Summary: Ms X complained the Council delayed dealing with her sister Miss Y’s request to move care homes. The Council was at fault. It failed to properly consider Miss Y’s preferences and failed to provide any suitable alternative options to meet Miss Y’s needs. It failed to acknowledge Ms X was not willing to support her sister long term. This caused Ms X and Miss Y uncertainty and frustration and placed Ms X under significant strain as she had to care for her sister far longer than she expected to. The Council has agreed to apologise to Ms X and Miss Y and make a payment to recognise the impact the faults had on them. It has also agreed to progress Miss Y’s move to a care home as soon as possible.

The complaint

1. Ms X complained the Council delayed dealing with her sister Miss Y’s request to move care homes. In addition, the Council failed to deal with Ms X’s complaint properly. This caused Ms X additional strain in caring for her sister and caused both sisters upset, worry and distress.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I considered the information provided by Ms X and discussed the complaint with her on the telephone. I considered the Council’s response to my enquiries and the relevant law and statutory guidance.
5. I gave Ms X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

Assessment and care planning

6. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
7. The Care and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs and their carers. Where local authorities have determined that a person has any eligible needs, they must meet these needs.
8. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should make sure the process is person-centred and must consider the individual’s preferences. The council may reasonably consider its own finances and budgetary position. However, the council should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes.
9. Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months.

Choice of accommodation

10. The (Choice of Accommodation) Regulations 2014 (SI 2014/2670) sets out what people should expect from a council when it arranges a care home place for them. It says that once a needs assessment has determined what type of accommodation will best suit the person’s needs, the person will have a right to choose the particular provider or location, subject to certain conditions.
11. The council has to arrange to accommodate the person in a care home of his or her choice provided:
• The accommodation is suitable for the person’s assessed needs;
• To do so would not cost the local authority more than the amount in the adult’s personal budget for accommodation of that type;
• The accommodation is available; and
• The provider of the accommodation is willing to enter a contract with the local authority to provide the care at the rate identified in the person’s personal budget on the local authority’s terms and conditions.

Carer’s assessment

12. Where an individual provides or intends to provide care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment. Carer’s assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
13. Where the local authority is carrying out a carer’s assessment, it must include in its assessment a consideration of the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

Mental capacity

14. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular 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 for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
15. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
• because he or she makes an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

What happened

16. Miss Y is in her fifties and has a learning disability and some physical health issues which affect her mobility and coordination. Miss Y uses a four wheeled walker to move around. She lived at care home A for around four years and attended the day services it provided. Miss Y had previously lived with her elderly parents and preferred living with older adults. Miss Y also stayed with her sister Ms X every other weekend.
17. In May 2019 Ms X contacted the Council to advise Miss Y no longer wished to attend day services. She also raised concerns about the care provided at the care home and said she was looking for an alternative care home. Ms X was also concerned Miss Y had not had a care review since 2016. A Council officer visited Miss Y who said she did not like the day services and did not want to attend.
18. In June 2019 care home B contacted the Council to advise Ms X had visited and was keen for Miss Y to move there. An officer telephoned Ms X who confirmed she wanted Miss Y to move to care home B. Ms X said care home B was closer to where she lived and more suitable to meet Miss Y’s needs. The Council agreed to carry out a review of Miss Y’s needs. The Council explained if Miss Y needed a move this would need to be considered by the younger adults’ accommodation panel who would consider the best option available which the Council considered was affordable and suitable to meet Miss Y’s needs. The Council asked an Occupational Therapist (OT) to assess Miss Y’s independent living skills to help to establish the appropriate accommodation for Miss Y.
19. Later that month the Council’s accommodation panel refused the request for Miss Y to move to care home B. The team manager from the community learning disability team told Ms X the panel wanted the team to complete a review and reassessment of Miss Y. Care home B was more expensive than care home A and it wanted the team’s view of care home A and of Miss Y’s needs.
20. In early July an officer carried out an assessment of Miss Y’s needs. Ms X asked to see the reviewing officer without the care home management present as she was concerned Miss Y would be reluctant to speak in front of the manager. The officer agreed to see Miss Y and Ms X first before meeting with the manager. Ms X raised concerns about the food offered to Miss Y, the lack of activities and Miss Y not being regularly bathed. The officer then met with the care home manager. The needs assessment identified Miss Y had eligible needs in most areas and required support for between seven and eight hours a day. She needed support throughout the day to meet her basic needs with continuous background support. She would be unsafe left alone without support for long periods. The officer produced a support plan which set out Miss Y’s needs could be met by residential care or supported living accommodation.
21. In July 2019 an OT carried out an assessment and noted a decline in Miss Y’s functioning since she was last assessed in 2014. They made some recommendations relating to personal care, eating and drinking, mobility, for more planned activities and to ‘consider a move from current accommodation with a fresh start to incorporate the recommendations made above’. The notes of the visit record the OT suggested the option of a supported living bungalow to Miss Y but Miss Y was not interested. The OT also raised a safeguarding concern with the Council about care home A. The concerns included issues around the provision of food and fluids, the personal care provided to Miss Y, Miss Y’s care plan was out of date, issues with Miss Y’s en-suite and a lack of security when they entered the home. The Council also noted the Care Quality Commission (the inspector of care homes) rated care home A as requiring improvement and the Council’s own Quality and Market Management Team (who monitor the social care providers used by the Council) had concerns about the care home and was carrying out extra monitoring.
22. Ms X asked the Council not to contact care home A about the safeguarding as she was concerned this may have a negative impact on Miss Y’s care.
23. In July 2019 Ms X wrote to the accommodation panel setting out her concerns about the care provided at care home A and the positives of care home B. The team manager asked the accommodation panel for permission for Ms X to visit a supported living placement so she could see the benefits if Miss Y chose to move there or if a best interest decision was made. On the form they ticked Miss Y did not have the capacity to decide where she lived but did not answer the question which asked if a capacity assessment had been completed. They noted Miss Y did not have high needs and could manage basic personal care and toileting and could feed herself. They noted Miss Y could share support and did not need much 1:1 care. The panel had some concerns about the suitability of the supported living placement. Depending on the outcome of the capacity assessment and potential best interest decision it recommended liaison with the housing with support team to look at what alternative supported living was available.
24. In late July 2019 Ms X took Miss Y on holiday. After the holiday Ms X contacted the Council to advise Miss Y did not want to return to care home A. Ms X told the Council Miss Y could stay with her until her new accommodation was arranged.
25. A social worker telephoned Ms X about the safeguarding referral. The social worker advised they wanted to complete a mental capacity assessment and had also made a referral for an advocate for Miss Y. Ms X questioned why an advocate was needed when she could and did support Miss Y. Ms X confirmed she was happy for the safeguarding to be investigated now Miss Y was no longer staying at the care home. She requested a copy of the needs’ assessment and the outcome of the July accommodation panel. The social worker advised that the panel had recommended a visit to a supported living accommodation and a mental capacity assessment of Miss Y. Ms X agreed to view the suggested supported living placement. However, the visit did not go ahead as the Council had concerns about its suitability given Miss Y’s needs and the needs of other residents.
26. The social worker met with Miss Y and Ms X in August 2019 to carry out a mental capacity assessment (MCA) regarding Miss Y’s capacity to decide where she lived. The social worker noted during the assessment that Miss Y often looked at Ms X to finish what she was saying. They noted Miss Y’s main focus was getting the activities she liked while Ms X worried more about how she was cared for. Miss Y told the social worker she had visited care home B and wanted to live there. However, Miss Y agreed if she was able to look at other options that also had activities she would consider them. The social worker asked about supported living but Miss Y said she would not like this option and felt she would prefer a residential setting. The social worker also asked Miss Y if she would consider living with her sister. Ms X said this was not really a long-term option. She had Miss Y stay every other weekend but would not commit to having her living with her. During the meeting they also discussed the safeguarding issues.
27. The social worker visited a second time to complete the MCA. Miss Y told the social worker she liked to be around lots of people and to have space to move around. The social worker discussed different options with Miss Y, including supported living and living with a family (such as through a shared lives scheme). The notes record Miss Y was very clear she wanted to live in a residential setting.
28. The social worker recorded on the MCA form that Miss Y could understand the information relevant to the decision and could communicate a decision but they did not consider she could use or weigh the information to make a decision. They noted this was difficult to assess as Miss Y kept looking to Ms X for support and was fixated on going to care home B. They had used a balance sheet to support Miss Y to identify the positive and negative points of different accommodation placements and Miss Y could not think of anything positive about supported living or shared lives and could not think about anything negative about residential living.
29. In August 2019 the social worker agreed with the Team Manager to send a further request to the accommodation panel stating a preference for care home B. They also advised it had been difficult to get a true reflection of Miss Y’s wishes and feelings. This was because she looked to Ms X to answer questions for her, which made it difficult to assess her capacity. They recommended an advocate meet with Miss Y without Ms X. They also suggested to Ms X that she had a carer’s assessment to identify any difficulties she faced having Miss Y live with her and ‘evidence the reasons you are unable to care for her on a longer term basis and my manager would like me to complete a home visit to see how [Miss Y] is managing at your home and any issues for you both’. They said their manager wanted Ms X and Miss Y to visit a short breaks unit which could provide activities for Miss Y and who could care for Miss Y on a regular basis. In late August 2019 the Council sent Ms X a copy of the care and support assessment and support plan.
30. In August 2019 the team manager updated the accommodation panel. They noted the capacity assessment and safeguarding process were ongoing and the social worker would try and arrange an advocate and for Ms X and Miss Y to visit the short breaks unit. On the form for the accommodation panel they noted Ms X would not allow a referral to an advocate. They noted the social worker thought Miss Y had capacity to decide where to live but the team leader believed the assessment showed Miss Y lacked capacity to use and weigh up information about options because she did not state any positive factors in relation to supported living. They reported Ms X did not allow a discussion about Miss Y continuing to live with her. The team leader noted on the form their view that it was in Miss Y’s best interests to remain living with Ms X and to have regular breaks at the short breaks unit. They noted there was no evidence of Ms X being unwilling or unable to house Miss Y as she was doing it already and had not provided any evidence of this causing any difficulty. They noted the social worker would offer Ms X a carer’s assessment.
31. On the form they noted the other options considered which included shared lives. They noted Miss Y did not want to live with a family, which would be too quiet, nor did she want supported living which Miss Y said would not have activities on site. Miss Y also reported she did not like going to day services and preferred shorter activities in residential care homes so if she chose not to take part she could go to her room. They noted the social worker would arrange for Ms X and Miss Y to visit the short breaks unit. ‘This will help delay the decision on residential care’.
32. Ms X complained the Council was frustrating the process of finding Miss Y a new home and had failed to properly consider her views. In particular:
• there was a lack of needs assessments in previous years;
• a failure to provide Ms X and Miss Y with a copy of the recent needs assessment;
• the Council was trying to push Miss Y to supported living against her wishes, it was continually pushing for Miss Y to live with Ms X when Ms X made it clear this was not an option; and
• the social worker had said Miss Y had capacity and then changed their view.
33. Ms X asked that the case be transferred to another community learning disability team.
34. Ms X emailed the team manager to ask the reasons for the panel’s refusal of care home B and asked what alternative was being proposed given Miss Y did not want to live in supported living or shared lives but wanted to continue to live in a care home with older people. Ms X said they had visited the short breaks unit but Miss Y did not like it. She noted the social worker had mentioned the possibility of Miss Y living permanently with Ms X but Ms X was not willing and able to do that and asked that her wishes be respected. She added she did not want a carer’s assessment. She noted that at the end of the meeting the social worker had said that on the balance of probabilities Miss Y had capacity to make the decision about where she wanted to live. She asked therefore what the next steps would be as the continued uncertainty was causing Miss Y unnecessary stress and worry.
35. The social worker emailed Ms X in late August 2019. They reported the accommodation panel had not given permission to go ahead with care home B and they ‘wondered if you would like me to talk to the manager of the supported living team to discuss what other possible suitable options may be available?’
36. The team leader sought internal advice. The team leader considered Ms X was willing and able to care for her sister. They said they had offered supported living and shared lives but these were turned down. They were willing to create a support plan with one-to-one support to give Ms X a break. They said if Miss Y returned to care home A they could fund activities. They asked if they could write and inform Ms X the evidence was that she was willing and able to care for Miss Y and they would offer an assessment of Miss Y’s needs.
37. In mid-September the social worker liaised with the team leader with a view to looking at what other care homes were available in the area. I have seen no evidence that any care homes were considered.
38. Ms X complained again to the Council in mid-September 2019. She said the needs assessment was wildly inaccurate and they were not involved at all in the production of the support plan. She said Miss Y was not asked about any of the matters covered in the assessment and it appeared to be a rehash of old documents without any input from Miss Y or consideration of Miss Y’s views.
39. In September 2019 the Council completed the safeguarding enquiry about care home A. It found general issues with poor security and paperwork management at the home. There was poor record keeping relating to an injury Miss Y had and in relation to professionals’ visits. There were issues around bathing Miss Y. Any risks to Miss Y were removed as she no longer lived there and the Council’s Quality and Market Management Team were dealing with the other issues.
40. The Council responded to Ms X’s complaint in late October 2019. It apologised for not conducting an annual review in 2017 and 2018 and for the delay in providing her with a copy of the needs’ assessment. It agreed to reallocate Miss Y’s case to another community learning disability team and to request they conduct a more thorough review of the assessment and support plan. It said the accommodation panel accepted Miss Y wanted to live with older people in a quiet environment and supported Miss Y’s move from care home A. However, it required the team to consider all the available options so an informed choice could be made. It accepted communication between the panel and assessment teams such as the community learning disability teams was not as good as it should have been and its responses should have been clearer.
41. In November 2019, a social worker from the second community learning disability team visited Miss Y and Ms X to reassess Miss Y’s care needs. They assessed Miss Y needed support for between 11.5 and 12 hours a day. Ms X refused to complete a carer’s assessment. She considered it intrusive and said she had made it clear she was not willing or able to care for Miss Y and Miss Y was only staying with her temporarily until new accommodation could be found.
42. In mid-December the social worker visited again to complete the support plan for a move to care home B. The social worker advised they needed to complete a capacity assessment around Miss Y’s capacity to move to residential care. This was completed in January 2020 and the social worker decided Miss Y had the capacity to decide to move to residential care. Under ‘can the person use or weigh the information to make a decision’, they noted Miss Y had experienced living at home with her parents, with her sister and in a residential home. She was able to weigh up the information and say which she preferred. She repeatedly stated she wanted to live with old people and to make new friends in an old people’s home.
43. In March 2020, the accommodation panel agreed Miss Y could move to care home B. A move date of late April 2020 was proposed. However, given the outbreak of the COVID-19 pandemic, the social worker asked Ms X if she wanted Miss Y to move during this time given the risks it may expose Miss Y to. They also advised Miss Y would need to spend two weeks in isolation when she moved in. Ms X considered it best for Miss Y to remain with her until the situation became clearer.
44. In February 2021 Ms X contacted the Council for an update on progress with the move to care home B. At the current time Miss Y remains living with Ms X.

Findings

45. In the complaint response to Ms X the Council accepted it had not reviewed Miss Y’s care needs in 2017 and 2018. This was fault. Had the Council done so it may have become aware of Ms X’s concerns much earlier.
46. The Council was not at fault for wanting to carry out a reassessment of Miss Y’s needs when Ms X first requested that Miss Y move to care home B. The Council is responsible for meeting Miss Y’s eligible needs and it needed to be satisfied the move was appropriate.
47. When the Council carried out a new needs assessment and produced a support plan it was not person-centred. When the officer met with Miss Y and Ms X the discussion centred around the issues with the care provided at care home A and not Miss Y’s care needs. The assessment did not properly consider Miss Y’s wishes and feelings and did not accurately reflect all her care needs. This was fault.
48. Miss Y was very clear she wanted to continue to live in residential care. Miss Y had spent four years living in a care home. She knew what to expect and another care home was her preferred option The Council was not at fault for considering other options but the support plan set out that Miss Y’s needs could be met by supported living or residential care. When Miss Y was clear she did not want to consider supported living the Council failed to progress the option of residential care and this was fault.
49. Ms X had identified an alternative care home, care home B, for Miss Y in June 2019. Care home B was significantly more expensive than care home A. The Council accepted care home A no longer suitable for Miss Y. In deciding whether to support the move to care home B the Council was entitled to consider the cost. However, it did not explore whether another care home option may be available which would meet Miss Y’s needs at lower cost. Instead, it continued to suggest other options which Miss Y did not want to consider and did not propose any other suitable alternatives which could meet Miss Y’s needs and were available. This was fault.
50. After the holiday with Ms X, Miss Y did not want to return to care home A so Ms X agreed she could stay with her. That was Ms X’s choice. However, Ms X made it clear this was a temporary arrangement while the move to care home B was arranged.
51. The Council acted appropriately when it offered Ms X a carer’s assessment which she refused. Had Ms X agreed to an assessment it would have enabled the Council to consider what additional support it could provide whilst Miss Y lived with her. However, Ms X chose not to pursue it as she was willing to provide a temporary short term stay but not to provide full time permanent care. Ms X was clear throughout she did not want Miss Y to live with her permanently or to be Miss Y’s carer on a permanent basis.
52. Ms X repeatedly expressed she was not willing or able to support Miss Y long term. The Council repeatedly sought evidence of why this was the case. This was fault. Ms X did not have to ‘prove’ she did not want to care for her sister. She repeatedly asserted it was a temporary arrangement. The support plan identified Miss Y’ s needs should be met in supported living or residential care. The Council sought to discuss the option of Miss Y living with Ms X as part of the mental capacity assessment when Ms X had made it clear it was not open for debate. The team leader also considered it was in Miss Y’s best interest to remain at her sister’s. This was fault. It was not for Miss Y to choose whether she wanted to live with her sister but for Ms X to decide whether she was willing to provide the support on a permanent basis and she was not.
53. The Council wanted to involve an advocate as it was concerned Miss Y was not able to give her view. There was no evidence Ms X was not a suitable representative for Miss Y. There was no evidence Ms X was not acting in Miss Y’s best interests. When the Council discussed the use of an advocate with Miss Y she did not want one. She was satisfied Ms X represented her views. The insistence on involving an advocate was fault.
54. When the social worker carried out a mental capacity assessment in August 2019 they advised Ms X that Miss Y had capacity to decide where to live. They changed their view following discussion with the team leader and when they completed the MCA form. In particular, they considered Miss Y did not have capacity to weigh information to make a decision. This seems to be because Miss Y did not provide any positive comments about supported living or shared lives or any negative comments about residential care. I am concerned that the Council decided Miss Y did not have capacity because she was unwilling to consider other options than residential care. If the Council considered Miss Y did not have capacity to make a decision about where she should live it should have held a best interest meeting. It did not do so and that was fault. Following a reassessment in January 2020 it later decided Miss Y did have capacity and agreed to support Miss Y’s move to care home B.
55. The Council’s complaint response did not address all the issues Ms X raised which added to her frustration.
56. Ms X chose to allow Miss Y to stay with her while a new placement was sorted. However, Miss Y has stayed far longer with Ms X than either of them originally anticipated. If not for the Council fault it is likely Miss Y would have moved by Autumn 2019 at the latest and long before the start of the COVID-19 pandemic. This has had a significant impact on Ms X who has had to meet Miss Y’s care needs long term even though she did not want to do so, placing her under significant strain. Miss Y has had her care needs met but Is not living in a place where she wants to be. She has had reduced contact with other people, a lack of social stimulation and the uncertainty has caused her distress and frustration.

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Agreed action

57. Within one month of the final decision on this complaint the Council has agreed to apologise to Miss Y and pay her £300 to acknowledge the frustration and uncertainty caused to her. It has also agreed to apologise to Ms X and pay her £2,000 to acknowledge the frustration caused to Ms X and the additional strain placed on her in caring for Miss Y for significantly longer than she anticipated.
58. The Council has agreed, as soon as possible, to progress Miss Y’s move to care home B. If this is no longer possible it should seek, within three months, to identify a suitable alternative care home placement to meet Miss Y’s needs.
59. Within three months of the final decision, the Council has agreed to:
• Review its processes to ensure it reviews the care needs for all adults, at least annually;
• Remind relevant staff of the need to ensure a person-centred approach to care planning and, in particular, that where an adult refuses a certain type of care, it considers alternatives without delay;
• Remind relevant staff that a carer is entitled to say they do not wish to care for someone on a long term basis and this should be respected;
• Consider whether staff need additional training on carrying out mental capacity assessments to ensure these are carried out in line with the law and guidance.

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Final decision

60. I have completed my investigation. There was evidence of fault by the Council causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman