Privacy settings

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

North Somerset Council (20 007 674)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 03 Jun 2021

The Ombudsman's final decision:

Summary: The Council was not at fault for how it made a best interests decision to keep Mr X in a care home. The Council was at fault for the level of support it offered Mrs X in accessing the care home. As a result Mrs X could not regularly visit Mr X. The Council has agreed to remedy the injustice caused.

The complaint

  1. The complainant, whom I refer to as Mrs X, complains about the Council’s decision making when deciding where to place her husband, Mr X.
  2. Mrs X says:
    • She cannot access the care home.
    • The Council have not looked hard enough for an alternative placement.
    • The Council did not consider her views when it decided, in July 2020, to keep Mr X in a care home she did not want him to live in.
  3. Mrs X’s says she cannot visit Mr X at his current care home.

Back to top

The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We cannot question whether an independent school admissions appeals panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider if there was fault in the way the decision was reached. If we find fault, which calls into question the panel’s decision, we may ask for a new appeal hearing. (Local Government Act 1974, section 34(3), as amended)
  4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  6. 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)
  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)

Back to top

How I considered this complaint

  1. As part of this investigation I considered the complaint made by Mrs X ad the responses from the Council. I discussed the complaint with Mrs X’s advocate. I also made enquiries to the Council and considered the information received in response. I sent a draft of this decision to Mrs X and the Council and considered comments received in response.

Back to top

What I found

Law and guidance

  1. 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.
  2. 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.
  3. When deciding 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. The decision maker must also consider:
    • the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity);
    • the beliefs and values that would be likely to influence his decision if he had capacity; and
    • the other factors that he would be likely to consider if he were able to do so. (Mental Capacity Act 2005, section 4)
  4. Councils must take into account, if it is practicable and appropriate to consult them, the views of the following persons when deciding what is in a persons best interests:
    • anyone named by the person as someone to be consulted on the matter in question or on matters of that kind;
    • anyone engaged in caring for the person or interested in his welfare;
    • any donee of a lasting power of attorney granted by the person; and
    • any deputy appointed for the person by the court.

