklist is positive, for full assessment of eligibility to be undertaken at the appropriate time and place.
104. For individuals leaving the acute hospital environment, it is best practice to screen for NHS Continuing Healthcare at the right time and in the right place for that individual. In the vast majority of cases this will be following discharge and after a period of recovery in a familiar setting or intermediate/rehabilitation placement. It should always be borne in mind that a screening, or an assessment of eligibility for NHS Continuing Healthcare that takes place in an acute hospital setting is unlikely to accurately reflect an individual’s longer-term needs. This could be because, with appropriate support and opportunity, the individual has the potential to recover further in the near future. Another reason is that it may be difficult to make an accurate assessment of an individual’s needs while they are in an acute services environment.
105. Where an individual is ready to be safely discharged from acute hospital it is very important that this should happen without delay. Therefore, the assessment process for NHS Continuing Healthcare should not be allowed to delay hospital discharge.
106. In order to ensure that unnecessary stays on acute wards are avoided, there should be consideration of whether the provision of further NHS-funded services is appropriate. This might include therapy and/or rehabilitation, if that could make a difference to the potential of the individual in the following few weeks or months. It might also include intermediate care or an interim package of support, preferably in an individual’s own home. In such situations, assessment of eligibility for NHS Continuing Healthcare, if still required, should be undertaken when an accurate assessment of ongoing needs can be made. The interim services should continue until it has been decided whether or not the individual has a need for NHS Continuing Healthcare (refer to paragraph 107). There must be no gap in the provision of appropriate support to meet the individual’s needs. It is important that there are clear local protocols setting out where responsibility for meeting an individual’s needs lies, including who is responsible for funding their care and support.
The LEGAL trouble with how this fits in with Discharge To Assess policy is that the standing rules governing the NHS obligations still make it absolutely clear that FNC status for those headed to a nursing home must not be determined before a person’s CHC status.
r21(3) If an assessment for NHS Continuing Healthcare is required under paragraph (2)(a), the relevant body must ensure that it is carried out before any assessment pursuant to regulation 28(1) (persons who enter relevant premises or who develop a need for nursing care) is carried out.
r28.—(1) Subject to paragraphs (2) and (3), where it appears to a relevant body in respect of a person for whom it has responsibility that that person—
- is resident in relevant premises or may need to become resident in such premises; and
- may be in need of nursing care,
that body must carry out an assessment of the need for nursing care.
(2) Before carrying out an assessment under paragraph (1), the relevant body must consider whether its duty under regulation 21(2) is engaged, and if so, it must comply with the requirements of regulation 21 prior to carrying out any assessment under this regulation.
A relevant body is the ICB; relevant premises are premises where regulated activity is carried on and for which there is a registered person – so this means a hospital or a care home.
We think that this means in effect that if an individual needs a bedded setting for short or long term purposes after hospital discharge, it must be funded in the interim before a DST by the NHS, in full, not by a council paying for the residential care portion of a standard nursing home placement.
This is covered – albeit very obscurely in the D2A guidance – but we would venture to suggest that nobody other than an obsessive lawyer would understand their nuances of this sort of treatment:
NHS England and ICBs must comply with their duties in relation to NHS continuing healthcare and NHS-funded nursing care, as set out in the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012, while having regard to the national framework for NHS continuing healthcare and NHS-funded nursing care.
It is equally echoed in the National Framework, again, very opaquely:
This National Framework is underpinned by the National Health Service Commissioning Board and Clinical Groups (Responsibilities and Standing Rules) Regulations 2012, issued under the National Health Service Act 2006. These regulations, referred to henceforth as the Standing Rules, require Integrated Care Boards (ICBs) to have regard to the National Framework.
The Ombudsman’s investigator makes no enquiry as to the difference between the local policy and the national policies, nor to the issue regarding checklisting for this man, who did end up getting continuing NHS healthcare.
Community care law stresses that when an ASC council is arranging a change of setting in this way, it remains under a duty to carry out and document a lawful needs assessment that distinguishes between prevention, rehabilitation and the meeting of eligible needs, rather than letting the discharge pathway label determine the person’s rights – if for no other reason, because of the need to determine the charging impact in light of the rules that reablement is free for up to 6 weeks.
In local authority terms intermediate care is interchangeable with reablement but may be summarised as short term care without any specific reablement purpose, and also free under the rules for up to 6 weeks.
The Ombudsman noted inconsistency in the Council’s terminology but did not directly examine whether the authority had fulfilled its duty to complete and revisit a formal assessment and eligibility decision in light of the six‑week review plan.
This is not surprising in terms of how D2A guidance and its interpretation within local policies written by hospital trust managers obscures what role is actually being played in Care Act terms by hospital-based social workers on tight expectations for swift discharge. Are they (as here) purporting to assess under the Care Act, arriving at an eligibility decision and intending to review it shortly? Or are they commencing an assessment and pausing it after identifying short term objectives to determine the appropriate setting and then scheduling completion a few weeks later? They are clearly not completing an assessment if there is no eligibility decision for a care package or a care plan in the cases of the most rapid discharges about which one reads. Or, are they just doing the bidding of the NHS and informing NHS decision making about appropriate settings, given that the NHS knows little about care management for individuals? One cannot even tell from looking at who is funding the bed, because the money may be coming out of a single s75 pooled budget, without any details as to cross delegation of functions. The council could be ‘lead commissioning’ FOR the NHS, as opposed to acting under its ordinary Care Act functions.
Management should be aware of legal risk inherent in substituting process labels (such as D2A or Pathway 3) for a genuine application of the statutory test of “appearance of need”, involvement, and recorded professional judgment about eligible needs and outcomes.
In this case, the Ombudsman accepted the Council’s general position that it could determine D2A eligibility and focused on record‑keeping and explanation, but did not explicitly test whether the Council’s decision‑making respected the core public law principle that statutory duties cannot be cut down by local pathway policies, or even by central government ones, if they are not consistent with the governing statutory and regulations-based framework.
Adults and their families are entitled not only to be informed about what is happening, but also to receive a clear, coherent explanation of the legal basis for decisions, the distinction between provisional and final decisions, and the link between assessments, plans, and funding.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Surrey County Council (25 001 228) 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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