Summary: Mr F complained on behalf of his mother, Mrs X. Mr F complained about the Council’s handling of Mrs X’s placement at Edenmore Care home (the care home) which it arranged and commissioned. The Council was not fault for how it arranged Mrs X’s placement. There was also no fault in how the care home authorised Mrs X’s urgent Deprivation of Liberty Safeguard in April 2019. The care home failed to retain Mrs X’s medication records from July 2018 until March 2019. This is fault. The Council agreed to apologise to Mr F for the uncertainty this caused him. I have not investigated Mr F’s complaints about the ongoing authorisation of Mrs X’s Deprivation of Liberty Safeguard or the Council’s best interest decision to keep Mrs X at the care home. This is because the Court of Protection is considering these matters.

The complaint

1. Mr F complains on behalf of his mother, Mrs X. Mr F complains about the Council’s handling of Mrs X’s placement at Edenmore care home (The care home) from June 2018 which it arranged and commissioned. In particular Mr F complains
1. the Council’s decision to place Mrs X at the Care home was contrary to an agreed plan to care for her at home.
2. about the Council’s best interest decision to keep Mrs X at the Care home rather than move her to an alternative placement which is the family’s preferred option.
3. The care home failed to involve the family when it authorised Mrs X’s urgent Deprivation of Liberty Safeguard (DoLS) at the end of March 2019.
4. about the Council’s decision to keep the DoLS in place.
5. Mrs X has experienced poor care throughout her stay at the care home.
2. Mr F said the Council is not acting in Mrs X’s best interests and the matter has caused both Mrs X and the wider family distress, uncertainty and time and trouble.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended). Mr F has challenged the Council’s best interest decision to keep Mrs X at the care home and the ongoing DoLS which Mrs X is subject of at the Court of Protection. This case is ongoing therefore these elements of the complaint are outside of our jurisdiction.
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)
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

9. I spoke to Mr F about his complaint and considered the information he provided.
10. I considered the Council’s response to my enquiry letter.
11. I considered comments from the care home.
12. Mr F and the Council had the opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

Relevant law and guidance

Deprivation of Liberty Safeguards (DoLS)

13. The Deprivation of Liberty Safeguards (DoLS) 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.
14. 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 for getting authorisation to deprive an individual of their liberty.
15. Without authorisation, deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. The ‘managing authority’ of the care home must request authorisation from the ‘supervisory body’ (the Council). There must be a request and an authorisation before a person is lawfully deprived of his or her liberty.
16. There are two types of authorisation. Urgent authorisations are made by the managing authority of the care home, for seven days, pending application for a standard authorisation. Standard authorisations are made by the Council.
17. When an authorisation is given, a Relevant Person’s Representative (RPR) must be appointed. The RPR’s role is to make sure decisions are made in the person’s best interests. The supervisory body must advise the RPR of the reasons for the authorisation and the duration.

Mental Capacity Act 2005

18. The Mental Capacity Act 2005 sets out five principles:
• A person must be assumed to have capacity unless it is established that they lack capacity.
• A person is not to be treated as unable to decide unless all practicable steps to help them to do so have been taken without success.
• A person is not to be treated as unable to decide merely because they make an unwise decision.
• A decision made on behalf of a person who lacks capacity must be made in their best interests.
• Before deciding, the decision maker must have regard to the option least restrictive of the person’s rights and freedom of action.
19. The Act also says the test of someone’s capacity to decide is on the balance of probabilities and is decision and time specific. When someone is making a decision on an incapacitated person’s behalf, and in their best interests, they must consider the person’s wishes, feelings, beliefs and values and those of family and friends.
20. The test of capacity involves assessing a person to see whether they can:
• Understand the relevant information including the likely consequences of making, or not making the decision.
• Retain the information.
• Use or weigh the information as part of the decision making process.
• Communicate their decision.
21. The Mental Capacity Act Code of Practice sets out the circumstances under which a council must apply to the Court. This includes when there is serious disagreement about where a person should live.
22. If the Council feels a vulnerable adult may not be able to decide about their care, it should carry out a Mental Capacity Assessment. This will assess the adult’s capacity to make a particular decision at the particular time it needs to be made.
23. Assessments of capacity to take day to day decisions or consent to care do not require formal assessment procedures or recorded documentation.

The Court of Protection

24. The Court of Protection makes decisions on financial or welfare matters for people who lack mental capacity. The court’s responsibilities include deciding whether someone can be deprived of their liberty under the Mental Capacity Act and serious disputes about where someone is living. Anybody who wants to challenge a DoLS authorisation or a best interest decision should apply to the Court of Protection if they think:
• The order may not have been authorised properly
• The authorisation is not in the person’s best interests
• The person has mental capacity.
• The decision to keep someone living in a particular place is not in that person’s best interests.