What happened

  1. Mr X suffers with learning disabilities and dementia. He first moved into a care home for respite care in May 2019. Before this he was living at home.
  2. In July 2019 Mrs X contacted the Council to say she almost fell when walking up the slope to access the care home. The Council referred Mrs X to an Occupational Therapist who visited the site and recommended Mrs X is supported with her visits due to the slope.
  3. In July 2019 Mrs X asked the Council to look for a care home placement for Mr X which was closer to her home. The Council identified four care homes, however only one had a vacancy for Mr X, care home B.
  4. The Council carried out a best interests decision to decide where Mr X would live. The minutes from this meeting show the Council considered three options for Mr X; remaining in care home A, returning home if Mrs X could obtain a bigger flat and moving to care home B if a place became available. Mrs X did not want Mr X to remain in care home A due to issues with accessing the care home. The outcome of the best interests decision was Mr X would move to care home B if a vacancy became available.
  5. In late July 2019 care home B said it could not meet Mr X’s needs. The Council looked to see if any other care home vacancies were available for dementia care near to Mrs X, however none were. The Council also referred Mrs X to a physiotherapist in relation to her accessing care home A and discussed with her to possibility of using another entrance to access care home A.
  6. In August 2019 Mrs X visited another care home, care home C, to see if it was suitable for Mr X. There were no vacancies available, however Mrs X and the Council agreed it was suitable for Mr X. The Council followed up with care home C in October and November 2019 but there were still no vacancies available.
  7. In October 2019 the Council said Mrs X was assessed by the physiotherapist. The Council were waiting for the results of this to see if it could make arrangements for Mrs X to access care home A.
  8. The physiotherapist sent their findings to the Council on 24 December 2019. This said Mrs X could access care home A with support from her carer and using her four wheeled walker. However she required the assistance of two carers to descent the ramp.
  9. In December 2019 care home C confirmed it could not meet Mr X’s needs. Mrs X contacted the Council to say she was unhappy Mr X is still in care home A. In early January 2020 the Council contacted 12 care homes to see if a placement was available for Mr X. There was one placement available however, it was for a care home where there were safeguarding concerns concerning residents with learning disabilities. The Council did not consider this care home appropriate due to concerns about other service users with learning disabilities at the home.
  10. On 15 January 2020 the Council visited Mrs X at home. Mrs X told the Council she wanted Mr X moved to somewhere she can access so she can visit him when she wants to. On 27 January 2020 Mrs X told the Council it was impossible to visit Mr X due to the ramp at care home A.
  11. In January 2020 Mr X’s social worker met with him at care home A where it was noted he had settled well. The social worker also visited Mrs X to discuss a suitable place where she could meet Mr X as Mrs X was having difficulty accessing care home A. Throughout January and February 2020 the social worker attempted to arrange suitable meetings between Mr X and Mrs X, however this was not possible due to issue with Mr X leaving care home A and Mrs X accessing care home A.
  12. At the end of February 2020 the Council agreed to organise a best interests meeting for Mr X around his current accommodation. This was initially scheduled for early April 2020 but was cancelled due to the Coronavirus pandemic. The Council also started, in March 2020, discussing with care home A and Mrs X’s carers the possibility of using video calls to help them to see each other. This was put in place in early May 2020.
  13. Mrs X spoke with the Council on 13 May 2020 and told the social worker she wanted Mr X moved from care home A as it is difficult for her to visit him due to the ramps at care home A. On 20 May 2020 Mrs X spoke with a social worker who told her after the Coronavirus pandemic she can visit care home A with Mrs X to see if there is an easier route into the building, as walking up the ramp is difficult.
  14. The Council held a best interests meeting for Mr X on 21 July 2020 where it considered whether to make his placement at care home A permanent or move him to a home closer to Mrs X. Prior to this the Council carried out a capacity assessment and decided Mr X did not have capacity to make decision about his care.
  15. The notes from the best interests meeting show Mr X was unable to express his views but the feedback from Mr X’s advocate and team leader at care home A shows he has settled into care home A. The best interest meeting discussed the pros and cons of remaining at care home A. The main con was Mrs X’s reluctance to visit Mr X at care home A. The outcome of the best interests meeting was that it was in Mr X’s best interest to remain in care home A.
  16. Care home A also suggested once the lockdown eased in relation to care home visiting, care home staff could collect Mrs X from her home and bring her up for lunch with Mr X once a week for six weeks. After this Mrs X could get a taxi up to the gates and care home staff could meet her on the road side and assist her into the building safely.
  17. Mrs X spoke with the social worker on 22 July following the best interests meeting. Mrs X was unhappy with the decision to keep Mr X in care home A. The social worker explained the difficulties in finding a different care home for Mr X and the affect moving him would have. The social worker explained it would be possible for her to use a wheelchair to access care home A.
  18. Mrs X complained to the Council on 6 August 2020 with the assistance of her advocate. Mrs X said the Council did not take into her account her views and wishes when it made a Best Interest decision to keep Mr X at care home A. She is unable to access care home A due to the slope up to it.
  19. The Council responded to the complaint on 2 September 2020. The Council said:
    • It referred Mrs X to a physiotherapist to assess her needs in accessing the care home. The assessment identified Mrs X could access the care home with the assistance of carers and her wheeled walker.
    • After the first Best Interests Meeting, the final decision was Mr X could move to care home B. However care home B later said it could not meet Mr X’s needs. The Council said it has looked for alternative placements for Mr X but none have been available which were suitable for his needs.
    • At the July 2020 Best Interests meeting Mrs X’s advocate represented her views and everyone at the meeting was aware Mrs X wanted Mr X moved nearer to her. The outcome of the meeting was that all the professionals and Mr X’s advocate agreed remaining at care home A would be in his best interests as he is settled and doing well.
    • It decided to keep Mr X at care home A based on the views put forward by his advocate and the views of all the professionals involved. It considered the lack of options available to Mr X and that his stability and health is not put at risk by moving him.
    • It would work to help Mrs X see and speak to Mr X regularly and care home A has confirmed it will collect Mrs X and take her to visit Mr X. Once the Covid restrictions are lifted the Council will work with Mrs X and care home A to facilitate face to face contact.
    • It has considered Mrs X’s views and tried to find a care home nearer to her and easier for her to visit but this has not been possible due to a lack of availability of homes which could meet Mr X’s needs and the risk of Mr X’s declining health.
  20. Mrs X responded to the Council with the assistance of her advocate on 18 September 2020 and asked the Council to consider her complaint at stage two of its complaints process. Mrs X said:
    • She disagreed the physiotherapist properly assessed her as the physiotherapist did not meet her or observe her being assisted into care home A.
    • She believes Mr X would be settled anywhere and is not convinced he is happy at care home A.
    • She would like the Council to review the decision to keep Mr X in care home A.
  21. On 6 October 2020 the Council provided its final response. The Council said Mrs X can access the care home with assistance. If she has concerns about the physiotherapist she can complaint to the health provider who carried out the assessment. The Council reiterated its position that it had explored other care homes, but none could meet Mr X’s needs. It said it made the Best Interests decision in line with guidance and legislation.
  22. A social worker visited Mrs X on 8 October 2020 to discuss the support around visiting Mr X. Mrs X said she cannot safely access care home A and did not receive a physiotherapy assessment. The social worker agreed to follow this up and speak with care home A.
  23. On 16 October 2020 the Council carried out a placement review of Mr X. The feedback was Mr X was doing well at care home A. He has good relationships and is putting on weight. He also accesses the community in a minibus once a week. Mrs X is unable to currently visit him due to Covid 19 restrictions. The Council also contacted Mrs X to inform her about the placement review. Mrs X said she still wanted Mr X moved and would take things further.
  24. In December 2020 the Council explored further options for Mrs X to visit Mr X at care home A. Due to the Covid restrictions the only option was a window visit within care home A’s main porch area with no physical contact. The Council agreed with the care home the video calls between Mrs X and Mr X should continue to take place.

Analysis

  1. In relation to the Best Interests decision to keep Mr X at care home A, in July 2020, we can only look at whether there was administrative fault in the decision making process. We cannot say whether Mr X should remain in care home A or not.
  2. The records from the Best Interests meeting, in July 2020, show the Council considered whether to keep Mr X at care home A or move him to an alternative care home. The records show the Council considered the pros and cons of each option which included Mrs X’s views about care home A, whether care home A met Mr X’s needs and the complications with moving him to an alternative care home. The records also show the Council considered what Mr X’s likely view would be about remaining in care home A, if he had capacity. This is in line with the law and I do not consider the Council at fault for the way it made the Best Interests decision to keep Mr X in care home A.
  3. The Council has also shown it has looked for alternative placements for Mr X. After carrying out a Best Interest meeting in July 2019, the Council decided to look for an alternative placement for Mr X. The Council tried to find an alternative placement but the two care homes it said Mr X could move to both later confirmed they were unable to meet his needs. The Council then consulted with a further 12 care homes in January 2020, shortly before the Coronavirus pandemic, but none of these care homes had availability for Mr X. I am satisfied the Council adequately looked for an alternative placement for Mr X after he moved into care home A, but was unable to secure somewhere suitable.
  4. Mrs X has continually told the Council she cannot access care home A due to the ramp leading up to its entrance. Mrs X first reported this to the Council in July 2019. At this stage the Council referred her to a physiotherapist and said it would look at whether she can access the care home from an alternative entrance.
  5. The physiotherapist did not complete an assessment until October 2019 and the results of this were not confirmed until the end of December 2019. In relation to Mrs X using a different access there is no further record of the Council exploring this option. Given that Mrs X was unable to see her husband due to her not being able to access care home A because of the ramp leading up to the entrance, I would have expected the Council to have provided assistance to Mrs X sooner. This is fault. Mrs X was unable to access care home A after July 2019 and could not visit Mr X.
  6. From January 2020 the Council did explore ways Mr and Mrs X could meet in the community, however none were successful and no such meeting took place. In March 2020 restrictions came into place because of the Coronavirus pandemic. Mrs X would have been unable to visit Mr X even if she could access care home A. I do recognise the Council sought to put in place measures so Mr and Mrs X could see each other via video link.
  7. Since the complaints procedure the Council has met Mrs X to explore ways she can visit Mr X. Care home A has said it can assist Mrs X to visit Mr X for a period of 6 weeks. It is unclear however, what arrangements are in place for Mrs X to visit Mr X at care home A.
  8. Mrs X also complained the physiotherapist did not meet her when carrying out the assessment, in October 2019, and she felt the assessment was inadequate. Mrs X therefore felt unsafe negotiating the ramp up to care home A with assistance. The Council has not addressed this in its complaint response and told Mrs X to complain to the care service who provided the physiotherapist. As the Council contracted the physiotherapist to carry out an assessment of Mrs X it should have addressed her concerns about the assessment. This is also fault.
  9. Had the Council looked into Mrs X’s concerns about the physiotherapy assessment it would have been able to see if this was in fact carried out properly.

Back to top

Agreed action

  1. Within one month of my final decision the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
    • Apologise to Mrs X for the faults identified.
    • Pay Mrs X £500 to recognise the distress she experienced at being unable to visit Mr X and the time taken by the Council to attempt to put in place measures to assist her.
    • Contact Mrs X and confirm with her what arrangements exist or will be put in place to help her visit Mr X.
    • Look into Mrs X’s concerns about the physiotherapy assessment to ensure this has been completed properly and there is a safe way she can access the care home.

Back to top

Final decision

  1. I have completed my investigation on the basis there was fault by the Council which caused Mrs X injustice. The Council has agreed to the above recommendations to remedy the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page