Summary: the complainant says the Council failed to properly consider all views when deciding on the care plan for his mother including placement in a temporary care home. The Council accepts it did not involve the complainant in a best interest meeting and apologised. The Ombudsman finds the Council acted with fault.

The complaint

1. The complainant whom I refer to as Mr X complains the Council failed to properly assess, plan, and manage his mother, Mrs Y’s, care needs and moves between care homes.
2. Mr X says the Council failed to properly explain why it appointed an advocate for Mrs Y. Mr X also says the Council has not explained how the Council came to place Mrs Y in a failing care home from which she had to move within two months.
3. The impact on Mrs Y is significant according to Mr X who says the Council has placed her in a home some 25 miles away from her family. Mr X says the Council’s actions caused stress and anxiety because he wants Mrs Y to have a permanent placement and not face moves which are distressing for her. Mrs Y needs in his view a placement in a suitable home close to her support network.

Back to top

The Ombudsman’s role and powers

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. If 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)

Back to top

How I considered this complaint

6. In considering this complaint I have:
• Spoken with Mr X and read the information presented with his complaint;
• Put enquiries to the Council and reviewed its response;
• Researched the relevant, law, guidance, and policy;
• Shared with Mr X and the Council my draft decision and reflected on comments received before making this final decision.

Back to top

What I found

The law, guidance, and policy

7. The Mental Capacity Act 2005 sets out the framework for deciding questions about care and where someone should live for people who lack the mental capacity to make decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions. It describes when to assess a person’s capacity how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
8. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
9. 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 must consider if there is a less restrictive choice available that can achieve the same outcome.
10. Attorneys with a “Lasting Power of Attorney (LPA),” under the Mental Capacity Act may decide issues for the person who lacks capacity. An LPA may authorise the attorney to decide questions about the person’s health and welfare or their finances and property. The attorney must make decisions in the person’s best interests.
11. The Mental Capacity Act Code of Practice (the Code) sets out the circumstances for appointing an Independent Mental Capacity Advocate (IMCA). In section 5.69 the Code says an IMCA may be used to help support the person lacking capacity where “family members disagree about the person’s best interests”.
12. In Section 10.71 of the Code, it says “where a person… has an attorney or deputy who has been appointed solely to deal with property and affairs, they should not be denied access to an IMCA”
13. Care should be provided through a personal budge which can be managed by:
• A managed account held by the council with support provided in line with the person’s wishes;
• A managed account held by a third party with support provided in line with the person’s wishes;
• A direct payment to the person or their carer to use to buy in services of their choosing.

What happened

14. In September 2019, the Council assessed Mrs Y’s care needs and discussed those needs with Mr Y. The Council says three days after the assessment the Council discussed with Mr Y the choices open to the Council for providing care and support. This included the family managing the purchase of care through direct payments. The Council says this discussion ended with the family agreeing it would source support for Mrs Y.
15. The Council’s records noted that Mr X and his sister, Ms Z, shared a power of attorney to deal with financial matters (but not health and welfare).
16. On 4 October 2019, the family moved Mrs Y to a respite care home (Care Home A) without reference to the Council. The Council says Ms Z did not know of the move. Care Home A lies outside the Council’s area, so it did not have an existing contract with Care Home A.
17. The Council says Mr X asked the Council to provide a permanent residential placement for Mrs Y on 1 October 2019. In response the Council says it told Mr X it needed to undertake a further assessment of Mrs Y and seek approval of the funding needed. The Council says it needed to place Mrs Y in an assessment placement within a suitable environment. It offered eleven homes as possible settings but says the family refused them. Therefore, with Mrs Y already in Care Home A the Council decided to conduct the assessment at Care Home A. From 18 October 2019 the Council funded Mrs Y’s placement there as an assessment bed. The family had to pay a third party top up to cover the costs of this home. The Council says the family previously used Care Home A for respite care they had arranged privately in June and August 2019.
18. Without the Council’s involvement, Mrs Y returned home on 3 November 2019. The Council learned of this move on 11 November 2019. The Council proposed conducting a further assessment at the family home. However, Mr Y then told them Mrs Y had entered hospital on 19 November 2019 following a fall. The Council met with Mr X, Ms Z and Mr Y at the hospital. The Council arranged for Mrs Y to move to an assessment unit (Care Home B) on 22 November 2019. Mrs Y remained in Care Home B until January 2020 while the Council arranged a best interest meeting.
19. The Council says at the best interests meeting in February 2020 the meeting agreed a split in the points of contact for the Council . Mr X would handle Mrs Y’s finances while Ms Z would provide the point of contact for Mrs Y’s care needs and arrangements. The meeting agreed Mrs Y’s needs had increased and Mrs Y needed a placement in a residential ‘high’ care home.
20. The Council says the family disagreed on how best to meet Mrs Y’s needs. The Council says this delayed her moving to a suitable placement. When Mr X and Mr Y objected to a home offered in May 2020 (Care Home C) the Council says it offered an alternative. However, that would carry a £125 per week third party top up which the family would have to pay. The Council believed its original offer of Care Home C would best meet Mrs Y’s needs.
21. Mrs Y moved to Care Home C in May 2020. The Council had already begun an investigation into standards at Care Home C following complaints received during the previous twelve months. However, in July 2020 the Council discovered from the Care Quality Commission (CQC) that the CQC had concerns about the quality of care at Care Home C. The Council ended all contracts with Care Home C and arranged to move residents it funded to other care homes.
22. The Council contacted Ms Z on 5 August 2020 to discuss the need to move Mrs Y. The Council accepts it did not, as it should, invite Mr Y or Mr Z to share their preference for a new placement for Mrs Y. The Council has apologised for the oversight. The Council says with Care Home C deciding to close to all residents on 14 August 2020 it needed to place Mrs Y urgently in another care home. The Council had identified one it believed suitable. The Council moved Mrs Y to the placement chosen by Ms Z, Care Home D on 13 August 2020. The Council says this allowed the Council to place Mrs Y in a safe and suitable interim placement. The family could now contribute to any decisions about a longer-term placement. Mr X felt the Council had simply listened to Ms Z and excluded him, and Mr Y from the contributing to the decision to place Mrs Y in Care Home D.
23. The Council says Mrs Y’s placement in Care Home D is a temporary arrangement until it conducts a further care assessment and best interests meeting to consider the future of Mrs Y’s care. The Council says it fully intends to involve Mr Y, Mr X and Ms Z in the best interests’ decision. The Council says because Mrs Y lacks capacity it will appoint an advocate as provided for in the Care Act.
24. The Council says Care Home C’s decision to close and the CQC’s concerns ended the review it had begun. It had already inspected Care Home C’s records, had virtual meetings with Care Home C management and a virtual tour. The Covid-19 pandemic prevented visiting in person. Until it received the CQC concerns and completed its own review the Council says it did not have enough information to prevent placing Mrs Y at Care Home C.
25. Mr X says the Council has failed to properly conduct best interests’ meetings or involve him and Mr Y in some decisions made about Mrs Y’s future care. Mr X accepts some disagreement within the family. However, Mr X felt the Council gave priority to Ms Z’s choices without properly considering his views or those of Mr Y.
26. Mr X says he could not see why the Council appointed an IMCA when Mrs Y already had attorneys and Mr Y to speak for her who knew and understood her preferences.
27. The need to move Mrs Y because of concerns with the care at Care Home C so soon after Mrs Y’s placement caused Mr X concern. Mr X says the Council should have avoided this move which combined with earlier caused Mrs Y distress. The move placed Mrs Y further away from Mr X and Mr Y, and closer to Ms Z.
28. At a ‘best interests’ meeting in October 2020 the meeting agreed Mr Y would take the lead role in identifying and agreeing to Mrs Y moving to a care home closer to her home area. The Council says it will include all three family members in any best interests decision and agrees to mediate between the family should they find it impossible to agree on a new home for Mrs Y.

Analysis – was there fault leading to injustice?

29. My role is to examine whether the Council followed the correct procedure, gathered, and considered all relevant information when deciding on Mrs Y’s care. If it did not, then I must decide if that fault caused an injustice and what the Council should do to put that right.
30. Under the Mental Capacity Act and Code of Practice nobody should assume someone lacks mental capacity to make or contribute to decisions about their care and welfare. Assessments should verify if someone has capacity. The assessments conducted by the Council decided Mrs Y did not have capacity to decide where she wanted to live.
31. When deciding whether to place Mrs Y in residential care the Council needed to assess her for that care. The Council should involve all with an interest in her care, such as Mr Y, as well as her attorneys. All can offer insight from their knowledge of her philosophy and habits into what preferences she may have.
32. The Council accepts it did not invite Mr Y or Mr X to contribute to the decision about moving Mrs Y to Care Home D. While recognising the need for a speedy decision the Council should still involve Mr Y and Mrs X ‘as far as it is practicable to do so’. I have seen nothing that suggests it was not practicable to consult Mr Y and Mr X properly before the Council decided on the move. Therefore, I find the Council at fault.
33. Mrs Y needed a move urgently because of the closure of Care Home C. The fault prevented the best interests meeting considering Mr X’s objection to Care Home D’s location. It prevented consideration of Mr X’s concern about the temporary nature of the placement and involving Mrs Y in another distressing move. We can never know if these concerns would have resulted in a different decision. However, I find on the balance of probabilities Mr X’s contribution would not have prevented the move.
34. Mr X asked why the Council appointed an IMCA for Mrs Y. With Mr X, Ms Z and Mr Y occasionally disagreeing on Mrs Y’s future care the Council acted within the Code by appointing an IMCA. I find it acted without fault in doing so.
35. At the best interest meeting the Council agreed to the two attorney’s splitting roles. This did not give exclusivity to either attorney in deciding on finance and affairs or health and welfare. The arrangement aimed to reduce areas of disagreement and promote agreement. It is for the members present at the meeting to agree how to manage decisions in future. I find the Council acted without fault in agreeing this arrangement.
36. The most recent best interests meeting has agreed to Mrs Y moving closer to her home area and therefor closer to Mr Y and Mr X as well as friends and neighbours who could visit once the Covid-19 pandemic is over.
37. The Council recognises the unfortunate timing of Mrs Y’s placement in Care Home C. However, it had already begun an investigation into standards in May 2020 following previous complaints. Then the CQC issued its report and Care Home C decided to close. In starting a review of standards at Care Home C the Council acted within its compliance procedure. I find the Council acted without fault in starting that review. Events overtook it therefore it could not complete it.

Recommended and agreed action

38. To address the injustice arising from failing to invite Mr X and Mr Y to a ‘best-interests’ meeting, I recommend, and the Council agrees to within four weeks of this final decision to write to both Mr X and Mr Y with a formal apology. Within that letter the Council should also confirm it will ensure it includes all who have an interest in Mrs Y’s care in future decisions.

Back to top

Final decision

39. In completing the investigation, I find the Council at fault for not inviting everyone to the best interest meeting.

Back to top

Investigator's decision on behalf of the Ombudsman