Care home standards

25. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014) set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (the CQC) has written guidance to help care homes meet these standards. As part of these, care homes need to make sure:
• They provide people with appropriate care, personalised to their needs. This includes taking account of the person’s preferences, and ensuring care and treatment is only provided with their consent. As part of this, care homes need to make sure assessments are regularly reviewed (Regulation 9).
• People are kept safe from avoidable risk and harm, and from unsafe care and treatment. This includes assessing risk and making plans to manage it. Care homes also need to make sure staff are appropriately trained, and that equipment is suitable and available (Regulation 12).
• They have a system in place to handle and respond to complaints. The provider must investigate complaints thoroughly, and take action if it identifies problems (Regulation 16).
• They securely maintain accurate, complete and detailed records in respect of each person using the service. (Regulation 17)
• They have enough suitably qualified, competent and experienced staff to make sure they can meet the standards. Staff must be given the support, training and supervision they need to help them do their job (Regulation 18).
26. The Care Act says care providers should write a care and support plan to explain how they will meet a person’s care needs. They should keep the plan under regular review and provide the care required by the plan.

Safeguarding

27. Councils play the lead role in co-ordinating work to safeguard adults. Anyone who has concerns for the welfare of a vulnerable adult should raise an alert.
28. The purpose of the safeguarding process is to:
• Find out the facts about what happened; and
• protect the vulnerable adult from the risk of further harm.
29. We will not normally reinvestigate a council’s safeguarding investigation. We can consider whether the council conducted a suitable investigation in line with its safeguarding procedures. If we find fault in how this happened we can look again at the matters covered by the investigation.

What happened

30. Mrs X is elderly and in 2016, following a period of ill health she went to live with her son, Mr F and his family. Mr F lives in a rural location on a farm. Mrs X received a package of home care which provided her with four visits per day. Mr F had Enduring Power of Attorney (EPA) for Mrs X’s property and affairs. Mrs X was assessed as a full cost payer and therefore paid for the care herself.
31. In June 2018 Mrs X experienced an episode of ill health and she was admitted to hospital. Mrs X’s admission coincided with Mr F and his wife also going into hospital for a complex procedure which meant they would both require a period of recuperation. At the time of Mrs X’s admission, her grandson, Mr G was caring for her at home in between working on the farm.
32. While Mrs X was in hospital the care agency which provided her care at home gave notice to terminate its contract. The reason given was because of the rural location of the farm and the difficulty in accessing it. Records show this was the third care agency that had terminated its contract with Mrs X since 2016, all of which cited similar reasons.
33. When Mrs X was fit for discharge, Mr F and his wife were still in hospital. A social worker met with Mrs X to discuss her situation. Mrs X agreed to move into the care home for a short period until the Council could source an appropriate package to care for Mrs X at home. The social worker considered Mrs X had the mental capacity to make her own decisions at the time. Records show the social worker contacted Mr G who agreed in the circumstances it was best for Mrs X to move to the care home. Mrs X commenced her stay at the care home in June 2018.
34. In July 2018 the care home submitted a standard DoLS application to the Council. The care home stated on the form that it was in Mrs X’s best interests to restrict her personal freedoms. The Council wrote back to the care home and said it had received exceptional numbers of DoLS applications. Therefore, it had placed Mrs X on a waiting list pending allocation to a best interest assessor and mental health assessor. The Council said it would contact the care home as soon as possible.
35. The Council’s brokerage service tried to source a home care package for Mrs X every two weeks. It also reviewed Mrs X’s contract at the care home every two weeks. As the Council were unable to source appropriate home care for Mrs X it continued to subsidise Mrs X’s contribution to her stay at the care home.
36. Records show the Council spoke with Mr F’s wife in July 2018 about the situation. It expressed concerns that it may not be possible to source home care and therefore the family should consider a private contract with the care home. Mr F said his wish was for Mrs X to return home.
37. In November 2018, a social worker and team manager visited Mrs X to review her care needs. Mrs X is recorded as stating she wanted to remain at the care home permanently. The records show the social worker decided Mrs X needed support making decisions regarding her own care needs but did not need a formal mental capacity assessment.
38. The Council contacted Mr F to advise him of Mrs X’s wishes and explained the financial implications of Mrs X staying at the care home permanently. The Council explained that Mrs X was assessed as a full cost payer. Therefore, if she stayed it would be under a private arrangement with the care home and she would need to pay the full cost. The Council also told Mr F that it had sourced a home care package of three visits per day. Mr F is recorded as stating he wanted to think about it because it was not four visits as she previously had.
39. Records show Mr F contacted the Council and said he did not think Mrs X should pay for long term residential care. Mr F said he had applied for the NHS to carry out a Continuing Healthcare (CHC) assessment on Mrs X (an assessment of whether Mrs X’s needs were primarily health needs and so should be NHS funded) and wanted to wait until the result of that before making any long-term decisions around her care. Due to the high demand for home care the Council said it had no choice but to release its offer.
40. In December 2018 records show Mr F was still waiting for the outcome of the CHC assessment. The Council told Mr F it did not think Mrs X was eligible for CHC. It reiterated to Mr F that Mrs X would need to start paying the full cost of her care at the care home.
41. The Council said during January and February 2018 it had tried to contact Mr F about the situation without any success. The Council decided that as Mrs X had expressed her wish to stay at the care home then it would stop funding it in mid-February 2019. The records show the Council thought it wrote to Mr F giving him 28 days’ notice. However, due to an administrative error it did not send the letter until mid-February which actually meant Mr F had only two days notice when he received the letter. The letter explained he would need to enter into a private agreement with the care home to continue funding Mrs X’s placement there.
42. Mr F told the Council he now wished to accept the home care package it offered back in November 2018. Mr F advised Mrs X was not eligible for CHC. He said Mrs X told him she no longer wanted to stay at the care home. The Council told Mr F the offer was no longer available but it would meet with Mrs X to review her needs and continue to try and source a suitable home care package.
43. In March 2019 the Council found a partial care offer for Mrs X at home which covered a morning and lunchtime visit by a single carer. Mr F told the Council he accepted the partial offer and said he and the family would cover the rest of Mrs X’s care until a full package was sourced. Mr F said he had paid the care home up until the end of March and so would collect Mrs X then to take her home. Mr F said he would arrange his own specialist transport.
44. Records show the Council expressed doubts that the partial offer of care was suitable and that Mr F fully understood the implications of caring for Mrs X at home. The Council carried out a review of Mrs X’s needs which included an occupational therapy (OT) assessment and a mental capacity assessment. The OT said Mrs X required two carers and advised equipment she required such as a bed and chair would take at least six weeks to order. The Council found Mrs X no longer had the capacity to make her own decisions. As Mr F did not have a power of attorney over Mrs X’s health and welfare the Council decided it was not in Mrs X’s best interests to go home and she should stay at the care home. The Council told Mr F its decision and said it would hold a best interest meeting about the matter as soon as possible.
45. At the end of March Mr F attended the care home and tried to take Mrs X home. The care home put in place an urgent DoLS to prevent Mr F taking Mrs X home without suitable care in place. Records show the care home called the police to stop the matter from escalating.
46. Following the incident at the care home in March 2019, the Council again took over Mrs X’s contract at the care home and it has paid her fees from April 2019 onwards.
47. Records show the Council’s best interest assessor (BIA) visited Mr F in April 2019 to seek his views in relation to Mrs X’s DoLS. The BIA told Mr F the Council would approve a standard DoLS authorisation. It put in place an Independent Mental Capacity Advocate (IMCA) for Mrs X and an advocate for Mr F.
48. Mr F complained to the Council in April 2019. He complained the care home had subjected Mrs X to poor care. Mr F said this included
• Failing to properly administer her medication
• Restricting her movement
• Lack of skin protection
• leaving her isolated in her room
• Failing to monitor Mrs X with fluids which leaves her at risk of choking.
• Mrs X had fallen from her specialist chair.

Mr F disagreed with the DoLS in place and said the Council did not properly consult the family about it. Mr F said the Council also failed to consult him before placing Mrs X in the care home. Mr F reiterated he wanted Mrs X back home and questioned why the Council was continuing to consult Mrs X when she had dementia and struggled understanding information.

49. The Council responded to Mr F in May 2019. It said it had raised a safeguarding concern in relation to his complaints about the standard of care Mrs X was receiving. The Council provided Mr F with a summary of Mrs X‘s care needs so he could work with an OT to understand how best to care for Mrs X should she return home. The Council said Mrs X’s advocate was in place to support Mrs X in line with the requirements of the Mental Capacity Act.
50. Records show the Council carried out a safeguarding enquiry into Mr F’s concerns about Mrs X’s standard of care. The enquiry found:
• Mrs X suffered an injury to her legs after becoming trapped between her mattress and bed sides in April 2019. The Council said it was satisfied the care home had provided care and treatment and taken steps to reduce the risk of a repeat incident.
• Mrs X was initially in a more isolated room as that was the only room available. The care home had already moved Mrs X to a more central room.
• Mrs X had fallen from her specialist chair on two occasions. The OT visited the care home and set up her chair correctly and showed two carers how to use and adjust it properly. The OT recommended using a hoist to move her into the chair for short periods during the day and at mealtimes.
• As far is it could ascertain the care home had issued medication to Mrs X as prescribed. It said Mrs X was able to express when she was in pain. It said the time of pain relief tied in with carers encouraging Mrs X to spend time in her chair.
• Carers had left Mrs X unattended with a cup of tea which was not line with her care plan which says she should be supervised. However, this was when Mr F and family were present, so the carers assumed they would provide oversight and assistance. It said there was one recorded incident of Mrs X choking however this was during a meal when she was fully supervised.
51. The safeguarding enquiry concluded that Mrs X was unaware of the risks and had no recollection of any incidents. It said the care home had appropriately responded to the risks and had taken action to reduce the risk of further incidents. It therefore closed the enquiry and took no further action. The Council explained the conclusions and results to Mr F at the best interest meeting at the end of May 2019.
52. Records show between April and September 2019 the Council held a best interest meeting each month. The notes show Mr F disagreed with the ongoing DoLS Mrs X was subject to. Mr F made it clear that his and the family’s relationship with the care home had broken down. The best interest notes record however that Mrs X was settled and happy at the care home.
53. The notes from the best interest meetings during 2019 show the Council considered various options such as 24/7 care at home and live in care at a bungalow Mrs X owned. However, Mr F is recorded as rejecting these options due to the cost.
54. In August 2019, Mr F said he had found an alternative care home, Care Home B, which was a residential care home. He said Mrs X would receive 24 hour care and it was in her best interest to move there. The Council however said Mrs X required access to nursing care and therefore care home B was not appropriate.
55. In September 2019, the Council wrote to Mr F and said it had sourced a suitable home care package which consisted of four daily visits from two carers. The Council said Mrs X would be carefully monitored by it and a community nurse. Records show however Mr F declined the package because he wanted her to move to care home B.
56. The Council consulted with care home B about the possibility of Mrs X moving there. However, records show the registered manager of care home B said it could not meet Mrs X’s nursing needs as it was a residential home and not a nursing home.
57. To date, Mrs X remains at the care home which the Council state is in her best interests. She remains under a DoLS. Mr F has challenged the DoLS and the Council’s best interest decision at the Court of Protection and proceedings at the time of writing are ongoing.
58. Mr F has remained unhappy with how the Council has handled Mrs X’s care and complained to the Ombudsman.

My findings

59. The crux of Mr F’s complaint is his disagreement with Mrs X’s DoLS in place and the Council’s best interest decision to keep her at the care home, rather than move her to Mr F’s preferred choice, care home B. We cannot investigate a complaint where legal proceedings are ongoing. I cannot investigate Mr F’s complaint about Mrs X’s ongoing DoLS or any aspects of how or why the Council have continued to authorise it. I also cannot investigate the Council’s best interest decision to keep Mrs X at the care home. The Court of Protection is currently considering these matters and proceedings are ongoing at the time of writing. So, both of these matters are outside of the Ombudsman’s jurisdiction.

Mrs X’s initial placement at the Care home

60. In June 2018, Mr F and his wife were incapacitated in hospital and unable to care for Mrs X. Mrs X’s home care provider had also terminated its contract. The Council had a duty to ensure Mrs X’s care needs were met. Therefore, it was appropriate to explore the option of Mrs X going into a care home on her discharge from hospital. The records show the social worker considered Mrs X had the mental capacity to make her own decisions and that she was happy to move into the care home. The Council therefore had no obligation to consult with anybody else although records show it did discuss it with Mrs X’s grandson, G. Therefore, there is no fault with how the Council reached the decision to move Mrs X into the care home in June 2018.
61. When Mrs X moved into the care home it applied to the Council for a DoLS for Mrs X. The Council sent the care home a letter advising it had placed Mrs X’s application on a waiting list. The Council told us this was because of a low triage score so it did not consider it a high priority. Although the Council did not progress the application any further it did not cause Mrs X any injustice because she was unaware of the application and was never subject to it. Therefore, I have not investigated this matter further. As the Council did not progress the application it had no obligation to consult with Mr F about it.

June 2018 – November 2018

62. The records show the Council’s brokerage service tried to source an appropriate home care package for Mrs X every two weeks after she moved into the care home, however it was unsuccessful. The Council covered the cost of Mrs X’s fees while it continued to source home care. On the evidence I have seen there is no fault in how the Council tried to source a home care package for Mrs X up to November 2018.

November 2018 – March 2019

63. Mrs X told the Council in November 2018 that she wanted to remain at the care home on a permanent basis. I am satisfied the Council appropriately made Mr F aware that Mrs X was a full cost payer and would need to fund the care home fees herself. I am also satisfied Mr F was aware of the financial implications. As Mrs X was a full cost payer, the Council was entitled to end its contract with the care home. However, it did not send a formal letter giving Mr F 28 days’ notice in a timely manner. Although the Council said it tried to call Mr F on multiple occasions, these attempts were not recorded and the records show they were unsuccessful. That was fault however I am satisfied Mr F was aware of the Council’s intentions and the requirement to arrange a private contract with the care home for Mrs X. The Council had explained this as far back as November 2018. So, the lack of formal notice did not cause Mr F a significant injustice.
64. Mr F has EPA for Mrs X’s finances therefore it was his responsibility to enter into a contract with the care home and to use Mrs X’s funds to pay for the care. Mr F did not enter into a contract with the care home or accept a deferred payment agreement from the Council.
65. The Council identified a partial offer of home care in November 2018, however Mr F declined this because he had applied for CHC which was ultimately unsuccessful. This was Mr F’s choice, and the loss of that offer, when he changed his mind in February 2019, was not down to Council fault.

Incident at the Care home at the end of March 2019

66. During March 2019, the Council told Mr F it had sourced a partial home care package which would enable Mrs X to move home. The Council decided based on an urgent re-assessment of Mrs X’s mental health that she did not have capacity. It also decided Mr F would not have sufficient equipment to properly meet Mrs X’s needs. The records show the Council carried out a mental capacity assessment and considered the views of the OT when it made this decision. This was in line with relevant guidance and legislation and there was no fault in how it came to this conclusion. The records show the Council left messages for and wrote an email to Mr F explaining the situation and asking him to make contact. There is no evidence he did so.
67. Records show Mr F attended the care home with the intention of taking Mrs X home. As Mrs X lacked capacity to make decisions about her own care and welfare, the care home authorised Mrs X’s urgent DoLS to prevent Mr F taking her home. This is something it was entitled to do as it believed it was a safeguarding issue if it allowed Mrs X to leave.
68. As explained above I have not investigated the Council’s decision to grant a standard DoLS authorisation because the Court of Protection is currently considering this matter.

Allegations of poor care at the Care home

69. Mr F made some specific allegations of poor care when he complained to the Council in April 2019. The safeguarding enquiry found the care home had responded appropriately and had put appropriate measures in place to prevent recurrence of these incidents. On the evidence I have seen these incidents did not cause Mrs X a significant injustice and the care home records show no repeat of similar incidents. On the evidence seen I cannot say these incidents amount to administrative fault.
70. However, the safeguarding enquiry did not adequately address whether the care home had in fact failed to properly administer Mrs X’s medication prior to April 2019. The care home was unable to find Mrs X’s medication records prior to April 2019. I have seen the care records from July 2018 onwards and they show Mrs X was prescribed medication and received pain relief at times when requested. So, although I have not seen the medication records, I am satisfied on balance that Mrs X did receive medication as required and suffered no significant injustice.
71. We do however expect a care home to retain records for at least three years and the care homes failure to locate Mrs X’s medication records prior to April 2019 is fault. It has left Mr F with an element of uncertainty about what happened during that period with her medication.
72. Although the relationship between Mr F and the care home has broken down, I cannot conclude Mrs X has been or is subject to overall poor care. I have seen Mrs X’s care records from her admission in June 2018 onwards and they show she is happy and well cared for. Her recorded weight is consistent and normal, there is no evidence of skin breakdown and she receives daily personal care.

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Agreed action

73. Within one month of the final decision the Council has agreed to
• write to Mr F and apologise for the uncertainty caused to him by the care home failing to retain Mrs X’s medication records between June 2018 and April 2019.
• remind the care home that it should keep and retain all residents care records for at least three years, or in line with its document retention schedule. It should provide the Ombudsman with evidence it has carried this out.

Final decision

74. I have ended my investigation. I have found fault and made recommendations to remedy the injustice caused by the fault.

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Investigator's decision on behalf of the Ombudsman