Summary: Miss C complains that the Council said it would move her daughter, Miss D, to a care home closer to the family home when a place became available but refused to do so. The Council was at fault for poor communication with Miss C. This fault caused injustice as Miss C was distressed when the Council did not move Miss D. However, the Council could not move Miss D as it had found it was not in her best interests to do so.

The complaint

1. The complainant, Miss C, says the Council is at fault for:
1. Telling her, before her daughter, Miss D, moved to a care home 25 miles from their home, that it would move her to a nearer home when a place became available,
2. Delay in carrying out a “Best Interest Decision” after Miss C found a care home closer to her home which had a spare place for Miss D, and
3. Refusing to move Miss D to the closer home after deciding the move would not be in Miss D’s best interest.
2. Miss C says this caused injustice to Miss D because Miss C and her family cannot travel to see her as Miss C does not drive. She also says Miss D’s best interest is not being met at the home.
3. Miss C says she wants the Council to move Miss D closer to home so she can see her friends and family.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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. If we are satisfied with an organisation’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

7. I spoke to Miss C. I wrote an enquiry letter to the Council. I considered all the information I had gathered and wrote a draft decision.
8. Miss C 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

What should happen

9. Councils have a duty to arrange care and support for those with eligible needs.

The Mental Capacity Act 2005

10. 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.

Mental capacity assessment

11. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

12. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
13. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

14. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
15. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

Best interest decision making

16. A key principle of the Mental Capacity Act 2005 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 interest. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interest.

What happened

17. Miss C lives in the Council’s area. She has a daughter, Miss D, who has severe learning difficulties and health problems. Until 2019, she lived at home with Miss C who has her own health problems. Miss D does not have capacity to make decisions in her own best interest.
18. In 2020, the country was locked down because of the COVID-19 pandemic. Miss C found it increasingly difficult to provide the care Miss D. In early 2020, she asked the Council for help. Initially, Miss C wanted a care package involving assistance at home and/or short stays in care for Miss D to give Miss C a break. However, due to COVID, both these services were severely affected.
19. By August 2020, Miss C was at “breaking point”. The evidence shows the Council looked for care in its area but found none as capacity was reduced during the pandemic. Eventually, in September 2020, it found a place at a care home, Home 1, approximately 25 miles from Miss C’s house. It had a good rating from the Care Quality Commission and experience in dealing with Miss D’s conditions.
20. Miss C agreed to the placement but asked the Council to agree to move Miss D to a nearer home when a place became available. The Council agreed. After a delay to agree funding, Miss D moved into Home 1 in November 2020.
21. Miss D settled in at Home 1. It seems she was happy with the facilities. Her needs were met and she seemed content.
22. In February 2021, Miss C identified another care home, Home 2, which was closer to home and, she believed, could cater for Miss D’s needs. She contacted the Council and asked it to move Miss D to Home 2. The Council contacted Home 2 in March 2021. It said a room would be available in May 2021.
23. The Council stayed in contact with Home 2 and, in late May, representatives of Home 1 and Home 2 met to discuss a possible move for Miss D. A Council officer, Officer O, said there would have to be a best interest decision before Miss D could move.
24. Because Miss D lacks capacity to make decisions in her own interest, she needed an independent mental capacity advocate (IMCA) to represent her at any best interest decision meeting. In mid-June, the Council emailed Miss C to tell her the Council was looking for an IMCA. Miss C told the Council she wanted the move to take place as soon as possible.
25. The Council contacted a national charity which agreed to provide an IMCA. However, in September, it told the Council it had lost the application. This caused a significant delay. Home 2 continued to keep a room available for Miss D.
26. The IMCA visited Miss D in mid-November 2021. She found Miss D was happy and settled and so it was in her best interest to stay at Home 1.
27. A Council officer made a best interest decision in late December 2021 that Miss D should stay at Home 1 but decided not to tell Miss C until the new year as he “did not feel it appropriate to call on Christmas Eve”. He told Miss C of his decision on 10 January 2022. Miss C complained to the Council.
28. The Council responded in late February 2022. It said, among other things, that:
1. Miss C had agreed to Miss D’s move to Home 1.
2. The Best interest decision of December/January 2021/2 took “an inordinate amount of time to complete”.
3. Miss D could not move to Home 2 because it had been found not to be in her best interest.
4. Contact from Home 1 about Miss D had been somewhat inadequate at first.
29. Miss C complained to the Ombudsman. She focused her complaint on the points set out in paragraph 1 above.
30. In 2022, the Council has made a further best interest decision that Miss D should stay at Home 1. It says it has also kept the matter under review and will move Miss D if it is in her interest to do so.

Was there fault causing injustice?

Undertaking to move Miss D

31. The Council was at fault for telling Miss C in November 2020 that it would move Miss D to a home nearer to home as soon as a place became available. This was not a commitment the Council could make as there would have to be a best interest decision before any move was made. The Council should, therefore, either have refused to make such a commitment or told Miss C that it would do so providing this was found to be in Miss D’s best interest. This was fault.
32. This fault caused Miss C injustice as she was, and remains, understandably frustrated by the fact that, despite the Council’s undertakings, Miss D remains at a Home 25 miles away. She does not drive and public transport is inadequate.
33. This fault was compounded when, in May 2021, a Council officer told Miss C that Miss D would soon be moved to Home 2.
34. This fault clearly caused injustice to Miss C who believes, rightly, that the Council has broken a commitment it made to her.
35. However, I cannot say that Miss C would have rejected the place at Home 1 had the Council told her that Miss D would only be moved after a best interest decision. She was, after all, at breaking point, and there were no closer alternatives available. Therefore, I cannot say that this is an injustice arising from Council fault. The evidence suggests Miss D is well cared for at Home 1.

Delay

36. Miss C has complained that the Council is at fault for delay in taking its best interest decision. I do not uphold this part of the complaint.
37. Miss C says she first told the Council about Home 2 in February 2021. I accept that this was the case. However, Home 2 told the Council that it would not have a room available until May 2021. Therefore, any delay before that point was not the Council’s fault.
38. Further, delay after that point was caused by the failure of the mental health charity to provide an IMCA. It lost the Council’s request. I cannot find the Council at fault for the failures of the charity.

Failure to move Miss D

39. Miss C says the Council should have moved Miss D as it had agreed to do. I do not agree. Given that Miss D lacks capacity to make decisions in her own best interest, the Council could only move her if this was considered by those responsible to be in her best interest. But the IMCA said it was in Miss D’s best interest to stay at Home 1.
40. I understand Miss C does not agree with that decision but I cannot find fault for that reason. For me to find fault, there would have to be some flaw in the way the decision was made. I have seen no such fault. The decision maker considered the relevant facts, including Miss C’s wish for Miss D to move closer to home, and found that the move was not in Miss D’s best interest.

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Agreed action

41. The Council has agreed that, within four weeks of the date of this decision, it will:
1. Send a written apology to Miss C,
2. Provide information to all staff that they cannot make similar commitments in similar circumstances in future, and
3. Write to the Ombudsman to confirm it has complied with a) and b) above.

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Final decision

42. I have decided the Council was at fault. The Council has accepted my recommended remedy for the injustice caused. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman