Summary: There was fault by the Council and the care provider acting on its behalf because it failed to do enough to protect Mr Y from financial abuse. There was not fault in how the Council made sure Mr Y’s care needs are met, or in how it helped him choose his current accommodation. The Council is not responsible for the consequences of theft, but its failure to adequately protect Mr Y has caused him and his family distress. The Council has agreed to apologise to Mr Y and his family and pay £500 to him in recognition of the distress it has caused.

The complaint

1. Miss B complains on behalf of her uncle, Mr Y about how the Council has handled aspects of his care. In particular, Miss B says the Council:
• Wrongly reduced Mr Y’s care provision and did not effectively monitor the care he was receiving or that his needs were met;
• Did not properly consider where Mr Y should live; and
• Failed to protect Mr Y from financial abuse or give him the help he needed to deal with his finances.
2. Miss B says that as a result of the Council’s failings, Mr Y is in a nursing home that cannot meet his needs and he spends long periods in bed with no activities and little physiotherapy. Miss B says that in his previous accommodation, Mr Y was not fed properly and was not getting the personal care to meet his assessed needs, which has left him less mobile than he would have been. Lastly, Mr Y’s finances were not protected and a carer stole large sums of money from him.

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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 have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves, or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
5. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (section 26A or 34C, Local Government Act 1974)
6. 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

7. I considered the information provided by Miss B and discussed the issues with her. I considered the information provided by the Council including its care planning records, its case notes and its correspondence. I also considered the law and guidance set out below. Both parties have had the opportunity to comment on a draft of this statement. I have taken these comments into account before reaching a final decision.

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What I found

The law and guidance

8. Residents’ wishes and preferences about the care home they go to (as set out in Chapter 8 of the Care and Support Statutory Guidance, and Annex A) have to be taken into account but not necessarily satisfied. Various conditions are included in the regulations which have to be met:
• the preferred accommodation must appear (to the council) to be suitable to meet the person’s assessed needs;
• it must be available;
• the person in charge must provide the accommodation subject to the council’s usual terms and conditions (in practice this means at the fee the council sets); and
• it must not cost the council more than it would usually pay for that sort of accommodation, catering to that person’s assessed need – although the council cannot reject a care home on cost grounds before a viable alternative is found.
9. 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.
10. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
11. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out:
• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?
12. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
13. Regulation 13(2) says that care providers must have robust procedures and processes in place to prevent people using its service, being abused by others. Abuse includes the theft of money or property.

Mr Y’s care in his previous accommodation

14. Mr Y is in his 70s. He is autistic and has poor physical health. He lived in extra-care housing. This is housing with care, so that Mr Y had his own flat but received care on site to meet his needs. The Council has been arranging Mr Y’s care since 2010, and since 2018, this was delivered through a care provider, Westminster Homecare Ltd.
15. At the time Westminster Homecare took over, his care plan notes that he was unable to mobilise independently and was reluctant to use a walking aid. He had communication difficulties and restricted thought patterns and behaviours. He needed help with personal care routines, including showering safely and dressing appropriately. He was doubly incontinent and his carers needed to clean him, his bedding, his clothing and his flat daily. Mr Y could not prepare meals or snacks and his carers did this in the morning and evening. He had a history of self-neglect and found it hard to go out.
16. Miss B says Mr Y’s care had deteriorated since 2018, but she did not know about this until 2020. In August 2018, the Council case notes say that Mr Y could not tolerate changes to his routine, and was reluctant to interact with others at the extra-care housing. It says his health was deteriorating and he was talking about residential care, although the Council had not discussed that with him yet.
17. In September 2018, the manager of the extra-care housing told the Council she had grave concerns and that Mr Y had not always received the correct personal care. Her staff had found that Westminster Homecare had not changed his incontinence pad and Mr Y was lying on a saturated towel. They changed his pad and found he was sore around his groin. There had been mistakes by the carers with Mr Y’s medication. The Council called a meeting with Westminster Homecare and addressed the mistakes with the medication.
18. In November 2018, the Council reviewed Mr Y’s care plan with Westminster Homecare to make sure it was meeting his needs. Mr Y told the Council he was happy with his care. The extra-care housing manager told the Council that Mr Y would call her staff for help. Later that month, the extra-care housing manager told the Council that the carers had again not changed Mr Y’s pad and he had missed medical appointments. The Council looked into the medical appointments and made sure these were followed up.
19. At the next care plan review in January 2020, Mr Y again told the Council he was happy with his care. The extra-care housing staff raised no concerns. Westminster Homecare said that the morning call could be reduced from three to two hours. The reduction in hours happened in April 2020. At that time the care provider again made a mistake with Mr Y’s medication.
20. Miss B says Westminster Homecare was not meeting Mr Y’s care needs. She says the Council knew his needs were not being met and his health deteriorating, but did not act. Miss B sent me some extracts from the extra-care housing provider’s case notes. These show that as well as the mistakes with the medication, there were incidents of his pad not being changed and his bathroom left in an unhygienic state, and that these became more frequent between November 2019 and January 2020.
21. Although the extra-care housing staff raised some concerns, the Council’s regular reviews of Mr Y’s care suggest that it ensured that Mr Y’s care needs were met by the care provider. The notes suggest there were no sores on his body. There was no fault by the Council here in how it made sure Mr Y’s needs were met.
22. However, there was fault by the care provider acting on the Council’s behalf, in that it did not properly administer medication: it was not always recorded properly, it was not always given on time, and once it was given twice. The Council investigated what had happened each time, and Westminster Homecare addressed these issues. There is no basis for me to recommend it does more to remedy this part of the complaint.

Mr Y’s placement at the nursing home

23. In July 2020, Mr Y was admitted to hospital. He had suffered a heart attack and during his recovery, Mr Y was placed temporarily in a nursing home for rehabilitation. However, as he needed two carers together to provide care, it was decided that he could not return to his extra-care flat. The intention was that Mr Y would stay at the rehabilitation home temporarily while the Council assessed his needs and decided, together with him, where he should live.
24. At the beginning of October 2020, the Council held a meeting to decide where Mr Y should live. Mr Y, his brother, his nephew, Miss B and two Social Workers (SWs) from the Council attended. I have read the notes of the meeting. Miss B told the meeting that the manager of the current home had said that Mr Y needed a home with a dementia specialism to keep him safe and offer the right kind of support.
25. The meeting discussed two alternative places, Home One and Home Two, but did not consider whether he should stay in his current home. The Council sought the family’s views and Home One had confirmed it could meet Mr Y’s needs and had a place for him. The family said they would consider Home One, and the Council said it would apply for funding for Mr Y’s physiotherapy to continue at the new home. After the meeting, the Council’s SW spoke to Mr Y about these options with his advocate. Mr Y said he would prefer to stay in his current home.
26. In November, the Council completed a mental capacity assessment to check whether Mr Y had capacity to decide where he should live. The SW gave Mr Y photographs of the current home, and the two other options. He asked if he could stay in the current home. He said he liked it and the people were nice. Mr Y clearly chose the current home over Home One, which he remembered having stayed at before and where he had been happy. Mr Y told the Council he had told Miss B that he wanted to go to Home One. Mr Y said he knew nothing about Home Two. He told the Council several times, that it was ‘better the devil you know’.
27. The Council made clear to him that he would get the same kind of care at the other two homes. He said he was happy with the level of care he was getting at the current home. The Council told Mr Y’s nephew that he had chosen to stay at the current home.
28. The Council concluded that on the balance of probabilities, Mr Y understood the information it gave him about his choices of where to live. He was able to retain information about the options and remembered that he had discussed this before. Mr Y’s views were similar to those he expressed at the meeting in October, and Mr Y said that he remembered that meeting and that the questions now were asking more or less the same thing. Mr Y understood that he had three options but said that staying at the current home was his first choice, and that although he remembered being happy at Home One, he did not want to go to Home Two.
29. The Council’s assessment notes clearly set out why the Council considered that Mr Y had capacity to decide where to live. It said he was able to use and weigh up the information it had given him. He understood he would not be returning to his former extra-care home and asked how his belongings would be transferred. He was able to rank the three homes in order of preference and explain his reasons. He was consistent with choices he had made a few weeks earlier. The Council’s assessment does not specifically say it took into account his autism.
30. The Council completed a further mental capacity assessment a few weeks later. The notes of this assessment say that Mr Y showed an understanding immediately that the discussion was about where he would live. He said that the staff at the current home help him with everything. He referred to the three options throughout the assessment. He remembered the previous conversations about this. He liked all the staff at the current home and his neighbours. A member of staff had assaulted him but Mr Y told the Council he had been sacked. Mr Y said he wanted to stay at the current home at least until the new year. The Council told him that this was a longer-term decision and Mr Y said that nothing would change.
31. The Council completed an assessment of Mr Y’s care needs in September 2020. The assessment says Mr Y needs ongoing physiotherapy to help him improve transfers and mobility, and that since being at the current home he had not been able to mobilise with a walking frame and needs two staff for transfers from chair to bed. The Councill’s records say the manager confirmed that the home was meeting Mr Y’s needs and could continue to do so.
32. In November 2020, the Council reviewed whether the current home was meeting Mr Y’s care needs. This mentioned that Mr Y had become socially isolated at his previous extra-care housing, and that it will take time for Mr Y to make connections. The care plan said that the staff at the home should ensure he does not spend all his time in his bedroom.
33. Miss B complained to the Council that it did not fund Mr Y’s physiotherapy. The Council’s case notes say that Mr Y had received NHS physiotherapy but had not engaged with it and so this was stopped. The Council said this is a health need and so would not be funded by the Council and should come from the NHS. The Council contacted the home manager and she contacted Mr Y’s GP to request physiotherapy to restart.
34. The Council reviewed whether the home was meeting Mr Y’s needs in February 2021. This review included Mr Y, care home staff and the SW. The review raised no concerns about Mr Y’s needs. He said he liked living there but did not get out of his room much due to COVID-19. This review did not mention Mr Y’s physiotherapy. The Council says that Mr Y has been clear that he does not want physiotherapy and it cannot force him to have this. It revisited this with him in June 2021, but he still did not want to engage with physiotherapy.
35. Miss B says the Council has not taken into account that Mr Y is fearful of change, and that the home has said it cannot meet his needs especially as he is autistic and has a learning disability. She says, Mr Y told her that the Council did not give him any other choices of where to live, and that he did not know that his current home do not specialise in autism or dementia. Miss B is unhappy that the Council talked to the family about two alternative options, but did not seek their views about Mr Y staying in the current home. She says that he spends his days in bed, there are no activities and he rarely received physiotherapy.
36. I appreciate that Miss B is concerned that Mr Y is not getting his needs met at his current home, but there was no fault by the Council in how it assessed whether Mr Y had capacity to decide he could stay there. The Council carried out three separate mental capacity assessments and each suggested that Mr Y had the capacity to decide where he lives. The Council’s records clearly set out why it decided that Mr Y had capacity and that his clear preference was to stay in the current home.
37. Regardless of Mr Y’s preference, the Council also needed to satisfy itself that the care home could meet Mr Y’s needs. It did this in its discussions with the home and Mr Y, and more formally in its reviews of his care plan in November 2020 and February 2021. The Council found no concerns with the care Mr Y was receiving and found that his needs were being met.
38. Miss B is concerned that there is no physiotherapy. Although this is delivered by the NHS, it is for the Council (or the care provider on its behalf) to ensure that his needs are met, and sometimes this will be via a referral to the NHS. However, the Council has tried to engage Mr Y with physiotherapy, and he has consistently refused this. There is no fault by the Council.

Safeguarding Mr Y’s finances

39. The Council assessed what help Mr Y would need with his financial affairs as part of his care needs assessment. It would also offer to carry out regular financial assessments to decide how much Mr Y should be contributing to his care costs. In 2018, his care plan said that he had a basic financial understanding, and could take charge of his banking transactions, but he needed help to manage his benefits to makes sure he was getting the right amount.
40. A financial assessment in 2018 says Mr Y is in receipt of a state pension and attendance allowance and he has savings of around £6,600. The Council had written to Mr Y offering a financial assessment in 2019 and 2020, but Mr Y did not engage. Miss B points out that Mr Y’s attendance allowance actually ceased in 2017.
41. In March 2020, Westminster Homecare notified the Council that it was having difficulty arranging provisions for Mr Y and some other service users during the COVID-19 restrictions. As I understand it, Mr Y was advised to stay home and this meant that he could no longer do his own shopping (accompanied by a carer), or withdraw cash to give to carers to fetch shopping for him.
42. In April 2020, Mr Y’s care plan says that he manages his finances independently but needs practical support to manage all financial issues including benefits, banking and letters. His care and support plan in place at that time said that carers should attach a receipt and complete a log when they shopped for Mr Y.
43. The Council received a safeguarding alert at the beginning of July 2020, that there were significant problems with his financial affairs. These included large cash withdrawals, large transactions at supermarkets when Mr Y could not have been there, payments to garages and service stations despite that Mr Y has no car, and that Mr Y’s savings were almost gone. It appeared that one of Mr Y’s carers had been taking and using his bank card to do this. The Council also found that Westminster Homecare had not helped Mr B to renew his benefit claim.
44. The Council alerted the Police and started a safeguarding enquiry. The care provider immediately suspended the carer, reminded all staff that carers should not take a service users bank card, and rewrote Mr Y’s care plan to make this clear.
45. In September 2020, the Council completed a mental capacity assessment to find out whether Mr Y could manage his finances. The Council concluded that he did not have capacity to manage his finances and did not understand the information relevant to this. The Council says that until that point there was no evidence that Mr Y lacked capacity to understand and deal with his finances, and that in accordance with the law it had to assume he had capacity.
46. The Council has acknowledged that it did not record adequately how it had assessed that Mr Y could manage his finances. However, my current view is that the Council also failed to engage sufficiently with exactly how Mr Y would manage with the practical aspects of his finances, particularly when he was not able to leave the house. It failed to ensure that the care provider acting on its behalf had sufficient systems to protect Mr Y from risk of financial abuse, particularly as the care provider alerted the Council that COVID-19 restrictions were making this more difficult.
47. The Council cannot eradicate the risk of theft and I cannot hold it responsible for criminal activity. However, Mr Y and Miss B are left uncertain and distressed that had the Council or its care provider taken more care to protect Mr Y, in accordance with the Regulations, then the risk might have been lessened.

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Agreed action

48. The Council will, within one month of this decision, show the Ombudsman it has:
• Apologised to Mr Y by an appropriate means of communication, that might include in person; and
• Paid Mr Y £500 in recognition of the distress caused to him when it failed to ensure he was adequately protected from financial abuse.
49. Under the terms of our Memorandum of Understanding and information sharing protocol with the Care Quality Commission, I have sent it a copy of my final decision statement.
50.  

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Final decision

51. I have completed my investigation. There was fault by the Council and the care provider acting on its behalf, and this caused Mr Y and Miss B injustice.

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Investigator's decision on behalf of the Ombudsman