The Investigation

The complaint

1. Mrs X complained the Council decided to move her husband from a local care setting to one further away, without proper assessment or consideration under the Mental Capacity Act. The Council denied Mrs X an opportunity to pay top up fees for Mr X to stay local and told her to visit less often. She says the Council did not respond to her complaint until after it moved Mr X.

2. Mrs X says the Council’s decision meant she had to drive further to visit Mr X which affected the frequency of her visits. Mrs X was distressed by the circumstances around moving Mr X especially because he died six weeks after his move.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report we 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. We 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)

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. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

6. We cannot find that an organisation has breached the Human Rights Act. However, we can find an organisation at fault for failing to take account of its duties under the Human Rights Act.

Councils’ statutory duties Best interest decision

7. The Mental Capacity Act 2005 (the Act) is the legal framework for acting and making decisions on behalf of people who lack the mental capacity to make particular decisions for themselves.

8. The Act and the accompanying Code of Practice 2007 (the Code) describe the steps a person should take when dealing with someone who may lack capacity to make a decision for themselves. The Code describes when a person’s capacity to make a decision should be assessed, how to do this, and how to make a decision on behalf of somebody who is unable to make the decision themselves.

9. A key principle of the Act is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests.

10. Section 4 of the Act provides a checklist of steps that decision makers must follow to decide what is in a person’s best interests. The decision maker also has to consider if there is a less restrictive alternative available that can achieve the same outcome.

11. If there is a conflict about what is in a person’s best interests, and all attempts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Top up payments

12. The care and support planning process will identify how best to meet a person’s needs. As part of that process, the council must give the person a clear explanation of how it has assessed their ability to pay for their care and the amount of any contribution the person must pay. Financial information and advice is fundamental to enabling people to make well-informed choices about how they pay for their care.

13. A council must arrange accommodation for a client in a care home of their choice, provided:

• the preferred accommodation is suitable for the individual’s assessed needs;

• to do so would not cost the council more than it would usually expect to pay for accommodation for someone with the individual’s assessed needs, i.e. its ‘usual rate’ the accommodation is available; and

• the care home is willing to provide the care subject to the council’s usual terms and conditions. (Statutory Guidance on National Assistance Act 1948 (Choice of Accommodation) Directions 1992)

14. Where, for any reason, a council decides not to arrange a place for someone in their preferred accommodation it must have clear and reasonable justification for the decision. Councils should provide a full explanation, in writing, of their reasons for refusing an individual’s preferred accommodation. (Care and Support and After-care (Choice of Accommodation) Regulations 2014)

15. The guidance says that if an individual requests it, a council must also arrange for care in accommodation more expensive than it would usually fund, provided a third party or, in certain circumstances, the resident, is willing and able to pay the difference (to ‘top up’) between the cost of the council’s usual rate and the actual cost of the accommodation.

16. Before starting a top up arrangement councils must provide the third party with sufficient information and advice to support them to understand the terms of the proposed agreement. (Care and Support statutory guidance Annex A paragraph 53)

17. Councils should ensure that information supplied is clear. Information and advice should only be judged as clear if it is understood and able to be acted upon by the individual receiving it. (Care and Support statutory guidance paragraphs 3.19 and 3.20)

Deprivation of Liberty Safeguards (DoLS)

18. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful.

19. Once there is or is likely to be a deprivation of liberty, it must be authorised under the DoLS scheme in the Mental Capacity Act 2005. The ‘managing authority’ of the care home must request authorisation from the council.

20. The council must appoint a relevant person’s representative for every person to whom they give a standard authorisation for deprivation of liberty. It is important that the representative is appointed at the time the authorisation is given or as soon as possible and practical thereafter. When there is no relevant person’s representative the council must instruct an independent mental capacity advocate. (Deprivation of liberty safeguards Code of Practice paragraph 7.1 and 3.28)

21. If a person who is subject to a standard authorisation moves to a different care home, the managing authority of the new care home must request a new standard authorisation. The application should be made before the move takes place. (Deprivation of liberty safeguards Code of Practice paragraph 5.14)

22. The managing authority must take all practical and possible steps to ensure that the person understands the effect of the authorisation and their rights, including:

• right to challenge the authorisation via the Court of Protection;

• right to request a review; and

right to have an independent mental capacity advocate instructed.

Human Rights

23. The Human Rights Act 1998 (HRA 1998) sets out the fundamental rights and freedoms that people can expect.

24. Article 8 of the HRA 1998 says everyone has the right to respect for their private and family life, their home and their correspondence. Public authorities may be obliged to actively protect rights under this article and may interfere with these rights to protect the rights of other people or the public interest. The public authority must interfere with the right as little as possible.

How we considered this complaint

25. We have produced this report after speaking to Mrs X and following examination of the relevant documents.

26. We gave Mrs X and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

What happened

27. After discharge from hospital at the beginning of April 2023 Mr X was placed in a residential care home (Care Home 1).

28. In May 2023 the Council carried out Mr X’s combined assessment. It included DoLS authorisation and an assessment of Mr X’s mental capacity. The assessor decided Mr X lacked capacity to make his own decisions about where he should be accommodated to receive care and necessary treatment. Mrs X did not feel she could become Mr X’s relevant person’s representative. The assessor recommended appointing an independent person to represent Mr X’s best interest.

29. At the beginning of October 2023 the Council carried out Mr X’s care needs assessment. After consulting with Mrs X it decided Mr X’s eligible care needs should be met in a residential care home. The case notes show the Council reviewed the previous mental capacity assessment and agreed with the result.

30. In mid-November 2023 the Social Worker discussed Mr X’s proposed move to another care home (Care Home 2) with the Team Manager. The Council had concerns about Care Home 1 meeting Mr X’s needs as it had asked for individual support for him. The Social Worker related Mrs X’s views, who did not want Mr X to change care homes. Mrs X told the Social Worker she would be able to pay top up fees for several months. The Social Worker said the Council would not consider this a sustainable arrangement. The Team Manager satisfied herself that Mr X did not have any particular needs, which could only be met in Care Home 1. Weekly fees for Care Home 2 were over £500 lower than for Care Home 1.

31. On the same day Mrs X complained to the Council about Mr X’s proposed move to Care Home 2. She said:

• Care Home 2 was much further away and it would take her at least 40 minutes each way to drive there. She wanted to continue visiting her husband four to six times a week which would not be possible if he lived in Care Home 2;

• because of Mr X’s illness with added dementia it took him several months to settle in Care Home 1, which included getting to know the doctors and getting used to his medical treatment. He had recently been deteriorating quickly and the change in his living arrangements could upset him;

• Mr X was used to living in a quiet area, whereas Care Home 2 was by a busy road; and

• it would be harder for the rest of the family to visit Mr X if he lived in Care Home 2.

32. A day later the Council received an email from a charity worker. She said Mr X had significantly declined since the Council assessed him at the beginning of October 2023 and he should be assessed again. She reiterated Mrs X’s concerns about Mr X’s move to another care home.

33. The Council responded to the charity worker’s letter a few days later. The Team Manager said:

• the Council had assessed Mr X’s needs and decided they could be met in another care home;

• although the Council was aware Mrs X did not want Mr X to move, it also had to consider financial implications of Mr X staying in Care Home 1. There was no evidence that a move would impact Mr X’s wellbeing; and

• as Mr X would not be able to access the road, the vicinity of the busy road did not pose a risk.

34. In mid-December 2023 Mr X was transferred from Care Home 1 to Care Home 2. On the same day Mrs X wrote to the Council, expressing her distress at this action. She said the Social Worker had failed to provide her with other choices for Mr X’s residential care and had upset her by suggesting she could visit less often. She said she had not received enough information on the option of top up payments.

35. Four days later Care Home 2 asked for an urgent DoLS authorisation. The Council authorised DoLS for Mr X at the beginning of January 2024. This time Mrs X agreed to act as Mr X’s relevant person’s representative.

36. The Council responded to Mrs X’s complaint in mid-January 2024. The Council recognised it should have communicated with Mrs X better and should have held further conversations about top up payments.

37. Mr X died at the end of January 2024.

38. After contact from us, the Council sent another letter to Mrs X. It recognised it should not have moved Mr X to Care Home 2 before answering Mrs X’s complaint. The Council offered a payment of £500 for Mrs X’s time and trouble.

Analysis Fault

39. When deciding to move Mr X to Care Home 2 the Council failed to follow the process needed for a person who does not have mental capacity to decide where their needs would be met and who lives in a residential care home with DoLS in place. Specifically:

• the Council failed to take Mr X’s views into account or, if he had no mental capacity to decide on the way his care needs should be met, to take a best interest decision for him. Mrs X, as Mr X’s next of kin and informal advocate, expressed serious concerns about the impact of any move on Mr X and of the proposed move to Care Home 2. These concerns were about Mr X’s health, wellbeing and his quality of life. We have not seen any evidence the Council contacted any professionals to explore the validity of Mrs X’s claims about the likely impact of the move on Mr X’s health. The Council also failed to consider the frequency of Mrs X’s and other family members’ visits to Mr X and the impact moving him to Care Home 2 would have on the ability of family members to visit him;

• the Council failed to provide a full written explanation of its reasons for refusing an accommodation option, which Mrs X acting for Mr X, said was his preferred one. As pointed out in paragraph 14 of this report councils have a duty to provide such explanation with clear and reasonable justification of their decision not to comply with the individual’s preference for accommodation;

• the Council failed to explore robustly a possibility of top up payments for Mr X’s placement in Care Home 1. Mrs X did not receive information on the criteria applied by the Council when considering top up payments. The Council failed to assess her finances. Because of these failings the Council’s decision not to accept Mrs X’s offer of top up payments was based on inadequate evidence. The Council declined to accept top up payments from Mrs X as she had mentioned she could not continue them for more than several months. Because of the strength of Mrs X’s feelings about Mr X’s need to stay in Care Home 1 and her willingness to consider a top up payments option, the Council should have provided her with the relevant information and should have carried out an assessment;

• Care Home 2 failed to request DoLS authorisation before moving Mr X. As explained in paragraph four of this report the Council’s remains responsible for the failings of Care Home 2. The Council should not have proceeded with changing Mr X’s residential care setting without deciding that depriving Mr X of his liberty at Care Home 2 was in his best interest;

• the Council failed to appoint a relevant personal representative for Mr X after authorising DoLS for him in June 2023. Because Mrs X felt she could not act in this capacity at the time, Mr X did not have a formal representative who would protect his rights and could challenge the Council’s decisions; and

• the Council had moved Mr X to Care Home 2 before it considered Mrs X’s complaint about this decision.

40. The Council recognised it had failed to consider Mrs X’s complaint before moving Mr X to Care Home 2. This is positive, but it happened several months after the Council’s response to Mrs X’s complaint and seems to have been prompted by our involvement. We encourage councils to take responsibility for their actions by admitting when they have failed to deliver its services properly. We recommend this approach in our guide “Principles of Good Administrative Practice”.

Injustice

41. Even on the balance of probabilities we cannot say whether, if not for the Council’s failings, the Council would have decided Mr X should stay in Care Home 1. However, Mrs X is left not knowing whether the outcome might have been different if the Council had not acted with fault. This uncertainty is an injustice to her.

42. Mr X died within six weeks of moving to Care Home 2. Again we cannot say how much the move affected Mr X’s health and wellbeing and whether it may have fastened his death. However, this leaves a further uncertainty for Mrs X. Since Mr X lost his mental capacity Mrs X had represented his interests and advocated for him. The feeling that she might not have secured the best outcome for him caused her significant distress.

43. Moving Mr X to Care Home 2 before considering Mrs X’s concerns about the Council’s decision meant that it was not possible to reverse this decision, whatever the outcome of the complaint. This caused Mrs X distress as she felt ignored and not respected.

Human Rights

44. The Council’s failings show that when deciding to move Mr X to Care Home 2 the Council failed to consider the impact of this decision on Mr X’s right to private and family life. Vulnerable users of Adult Social Care Services, including people with no mental capacity to make decisions on their care arrangements, need particular protection to ensure their rights are considered and respected. Any financial considerations should not override respect for the individual’s rights.

45. The Council failed to consider the impact of its decision on Mrs X’s right to support her husband through frequent visits. Mrs X consistently told the Council it was important to her and that moving Mr X to Care Home 2 would make it impossible to continue with nearly daily visits. We have not seen any evidence the Council considered whether its decision would result in the interference with Mrs X’s right to private and family life and if so, whether the circumstances of the case justified it.

Remedies

46. Our service improvement remedies aim to ensure the Council’s process of making decisions when moving vulnerable residents to a different care setting is robust and can easily be scrutinised. This is particularly important at a time when there is a risk that financial pressures on councils may affect the way they deliver their social care services.

Conclusions

47. The Council was at fault because it failed to:

• carry out the best interest decision process for Mr X when moving him from one residential care setting to another;

• provide a full explanation in writing of its reasons for refusing an accommodation option, which Mrs X specified as Mr X’s preferred one;

• provide Mrs X with the information she needed on top up payments and assess her eligibility to use this option;

• authorise DoLS for Mr X before moving him to Care Home 2;

• appoint a relevant person’s representative for Mr X after DoLS authorisation in June 2023;

• respond to Mrs X’s complaint before completing Mr X’s move to Care Home 2; and

• have regard to Mr X’s and Mrs X’s right to private and family life.

Recommendations

48. The Council must consider the report and confirm within three months the actions it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

49. In addition to the requirements set out above, the Council has agreed to take the following actions within four weeks of the date of this report.

• Apologise to Mrs X for the injustice caused to her by the faults identified during our investigation. We publish Guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.

• Pay Mrs X £500 to recognise the injustice caused to her by the Council’s failings. This payment should be made in addition to the payment of £500 offered by the Council for its failings within the complaint handling process.

50. The Council has also agreed to take the following actions within six months of the date of this report.

• Remind the front line Adult Social Care staff and their managers of:

  • the duty to take best interest decisions when deciding care arrangements for people who do not have mental capacity and what the process should involve;

  • the right process to follow for a person who has deprivation of liberty safeguards in place before moving them to a different residential care setting;

  • councils’ duties when a person who is deprived of their liberty does not have a relevant person’s representative; and

  • the importance of having regard to a person’s right to private and family life when they are vulnerable and do not have mental capacity to decide about their care.

• Review its process for considering top up payments to ensure that when the person expresses interest in this option they are provided with the relevant information and the Council offers a financial assessment for them. The Council will provide us with the set of documents it will send to people who want to consider this option.

• Ensure that when deciding to place a person in a residential care setting which is not their preference, the Council sends a letter with a full explanation of its reasons for refusing the individual’s preferred accommodation.

The Council will provide evidence it has taken these actions.

Decision

51. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Mrs X. The Council has agreed to take the action identified above to remedy that injustice.

Print this page