Summary: The Council failed to provide an appropriate placement to meet Mrs C’s adult social care needs. The Council failed to offer an available suitable placement in Mr B’s area once it decided it was in Mrs C’s best interests to move there. The Council failed to deal with Mr B’s complaint in line with its complaint procedure. The Council should apologise, pay Mr B £500 and remind staff of correct procedures.

The complaint

1. The complainant, who I will call Mr B, says the Council failed to provide appropriate care support to his mother (Mrs C) when she was discharged from hospital. Mr B wanted his mother to move to his area, but that did not happen. The Council placed Mrs C in a residential home; Mr B feels Mrs C needed nursing care. Mr B feels the Council should have completed an NHS checklist.
2. Mrs C was asked to leave two care homes as they could not meet her needs. The Council’s officers failed to turn up to meetings and did not call in the NHS when required. Mr B says he brought in the NHS who assessed his mother was eligible for Continuing Healthcare funding, but not until his mother had moved to a suitable home.
3. Mr B says the Council delayed dealing with his complaint. Mr B says it has been very frustrating trying to resolve issues when he lives elsewhere. Mr B says he has had inconvenience, time, trouble and financial pressure. Mr B says the Council holds reports that cast aspersions on his character. Mr B says the Council’s failures led to a decline in his mother’s health, and ultimately to her death.

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What I have investigated

4. I have investigated the issues above but have not investigated the issue about the Council’s records. The end of this statement explains my reasons for not investigating that issue.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
7. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I considered:
• Information provided by Mr B, including during a telephone conversation.
• Information from the Council in response to my enquiries.
• The Care Act 2014 and associated statutory guidance.
• The Mental Capacity Act 2005 and associated statutory guidance.
9. Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

10. Mrs C was in her nineties, she lived alone with support from a care package. Mr B lives over 100 miles away. Mrs C went into hospital after a fall and head injury, she had surgery to her brain. The Council became involved when it was time to plan Mrs C’s discharge from hospital.
11. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves. A key principle of the Mental Capacity Act is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests.
12. The Council completed a care needs assessment in accordance with the Care Act. The Council concluded Mrs C needed 24-hour care, though did not specify whether Mrs C needed residential or nursing care. The assessment said Mrs C did not have capacity to decide her care needs, but there is no evidence of any capacity assessment regarding Mrs C’s ability to decide where to live. Mr B looked at care homes in his area, but says the Council resisted any options because of the cost.
13. The Council found a place at a residential home close to Mrs C’s home. As Mrs C and her children agreed, the Council decided it did not need to complete any formal best interest decision for this placement. Mr B says because Mrs C’s friends could visit her easily, he agreed to the placement.
14. Mrs C moved to care home 1. The Council completed a review five weeks later, as required by the Care Act. The outcome is not recorded in the notes, and the Council has not provided a copy of the review document. I am assuming Mrs C had settled well at this time, as the Council closed its involvement.
15. A month later Mr B contacted the Council asking if it had completed an NHS Continuing Healthcare checklist. Continuing Healthcare funding (CHC) is free social care arranged and funded solely by the NHS for some people with long-term complex health needs. The Council’s involvement with CHC funding is to complete a Checklist to decide whether a full NHS assessment is needed, though they are not the only ones who can complete the Checklist. A family member or care provider may refer a person to the NHS for continuing care assessment if the council does not. It is the responsibility of the relevant NHS body, not the council, to assess the person’s needs and decide whether they are eligible for continuing care.
16. The NHS National Framework Guidelines say there are many situations where it is not necessary to complete a Checklist, but where someone requires a care home placement it expects a Checklist to be completed. I have not seen the Council’s own policy to see whether it follows these NHS guidelines. The Council did not complete a Checklist because it did not think Mrs C had any nursing needs. The care assessment was completed while Mrs C was still in hospital, a nurse was present, and did not complete a Checklist either.
17. A few months later Mr B asked the Council about Mrs C moving closer to him. The Council explained it would need to complete a mental capacity assessment with Mrs C to assess if she could make that decision, and if not, they would need to complete a best interests meeting.
18. Mr B thought the Council had arranged a date to meet, he telephoned the Council to find out what time and was upset to find no meeting was planned that day. The Council arranged to meet him that day before he travelled back to his hometown. There is no evidence from the Council’s records that a meeting was arranged for that date.
19. Mr B and care home 1 told the Council Mrs C’s condition had deteriorated and care home 1 was no longer able to meet her needs, Mrs C had lived there for five months. A health professional said Mrs C needed an Older Persons Mental Health Nursing Home. The Council agreed to assess Mrs C’s capacity around care support and accommodation, and hold a best interest meeting once accommodation options were available. Mr B and the Council started to investigate nursing homes in his local area. The Council only told Mr B to look for homes that specialised in dementia, it did not mention mental health nursing to him.
20. Mr B found two care homes he was happy with, though these were not Older Persons Mental Health Nursing homes, the Council contacted them for availability. One home felt it could meet Mrs C’s needs, but the Council thought it was too expensive. The Council said it would match Mr B’s local council’s rate. The Council phoned Mr B’s local council who explained there is no set figure as it is individual to each person.
21. The Council found an available and suitable Older Persons Mental Health Nursing home in its area, at a rate it would fund. It arranged a best interest meeting to decide if this was the best option to meet Mrs C’s needs. The best interest meeting did not go ahead as Mr B said he wanted his mother to stay close to her friends. Mr B told the Council he was now willing to pay a top up to achieve a home in the area he wanted. The Council decided to consider the two homes Mr B suggested, and if there was no agreement, they would hold a best interest meeting to find a solution.
22. Mr B identified a home with availability, this was not an Older Persons Mental Health Nursing Home. The Council confirmed the amount it would pay, and the extra would have to be by a third-party top-up. It would complete an NHS Checklist once Mrs C was in the new setting, but there was no guarantee she would be eligible for NHS Continuing Healthcare.
23. The Council offered another home which was an Older Persons Mental Health Nursing Home. The Council explained as care home 1 had served notice, and the notice period was expiring soon, finding a new placement was becoming more urgent. The Council suggested Mrs C might have to move to a home that could meet her needs, and then explore a suitable longer-term option possibly in Mr B’s local area.
24. Mr B requested the Council move Mrs C to his preferred care home and fund it in full. The Council agreed and Mrs C was on the waiting list for that care home, even though it was not an Older Persons Mental Health Nursing Home.
25. The Council offered another home, care home 2. This was not an Older Persons Mental Health Nursing Home. Mr B accepted this placement and Mrs C moved in. Mrs C lived there for three months; the care home then raised that it was an unsuitable placement and they could not meet her needs.
26. The Council completed a best interest meeting with care home 2 and Mr B; it had input from a medical professional. Mr B wanted Mrs C to move to an Older Persons Mental Health Nursing Home as recommended by the medical professional, he wanted her to move to his area as the travelling was taking its toll mentally and financially. Care home 2 said it could meet Mrs C’s needs in the interim. The Council decided it was in Mrs C’s best interests to move closer to her son. It was agreed, providing Mrs C’s GP confirmed she was ok to travel, Mr B would look for a care home close to him and in the meantime Mrs C would stay at care home 2.
27. Mrs C’s GP agreed she could move. Mr B found five homes, though only two of those were Older Persons Mental Health Nursing Homes. The Council wrote to Mr B advising the rate it would pay, and that if the care home was more expensive, he would have to fund a top-up.
28. The (Choice of Accommodation) Regulations 2014 sets out what people should expect from a council when it arranges a care home place for them. It says that once a needs assessment has determined what type of accommodation will best suit the person’s needs, the person will have a right to choose the particular provider or location, subject to certain conditions.
29. The council must arrange to accommodate the person in a care home of his or her choice provided:

• The accommodation is suitable for the person’s assessed needs;
• To do so would not cost the local authority more than the amount in the adult’s personal budget for accommodation of that type;
• The accommodation is available; and
• The provider of the accommodation is willing to enter a contract with the local authority to provide the care at the rate identified in the person’s personal budget on the local authority’s terms and conditions.

30. The care and support planning process will identify how best to meet a person’s needs. As part of that, the council must provide the person with a personal budget. The personal budget is the cost to the council of meeting the person’s needs which the council chooses or is required to meet. The council must ensure that at least one choice is available that is affordable within a person’s personal budget and should ensure there is more than one choice.
31. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top up fee is the difference between the personal budget and the cost of a home.
32. However, if a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if:

• The person can find someone else (a ‘third party’) to pay the top up.
• The resident has entered a deferred payment scheme with the council and is willing to pay the top up fee himself.

33. Mrs C stayed at care home 2, managed with medication, until she died. Mrs C died three months after the best interest decision that she should move closer to Mr B.
34. Mr B made a formal complaint in January 2019 and asked specific questions. The Council responded in June and did not answer Mr B’s queries. Mr B asked the Council to reconsider his complaint. The Council answered Mr B’s queries in July, six months after he first raised them.

Was there fault causing injustice?

35. Although the NHS guidelines expect a Checklist when a care home placement is required, I do not find the Council at fault in this case. That is because the assessment took place in hospital with NHS staff present, if an NHS Checklist was required, I would expect NHS staff to have taken the lead on that. In any event, there is no significant injustice that an NHS Checklist was not completed because when the NHS completed a full assessment some months later it found Mrs C was not eligible for CHC funding.
36. Although Mr B believes Mrs C was granted NHS CHC funding if she had moved to the correct setting (an Older Persons Mental Health Nursing Home) there is no evidence that was the case. The document I have seen from the NHS is that Mrs C was not eligible for CHC after full assessment. The Council told Mr B it would complete another Checklist once Mrs C moved to a new care home, but that does not mean she would have been eligible for full CHC funding.
37. There is no evidence from the Council’s records that a meeting was arranged on the date Mr B thought; despite this the Council arranged to meet him that day. I have no evidence of any other instances where a meeting was arranged and not attended, so cannot make a finding of fault on Mr B’s assertion.
38. The Council only told Mr B to look for a nursing home that could meet dementia needs, it did not tell him he should be looking for a home that could meet mental health needs. Therefore, Mr B did not have the correct information with which to source a suitable home to meet Mrs C’s assessed needs. There is nothing in the Council’s records to show why it went against medical professional’s advice for an Older Persons Mental Health Nursing Home, and how it decided a nursing home with dementia was suitable to meet Mrs C’s needs. I consider this to be fault, evidenced by the fact the two care homes could not meet Mrs C’s needs.
39. The Council did offer two suitable available placements which were Older Persons Mental Health Nursing Homes, and which could have met Mrs C’s needs. Mr B turned these down but did not have all information to hand to make an informed decision. I understand the Council wanted to work with Mr B and ensure he was happy with the placement, but in hindsight it should have completed a best interest decision at those points. The Council’s duty was to meet Mrs C’s assessed eligible care needs, and it failed to do so. The Council ended up agreeing Mr B’s preferred nursing home, but that was not an Older Persons Mental Health Nursing Home, so was not a suitable placement. We cannot remedy the injustice to Mrs C as she has since died.
40. From the time the Council completed a best interest meeting and decided it was in Mrs C’s best interests to move to the area local to her son, it was responsible to meet that need. The Council was wrong to say the rates were above what it would pay, and so Mr B would have to fund a top-up. The Council should have increased Mrs C’s personal budget to meet her need to move to that area. It should have offered at least one available suitable home to meet Mrs C’s needs that did not require a top-up. It did not do that. Instead it put finances ahead of meeting needs, and it put the onus on Mr B to try and find a suitable home and negotiate an acceptable rate.
41. The Council cannot have an arbitrary ceiling to personal budgets; it is fault to say the maximum it will pay for a care home is a set amount. This might be used as the indicative personal budget, but if somebody’s needs require a more expensive setting then the Council must adjust the personal budget accordingly and not expect family to fund a shortfall by way of a top-up. The council in Mr B’s local area was correct when contacted by the Council to say it did not have a set rate as it is individual to each person.
42. Mrs C died in care home 2 three months after the best interest meeting decided she should move closer to her son. I cannot know whether the Council would have found a suitable placement and moved her within that time, but its likely Mr B had the stress and financial burden of travelling for longer than he might have done but for the Council’s fault. Mr B also suffered distress, time and trouble, having to try and negotiate costs with care homes and wasted time looking at homes that were not suitable because the Council had not given him the full information about his mother’s assessed needs.
43. It is distressing for Mr B to know his mother was in care homes which could not meet her needs, and that could have been avoided. Mr B explains he was distressed seeing his mother’s health deteriorate, she was medicated to enable the care home to support her. Mr B feels the end of his mother’s life would have been more comfortable had she had the right support. Mr B also feels it is likely she would have lived longer. It is difficult when you live far away from a relative and have to rely on others to provide the correct support; to find the correct support was not given is very upsetting.
44. The Council’s complaint procedure is to provide a full response within 20 working days; it failed to do this. It took six months to respond to Mr B’s specific queries. This caused Mr B frustration, time and trouble.

Agreed action

45. To acknowledge the impact on Mr B, and to prevent future problems, the Council has agreed to:
1. Apologise to Mr B for failing to offer a suitable placement in his area once a best interest meeting decided Mrs C should move, for failing to explain Mrs C needed a mental health care home rather than a dementia care home, and for failing to respond to his complaint in line with its complaint procedure.
2. Pay Mr B £500 to acknowledge his distress, time and trouble.
3. Remind relevant staff that they cannot have an arbitrary ceiling to personal budgets. The set limit is a guide as to what is available within the local market but cannot be the maximum the Council will pay if someone’s needs require a more expensive setting, or a setting within that budget is not available.
46. The Council should complete the above actions within one month of the Ombudsman’s final decision, and evidence its compliance to the Ombudsman.

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Final decision

47. I have completed my investigation on the basis the agreed action is sufficient to acknowledge the fault and prevent future problems.

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Parts of the complaint that I did not investigate

48. I did not investigate Mr B’s concerns about the Council’s records casting aspersions on his character. When I spoke to Mr B about this issue, he said he had not asked the Council to amend its records, so the Council has not yet had an opportunity to deal with the concern. Should Mr B wish to pursue this the Information Commissioner’s Office is best placed to deal with concerns about data. Its website gives information about your right to get your data corrected, and how to complain.

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Investigator's decision on behalf of the Ombudsman