Summary: Mrs Q is making a complaint for her son (Mr H) who lacks mental capacity and, for a time, lived in assisted living accommodation which was funded and commissioned by the Council. The accommodation, as well as Mr H’s care and support, was managed by Stallcombe House (Care Provider). Mrs Q says the Care Provider wrongly gave notice for Mr H's placement to end with immediate effect and for reasons she had not been told about earlier. She explains the Care Provider never told her of any incidents leading to the decision to give notice. We found fault by the Care Provider for the way it gave notice which caused Mrs Q distress. We also found Mr H’s care and support fell below the Care Quality Commission’s fundamental standards which caused him harm. As the Council is responsible for the commissioned placement, we have made recommendations that it remedy the injustice caused.

The complaint

1. The complainant, who I refer to as Mrs Q, is making a complaint for her son (Mr H) who has care and support needs. The Council maintains a care and support plan for Mr H and provides him with aided living accommodation. Until early 2022, Mr H lived at accommodation run by Stallcombe House (“the Care Provider”) and paid for by the Council. Mrs Q says the Care Provider ended Mr H’s placement with immediate effect, without serving notice or consulting with the Council or his social worker. Mrs Q says the Care Provider lied about why it decided to end Mr H’s placement with immediate effect.
2. In summary, Mrs Q says the loss of Mr H’s care placement has had a significant impact on his mental and physical health (including worsening his heart condition). She also explains that Mr H suffered serious upset and distress as he could not say goodbye to his friends and girlfriend. Mrs Q makes the point the Care Provider’s actions breached Mr H’s human rights.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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).
5. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended).
6. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended).
7. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although we may find fault with the actions of the service provider, we will make recommendations to the council.
8. 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

9. I have read Mrs Q’s complaints to the Council and Ombudsman. I have produced this report following examining relevant files and documents and sending enquiries of the complainant and relevant employees of the Council. I have also considered applicable legislation, guidance and policy. I provided the complainant and Council with a confidential draft of my decision and invite their comments. I also asked the Council to invite comments from the Care Provider. The comments received were taken into account before my decision was made

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My findings

Background and legislative framework

The Care Act 2014

10. Some people need extra care or support, practical or emotional, to lead an active life. The need for social care may arise when a person becomes frailer with age as one example. A care and support plan is a detailed document setting out what services will be provided by the local authority. It also explains how it will meet the person’s needs, when they will be provided, and who will provide them. A care and support plan should be reviewed regularly by the local authority.
11. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. Once a needs assessment has been completed, the Care and Support (Eligibility Criteria) Regulations 2014 are used to identify the needs which must be met by a council. Where a council has determined a person has eligible needs, it has a legal duty to meet these needs, subject to certain financial criteria.

Fundamental standards of care

12. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards. The fundamental standards include:
1. Person-centred care: Mr H must have care and treatment that suitable to him and meets his needs and preferences.
2. Duty of candour: The Care Provider must be open and transparent with Mr H and those with responsibility for him about his care and treatment.
3. Safety: Mr H must not be given unsafe care or treatment or be put at risk of harm that could be avoided.
13. The CQC is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences. Under our information sharing agreement, we will share this decision with the CQC.

Equality and human right duties

14. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to private and family life. This legal framework requires all local authorities, and other bodies carrying out public functions, to respect and protect individuals’ rights.
15. The Equality Act 2010 provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. It offers protection, in employment, education, providing goods and services, housing, transport and the carrying out of public functions. It makes it unlawful for organisations’ carrying out public functions to discriminate on any of the nine protected characteristics. They must also have regard to the general duties aimed at removing discrimination under the public sector equality duty.
16. We cannot decide if an organisation has breached the Human Rights Act 1998 or the Equality Act 2010 as this can only be done by the courts. But we can decide whether or not an organisation has properly taken account of an individual’s rights in its treatment of the service user.

The Mental Capacity Act 2005

17. This legal framework sets out the principles for working with people who lack capacity to make a particular decision. The five key principles are:
1. Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
2. People must be given all practicable help before anyone treats them as not being able to make their own decisions.
3. Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
4. Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
5. Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.
18. The Mental Capacity 2005 Code of Conduct provides detailed guidance about decisions made for a person who lacks capacity. These must be done, or made, in that person’s best interests. Central to best interest decision making is the need to consult properly and with other people for their views about the person’s best interests.

Chronology of events

19. Mr H moved into assisted accommodation with the Care Provider in August 2019.
20. In February 2022, the Care Provider telephoned Mrs Q and emailed the Council to give notice that Mr H’s placement would be ending with “immediate effect”. It gave the following reasons for giving notice:
1. Mr H had been presenting challenging behaviour because of his complex care and support needs. The Care Provider said this included him causing frequent injuries to himself and staff members.
2. Issues of staff retention and that existing staff were no longer willing to work with Mr H. The Care Provider said this meant it could not safely meet Mr H’s care and support needs.
21. The Care Provider recognised it had not given proper notice for the placement to end. On the same day, it gave four weeks' notice. Both Mrs Q and the Council told me they had not been notified of any incidents involving Mr H or the Care Provider’s circumstances before the notice. The Council immediately began the process of seeking an alternative placement for Mr H, though experienced difficulties with identifying one which was suitable for his needs.
22. In early April 2022, the Care Provider emailed the Council to say that it was now unable to maintain Mr H’s care plan safely. The Care Provider said it could not accommodate him any further. The Council’s documented view is that Mr H’s needs and presentation had not changed significantly since moving to the placement. It said the Care Provider was offered the support required to meet Mr H’s care and support needs safely.
23. In mid-April 2022, Mr H moved from his placement with the Care Provider and moved into respite care where he remains.
24. In late April 2022, Mrs Q made a formal complaint to the Care Provider about how notice was given. This led the Care Provider to undertake an internal review into the decision to give notice for the placement to end. The Care Provider said the internal review found:
1. There were 59 recorded incidents during the last 12 months which were similar in nature. This included self-harm, environmental aggression, harm to others and aggression to care.
2. It would have been better if the Care Provider had advised the family more fully before serving notice.
25. The Care Provider later wrote to Mrs Q to provide an apology for not communicating as well or as fully as it should have to Mrs Q, the Council or Mr H. However, The Care Provider maintained it was right for it to give notice. Dissatisfied with the response, Mrs Q escalated her complaint, though the Care Provider did not consider there was anything further to comment on.

My assessment

Organisations acting on behalf of the Council

26. Importantly, Mrs Q has been clear her complaint is against the Care Provider, as opposed to the Council as the commissioner of the assisted living placement. She says the Council has provided a good service and has worked with her well to positively manage the alleged failings under difficult circumstances. However, when the Council commissions care services on its behalf, it remains responsible for those services and for the actions of the organisation providing them. The Council commissioned the Care Provider to provide assisted living accommodation consistent with Mr H’s care plan. Therefore, where I find fault with the actions of the Care Provider which causes an injustice, my recommendations to remedy this will be made to the Council. I cannot make recommendations to the Care Provider as its services were not privately funded.

Ending the agreement with immediate effect

27. I found a Service Level Agreement (SLA) between the Council and Care Provider governed Mr H’s care placement. This acts as a legal contract for Mr H’s placement and the SLA contains clauses about notice periods. This includes:
1. Any party can end the agreement after giving four weeks’ written notice of their intent to do so.
2. The Care Provider can end the agreement if the service user becomes a danger to themselves, staff or other residents. The Care Provider must give the Council seven days’ written notice of its intent to do so.
3. If the Care Provider and Council do not agree to end the agreement, the Council will try to resolve any differences. It will suggest strategies to prevent the end of the agreement. It will also set a date by which differences must be settled, failing which the agreement will end.
28. The Care Provider is free to end the placement. However, the SLA does place a focus that reasons are provided for the notice. There should also be open dialogue so that ending the placement is a last resort. The Care Provider must also never fall below the CQC’s fundamental standards when giving notice or ending the placement. At first, the Care Provider gave notice to the Council for the placement to end “with immediate effect”. This is inconsistent with the SLA and I note an internal review by the Care Provider accepts this notice was wrong. The Care Provider then gave notice the same day by giving four weeks’ notice. I find fault in the way the Care Provider first gave notice. Though it realised its mistake, this approach shows the Care Provider was not acting with due regard to Mr H’s needs and rights as a vulnerable service user with complex needs.

Reasons for the notice

29. The Council and Mrs Q say the Care Provider did not report any of the problems it has referred to before providing notice. The Care Provider accepts it did not communicate as well or as fully as it should and that its concerns should have been raised at an earlier stage. The internal review by the Care Provider outlined there were 54 incidents of challenging behaviour over the last 12 months before notice was given. These related to self-harm by Mr H, aggression and safety concerns for staff and other residents.
30. The reasoning behind the notice is enough for the Care Provider to give notice, though it causes serious concerns about the provision of care and support Mr H received. This was the first time the Council was made aware of the incidents and concerns. In my view, this means the Council lacked enough information to reach an informed view of whether it agreed or disagreed with the decision to give notice. That was the result of fault by the Care Provider. However, I found that both parties ultimately did not explore whether more could be done to prevent the placement from ending. This is the expectation outlined in the SLA and so I do find fault. This was, however, largely due to the Care Provider failing to properly consult with the Council when problems occur.

Ending the agreement with four weeks’ notice

31. The SLA states the Care Provider may give seven days’ notice where the service user becomes a danger to themselves or others. This was the felt concern by the Care Provider and it is unclear why four weeks’ notice was given in light of the circumstances. Giving longer notice was not fault in itself, but it added to the general continuation of concerns about safety and person-centred care. In particular, I have read the Care Provider’s correspondence to the Council towards the end of the four-week notice period. The Care Provider explained matters with Mr H had become “critical” and it could not support Mr H or provide him safe care.

The duty of candour

32. The Care Provider owed a duty to be open and transparent about Mr H’s care and treatment. By the Care Provider’s own description of the severity of the events, these incidents should have been reported. It should have engaged with the Council about the serious concerns and perceived risks, as well as Mrs Q who has power of attorney for Mr H. However, there was no engagement by the Care Provider on these issues before notice being served. The Care Provider did not comply with its duty of candour under Regulation 20 and this was fault.

Providing person-centred care

33. The Care Provider’s care and treatment must be suitable and meet the needs of Mr H. It says that incidents meant staff were not willing to work with Mr H which meant it could not safely meet his needs. If the incidents, which the Care Provider says were long-standing, were harmful to Mr H’s care and treatment, it should have consulted with the Council and Mrs Q much sooner. The evidence shows Mr H’s care and treatment was being impacted. This was avoidable had there been proper engagement. The Care Provider did not comply with its duty to provide person-centred care under Regulation 9 and this was fault.

Safety and harm

34. The Care Provider must not put the service user at risk of avoidable harm The Care Provider says Mr H had been self-harming over the referred to 12-month period. Mr H lacks mental capacity and cannot decide what care he needs, or safeguard himself against the risk of harm. The Council is responsible for meeting Mr H’s care and support needs and Mrs Q is legally entitled to be consulted and make best interest decisions on his behalf. Those with the authority and means to act and prevent the harm were not notified and therefore denied the opportunity to safeguard Mr H. The Care Provider therefore created an environment which was fundamentally unsafe for Mr H which caused him harm. This was avoidable and the Care Provider’s failure to tell others put Mr H at risk of further harm. It is concerning that staff were not willing to work with Mr H meaning he was likely left causing harm or being at risk of this without suitable support. The Care Provider did not comply with its duty to provide safe care and treatment under Regulation 12 and this was fault.

Human rights, equality and capacity duties

35. The Care Provider did not consult with Mrs Q who has authority to make decisions for Mr H about his care. This was a failure to follow the principles of the Mental Capacity Act 2005. This is because the Care Provider prevented informed decision making in the best interests of Mr H. The evidence shows a lengthy period of Mr H displaying harmful behaviours the Care Provider could not manage. This meant the treatment, care and support was not adequate to his needs and put him at risk of further harm. The Care Provider is required to have regard to the Code of Conduct and consult others to enable best interest decisions. The Care Provider prevented this consultation so I find fault.
36. The Council has a legal duty to consider or think about how decisions relating to the provision of care affect Mr H as a disabled person lacking mental capacity. Giving notice for the placement with immediate effect shows a lack of regard to Mr H’s best interests as a person with no mental capacity. I am however satisfied the Council acted to secure alternative accommodation for Mr H when it became aware of the issues and so do not find fault in the way it managed a placement transition. Only a court may decide whether the Care Provider discriminated against Mr H because of his disability.
37. The Human Rights Act 1998 includes the Convention right that everyone has the right to respect for their private and family life, and home. Mr H did not have security of tenure at his place of living with the Care Provider. The Care Provider has always retained the right to give notice. However, this convention right extends to Mr H’s personal life, his home and ability to forge friendships and plan to keep social relationships. The Care Provider giving notice with immediate effect shows no real observation to this Convention right. This was fault, but any injustice was remedied by the Care Provider quickly giving longer notice.

Injustice to the complainants

38. Central to Mrs Q’s complaint is that Mr H lost his home because of the Care Provider giving notice. I recognise this is not what Mrs Q had hoped for, but this was not a permanent placement and the Care Provider was entitled to give notice. The fault in how notice was given, but this does not undermine the Care Provider’s right to end the agreement. It cannot therefore be said that the fault caused an injustice to Mr H due to his need to move from his home.
39. That said, the Care Provider has described a set of events where Mr H both suffered harm and was likely to suffer further harm over the course of a year. It says there were 54 incidents during this time which meant it could not keep Mr H safe from self-harm and provide care and treatment which could meet his needs. I recognise self-harm is a risk posed by Mr H’s behaviours which he has no control over. Regardless, the care provided must be suited to the needs of the individual. There is a clear link between the Care Provider’s failings to notify and consult and their ability to identify solutions. This prevented the Council and Mrs Q reviewing care needs and adopting measures which could meet need and safeguard Mr H from harm. I therefore consider the harm, as noticed by the Care Provider, was preventable and caused Mr H an injustice.
40. I cannot assess the precise harm caused to Mr H. I recognise Mrs Q has given specific details of a decline in Mr H’s health, but only a court can make a determination of personal injury resulting from negligence. I am however proposing that a financial payment be made to serve as an acknowledgement that harm was caused. This has been considered with due regard to the vulnerability of Mr H and the time harm occurred. Also, I consider Mrs Q has suffered distress and uncertainty because of the fault identified. She is Mr H’s power of attorney and was whom the Care Provider’s duty of candour was owed to. She had a right to be kept informed with important information about Mr H. This did not happen and she suffered an injustice because of this.

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Agreed action

41. To remedy the fault and injustice identified in this statement, the Council has agreed to perform the following action within one month this decision statement:
1. Provide Mrs Q with a written apology which addresses each area of fault and injustice identified. The Council will invite the Care Provider to provide its own written apology to Mrs Q at its earliest opportunity.
2. Pay Mrs Q £1,000 to serve as an acknowledgement of the harm and risk of further harm to Mr H, as well as not meeting his care needs safely for a time. Because Mr H lacks mental capacity, this payment is to be made to Mrs Q with the intent that it be used for his benefit.
3. Pay Mrs Q £200 to serve as an acknowledgement of the distress and uncertainty she and her family have been caused by the fault identified.
4. The Council will invite the Care Provider to undertake a review, at a senior level, within three months. The review will focus on why the Care Provider did not notify the Council or Mrs Q of the large number of incidents over a 12-month period which meant falling short of the Fundamental Standards. The purpose of the review is to identify and implement measures which can prevent an injustice to other service users, as well as demonstrating compliance with the Fundamental Standards.
42. The Council will provide us with evidence it has complied with the above actions.

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Final decision

43. I found fault by the Care Provider for the way it gave notice for the placement to end which lacked consideration for Mr H’s interests or equality rights. Though the Care Provider could give legitimately give notice means the impact to Mr H was limited, though it did cause Mrs Q deep distress and uncertainty. I also found Mr H’s care and support fell below the CQC’s fundamental standards which caused him harm and placed him at risk of further harm. I made recommendations that the Council, as the commissioner of the placement, remedy the injustice caused. It has agreed to these, as well my findings.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman