Summary: Mr C complains the Council did not do enough to stop a care home from closing and did not make proper transition arrangements for his daughter, Ms C, into a new care home. The Council is at fault for failing to follow due process when it was aware the care home was having difficulties. It is also at fault for failing to properly manage and plan Ms C’s transition into a new care home and offer a care home that met Ms C’s needs. Because of these failures Ms C will have to move again and the Council’s actions have caused her and her family anxiety, distress, and frustration. To remedy the complaint the Council has agreed to make symbolic payments to Ms C and Mr C, reassess Ms C and produce a detailed support plan of the care she needs in her new home. The Council will develop a policy of actions officers should take when there is a home closure, it will also share this with relevant staff.

The complaint

1. The complainant who I refer to as Mr C complains on behalf of his daughter who I call Ms C. Mr C complains the Council failed to act to prevent the closure of B, a care home run by D, the “Care Provider”. B was a Council commissioned care home. Mr C complains the Council misled him, delayed in telling Ms C about the closure, identify a suitable alternative care home; and make proper transition arrangements into the new care home.
2. Because of these failures Mr C says Ms C needlessly moved into alternative accommodation. The rush and poor transition arrangements caused Ms C anxiety and there is an ongoing failure to meet her assessed needs. The events have caused Mr C anxiety, distress, frustration, and worry.

Back to top

The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We investigate complaints about councils and certain other bodies. 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)
5. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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)

Back to top

What I have and have not investigated

7. I have not considered events from July 2023, the decision to move Ms C from Property A ( the care home Ms C moved into), and the actions the Council has taken since to find an alternative placement. This is because this was not part of Mr C’s original complaint to us and the issues are new. As stated in paragraph 5 above the law says we should give a council an opportunity to consider a complaint before we investigate. Mr C will need to make a new complaint about these issues to the Council. If he is unhappy with the outcome he can bring the complaint to us.

Back to top

How I considered this complaint

8. I spoke with Mr C and considered information he provided. I asked for information from the Council which included questions and specific documents. I considered:-
• complaint correspondence;
• Council case records;
• Care Act 2014 and the associated Care and Support Statutory Guidance;
• Managing Care Home Closures – A good practice guide for local authorities, clinical commissioning groups, NHS England, CQC, Providers and Partners;
• Council’s, “Health and Wellbeing Care Governance Protocol”;
• Adult Social Care Market Failure Protocol 2015 – 2016;
• Ms C’s assessments and support plans.
9. I made further enquires of the Council and considered the additional responses.
10. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background information

11. Ms C is autistic and has a severe Learning Disability. She needs one to one support during the day. Ms C moved into B, a five bedded residential care home in January 2006. The Care Provider ran B but a Housing Association which I will call HA, owned the property.

What should have happened

12. The Care Act 2014 says when carrying out its care and support functions for an adult, councils must promote the well-being of the individual. A key focus is on preventing or delaying needs and therefore the need for care and support. This means supporting an individual to prevent their needs escalating so that they can keep well and independent, or aiming to reduce needs and help individuals regain skills.
13. The Care Act 2014 also stresses the importance of involving individuals as fully as possible in any decisions about them and considering their view’s, wishes, and feelings.
14. “Managing Care Home Closures – A good practice guide for local authorities, clinical commissioning groups, NHS England, CQC, Providers and Partners” 2016 says councils should have:-
• Roles and responsibilities - Providers retain primary responsibility for the welfare of residents, wherever possible; care home managers and staff are expected to contribute to the smooth running of a closure procedure. A lead authority should be agreed between all partners at the earliest stage of potential closure and any statutory duties identified.
• Planning - Clear contingency plans (including checklists of actions to take) should be developed to help manage unplanned or emergency closures and when people need to be moved in a crisis.
• Co-ordination - In closure situations, the lead authority and partner organisations should arrange single, named co-ordinators (for example, to support families, arrange transport and to lead on communications, both internal and external). Partner organisations should be informed of these arrangements and:
1. people’s care and support needs, and support if making decisions on alternative placements,
2. availability and cost of alternative placements during recommissioning process.
• Communications with residents, families, carers, and staff should take place from the outset and throughout. In closure situations, a communications strategy should be quickly developed and shared with partners. This will enable them to issue a single, clear, joined-up message. This messaging will need to be co-ordinated and may become public.
15. The Council has a “Health and Wellbeing Care Governance Protocol”, the “Protocol”, which sets out what steps the Council must take to protect the safety of “customers” if there are concerns about a care provider. The Protocol says if the Council sets an “amber” or “red” flag status on a care provider then it should take the following actions:-
• have meetings with the care provider and formulate an action plan for service improvement. These meetings should take place every six weeks;
• review risks and action plans at subsequent meetings until the issues are resolved.
16. If a service is “red” flagged then it is not considered safe enough for new customers and the Council should review all existing customers.
17. The Council can place new customers in “amber” flagged services if a risk assessment is completed to ensure the provider can meet all their needs.

What happened

18. The Council says that before 2021 it, and the Care Provider hoped it could change B from a residential care home to a supported living provider. However at that time this was not possible because the HA did not agree to the change. During 2021 the Care Provider was finding it increasingly difficult to be financially viable. The Council says it tried to help by referring the Care Provider to its “High Cost Review Team” to look at ways it could make efficiencies.
19. In April 2021 a resident became terminally ill and the Council became aware there would be an imminent vacancy. In anticipation of this, the Council had assessed two people who could, when available fill the vacancy. In August 2021 due to quality concerns the Council’s, Care Governance Board “red” flagged D. This meant the Council could not place new people in B. In November due to the death of a resident a place became available but because of the red flag status the Council could not place new residents.
20. The Council moved the care home to an “amber” flag in June 2022. This meant the Council could move residents into the care home with caution. The Council says over the next few months it found it difficult to find a suitable person to fill the vacancy. This was because of compatibility issues with the residents. It told the Care Provider to approach other local authorities, a step it could have taken at any point.
21. D says it told the Council in August that it intended to stop providing support to B. It said this allowed the Council to look at alternatives including another care provider taking over. The Council says it asked the HA to extend the lease on a rolling monthly basis but it refused and would only extend for six months at a time. The Council also says it looked at other providers to take over from D but because of the lack of financial viability of B could not find an alternative provider. It therefore looked at alternative provision for the residents at B.
22. In D’s response to Mr C’s complaint it said the Council had offered extra funds so it could continue to run B to allow for extra time so residents could find alternative accommodation. D says this offer came too late as by this time it had already approached the regulatory body, the Care Quality Commission (CQC) to deregister. In response to a draft decision of the complaint the Council says the extra funds was not a long term option because of the model of care and the financial sustainability of B.
23.  
24. The Care Provider gave the Council notice of closure on 1 December and formally by way of letter on 13 December. The Care Provider agreed to write to the residents about the closure and wrote to Ms C on 11 February 2023 setting out a notice period until 31 May. It said,
25. “D have for some time being (sic) operating B at a financial loss and during our regular discussions with commissioners in Wokingham as well as with the national agenda to not place people in residential homes unnecessarily, it became clear that it was not possible for D to continue to run the home without further financial difficulties.
26. This is compounded by some of the deteriorating environmental concerns at B, the lack of facilities and the development of the site next door.
27. We therefore undertook an internal business review and have come to the difficult decision to service notice regarding all support at B”.
28. In D’s response to Mr C’s complaint it said the Council had offered extra funds so it could continue to run B to allow for extra time so residents could find alternative accommodation. D says this offer came too late as by this time it had already approached the regulatory body, the Care Quality Commission (CQC) to deregister. In response to a draft decision of the complaint the Council says the extra funds was not a long term option because of the model of care and the financial sustainability of B.
29. A social worker who I will call, Officer A contacted Mr C on 22 February and completed a care assessment on 6 March. The assessment identified Ms C:-
• enjoyed a bath at least twice a day where she could relax;
• needed familiarity and routine;
• enjoyed trips out in the car which the Motability scheme funded;
• enjoyed streaming from the internet, Mr C had installed SKY so she could do this more easily and quickly at the care home;
• needed support within the care home with other residents. This was because she became anxious when she did not know where other residents were, or if she thought they were leaving the room become distressed and try and prevent them from leaving the room. Ms C’s behaviours had worsened following the death of two of her house mates.
30. The Council records it discussed supported living with Mr C and he stated this would only be an alternative if there was a locked door policy.
31. The Council contacted twenty care providers and could not find an alternative placement for Ms C. It says that at this point the HA agreed to a rolling monthly lease extension and D agreed to provide extra support until the Council could find an alternative placement.
32. By 28 April Mr C had not heard from the Council and asked for an update. Mr C called again on 18 May where he raised his concerns about the lack of progress. Officer A advised there was a vacancy at Property A which had an ensuite but not a bath. Officer A told Mr C an Occupational Therapist (OT) would assess to see if a bath could be installed. The Council does not appear to have offered Ms C any other placements.
33. Officer A spoke to Mr C the next day. He agreed to visit Property A. They discussed:
• using a portable bath – Mr C was concerned Ms C may get used to this and then it would be difficult to change her routine to a permanent bath;
• fitting all Ms C’s furniture into her new bedroom including her piano;
• whether there was superfast broadband; and
• concerns about an unlocked external door.
34. The Council has not provided a specific separate transition plan of Ms C’s move into Property A. The case notes show a plan of two, hourly visits, on two consecutive days the week before Ms C’s move and workers from the Care Provider would continue to work with Ms C during the day until 14 June. By 25 May Mr C raised concerns about Ms C moving into the care home without a bath but later agreed to this on the basis a bath would be fitted.
35. Ms C moved into Property A on 1 June. Within a few days Property A told the Council it could not meet Ms C’s needs and she needed to move. On 5 June the Council told Mr C the OT had completed an assessment and could not fit a bath in Ms C’s room. Mr C disputed this and said it was possible. Later in the month after Property A refused to allow Mr C to install SKY (suggesting a “glass” alternative instead) Mr C said it was purposefully refusing as it knew Ms C would not be staying at Property A. He said Property A had also insisted Ms C’s piano would not fit in her room but he had managed to fit it in. The Council disputed this and said Property A were trying their best and the reason for Ms C’s move was her compatibility with other residents.
36. During the course of the complaint the HA has now agreed to change B into a Supported Living Provider with a different third party providing the care. The Council in its response to the draft decision says it will consider Ms C for any possible vacancies and whether she is compatible.

Is there fault causing injustice?

37. It is important to understand the context of Mr C’s complaint. Ms C had been living at the care home for over 16 years, has complex needs and had a settled routine. Moving would have a huge impact on Ms C as familiarity and routine are important and changes cause her anxiety, stress and can lead to physical outbursts.
38. Mr C complains the Council should have done more to stop the Care Provider from closing and purposefully did not fill a vacancy to make it more difficult for the Care Provider. The Ombudsman’s role is to consider whether there was procedural fault in the way the Council acted. I consider there was procedural fault. This is for the following reasons.
39. Firstly the Council has an overall duty to promote wellbeing. In this case the Council could have provided extra resources to the Care Provider so it could continue. This could have either been financial or by providing extra staff. However in making this decision the Council would have to consider its resources, the viability of taking such action, and any legal ramifications. The Council says it made a referral to the review team to consider whether there were any savings the Care Provider could make. This appears to be concerned with a cost saving on individual care hours. The Council has not provided any additional evidence about any specific support it provided B in either saving money or providing additional funds to support B.
40. The Council says the decision to close B was in part out of its control. While this may have been the case Ms C had lived at B for 17 years. Given the nature of her difficulties it was clear any move from her home would have a great impact on her wellbeing. The Council should have considered whether under its preventative duties it should have done more to prevent the closure of B and properly recorded the outcome of its decision making. The failure of the Council to document and properly consider its preventative duties is not in line with the Care Act and is fault.
41. Secondly the Council did not have meetings for September and October 2022 the months following D saying it gave notice. The Council says this was because of the difficulty of getting relevant people to attend meetings. This is not in line with the Protocol and is concerning especially as D says in this period it told the Council of its plan to close. Even if not all relevant officers could attend the Council should have called a meeting to discuss ongoing issues. It is unclear what actions if any the Council took to support B during this period and whether had it acted B would not have given notice as it did.
42. I cannot say on balance that had the Council taken these actions B would not have closed nor can I say on balance the Council’s decision making would have been any different. Mr C says the Council acted deliberately so B would close. While I cannot say this was the Council’s intention I can understand why, because of the faults identified above Mr C thought this was the case.
43. Mr C has the uncertainty the situation might have been different. He also has the frustration the Council has not acted transparently and followed its own protocol as it should have.
44. The second part of Mr C’s complaint concerns how the Council acted in moving Ms C. There was a two month delay before the Care Provider told residents they needed to move. It is unclear why the Council did not act earlier either to tell residents themselves or ask the Care Provider to do so. The delay in these circumstances where time was of the essence amounts to fault. It is not in line with good practice guidance detailed above nor with the Protocol which highlights the importance of early intervention and transparency.
45. The Council completed an assessment but failed to complete a detailed support plan which included what Ms C’s specific needs were. It also failed to complete a risk assessment and compatibility assessment for Property A. Both were important because of the difficulties Ms C had with other people. The lack of an early transition plan about how Ms C would be introduced to other residents and a new home is also inadequate. Access to a bath and fast internet are important to Ms C and there was inadequate time to properly consider whether Property A could meet these needs.
46. Ms C has complex needs and had lived at B for over 17 years, it was her home. The faults I have identified had a huge impact on Ms C and it has taken her some time to settle at Property A and have access to all the things she needs. These difficulties have been ongoing. Mr C and his wife have had the anxiety and worry that Ms C would not settle and that she did not have all the facilities she needed.

Back to top

Agreed action

47. I have found fault in the Council’s actions which has caused Mr C and Ms C injustice. I consider the following actions are suitable to remedy both Ms C’s and Mr C’s injustice and to improve future practice.
48. Within one month of the final decision the Council will:-
1. apologise to Ms C and Mr C for the faults I have found and the distress, anxiety, and frustration this has caused;
2. if it has not already done so complete a reassessment and detailed support plan for Ms C’s transition into her permanent home;
3. pay Ms C £1500 a symbolic payment for her distress and anxiety, over a prolonged time-period. This is higher than our remedies guidance recommends because of the serious impact the Council’s failures had on Ms C over a prolonged period of time;
4. pay Mr C £500 a symbolic payment for his time, trouble, and frustration.
49. Within three months of the final decision the Council will:-
1. produce a policy which sets out the steps officers should take when a care home is under threat of closure;
2. remind staff about the importance of communication and early intervention when there is a care home closure.
50. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

51. I have found fault in the actions of the Council which has caused Ms C and Mr C injustice. I consider the actions above are suitable to remedy the complaint. I have completed my investigation and closed the complaint on this basis.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman