Summary: Mr X complained about how the Council chose his mother, Ms Y’s, care home and reviewed its suitability. There was no fault in the way the Council chose the care home. The Council was at fault for delay in reviewing Ms Y’s care and support plan. This did not cause Ms Y an injustice as she was settled at the care home and it was meeting her needs. However it caused Mr X frustration and meant he went to time and trouble to chase the review. The Council has already apologised to Mr X. In addition, it has agreed to pay him £100 to acknowledge the frustration and time and trouble he was caused. The Council has already reviewed its procedures to prevent a recurrence of the fault.

The complaint

1. Mr X complained about how the Council chose his mother, Ms Y’s care home and reviewed its suitability. He also complained about how the Council facilitated services including a wheelchair, neurological rehabilitation and speech and language therapy while Ms Y was in the care home. Mr X said it caused him distress and frustration and affected Ms Y’s recovery.

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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. 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)
4. If we are satisfied with an organisation’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

5. We have considered the information Mr X provided and discussed the complaint with him. We have considered the Council’s response to our enquiries and the relevant law and guidance.
6. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received before making a final decision.

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What I found

Relevant law and guidance

Needs assessment

7. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adults 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.
8. If a council decides a person is eligible for care, it must prepare a care and support plan. As part of the care and support planning process, the council must provide the person with a personal budget.
9. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. The Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreement and signing off the plan and personal budget. It should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if the adult or a person acting on the adult’s behalf makes a reasonable request for one.

Choice of care home

10. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home for them. It says that once a needs assessment has determined what type of accommodation will best suit the person's needs, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions, including that to do so would not cost the council more than the amount specified in the person’s personal budget for that particular type of accommodation.
11. In circumstances where a placement in a care home is necessary, the Care Act says there must be at least one placement choice available that is affordable within the personal budget. A person must also be able to choose alternative options, including a more expensive setting, where a third party is willing and able to pay the additional cost (‘top-up’).

Mental capacity

12. 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) describe 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.

A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity.

13. 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 the following:
• 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?
14. 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. Councils normally do this by holding a best interests’ meeting. This brings together individuals involved with the person including professionals and family members to decide what is in the person’s best interests.

What happened

15. Ms Y lived in sheltered accommodation. In February 2021, she had a stroke and was admitted to hospital.

Decision to place Ms Y into a care home

16. In early March 2021, Ms Y was ready for discharge from the hospital. Ms Y was seen by a Speech and Language Therapist (SALT), physiotherapist and occupational therapist (OT) while she was in hospital. At the point of discharge, the SALT and physiotherapists did not recommend further treatment. The hospital OT said Ms Y would be referred to community-based neurological therapy.
17. The hospital carried out a mental capacity assessment, which concluded Ms Y lacked capacity to make a decision about where she should live. The next day, the Council held a best interests’ meeting to discuss Ms Y’s discharge. It was attended by relevant health professionals, the manager of Ms Y’s sheltered accommodation, staff from adult social care, Mr X and another family member. The notes record all agreed Ms Y required 24 hour nursing care. In late March 2021, the Council carried out a needs assessment which set out Ms Y’s eligible needs. The assessor visited Ms Y, considered her medical notes and the existing support available to her from family.
18. The assessment found Ms Y needed significant help with:
• managing her nutrition;
• taking her medicine;
• her personal hygiene;
• toileting; and
• dressing herself.
19. Following the needs assessment, the Council produced a care and support plan which set out that a nursing home would meet Ms Y’s eligible needs.

Choice of accommodation

20. Mr X agreed Ms Y required 24-hour nursing care but was concerned about Ms Y going into a nursing home because of her young age and need for a stimulative environment. Between mid and late March 2021, Mr X and a family member discussed their concerns and preferred care home requirements with the Council.
21. In mid-March 2021 Mr X told the Council his preferred care home was Care Home A. Mr X preferred Care Home A in part because it had good rehabilitation services. In late March 2021, Ms Y’s family confirmed to the Council they could not pay a top up fee for a care home.
22. In total the Council contacted 22 care homes nearby, including Care Home A. At that time, Care Home A did not have any vacancies. In addition, Care Home A cost more than Ms Y’s personal budget and so would have required a top up which the family had confirmed they could not pay.
23. The Council identified three care homes that could meet Ms Y’s needs, were in budget and had availability, including Care Home B. Mr X discounted the other two care homes due to distance and a Care Quality Commission report. Ms Y’s family agreed to Care Home B in Mid-April 2021 and she moved in.
24. In late April 2021, the Council noted the wider family were happy with Care Home B. However, Mr X said he was unhappy that Ms Y was initially placed on a dementia ward which she was later moved from.
25. In late-April 2021, Ms Y’s family asked the Council about a wheelchair for her. A Council Occupational Therapist (OT) noted in late May Ms Y was not eligible to receive a wheelchair from the NHS wheelchair clinic. This was because the clinic did not provide wheelchairs for use in nursing homes.
26. In early May 2021 Mr X and a hospital social worker visited Ms Y in Care Home B and noted Ms Y confirmed she like the care home. The hospital social worker said she would end their involvement at that stage and another Council social worker would undertake a review.

Review of Ms Y’s care and support

27. In mid-May an officer noted on the case that a review of Ms Y’s care was required. They noted on-going issues regarding ending Ms Y’s previous tenancy. The case notes record several emails in June and July 2021 between different teams regarding who should conduct the review, but a review was not completed.
28. In mid-June 2021 an Occupational Therapist (OT) visited Ms Y to look at her seating. The notes record they spoke with a relative who asked about a wheelchair. The OT advised social services do not provide wheelchairs. These were provided by the NHS wheelchair service but it was not in their contract to provide these to nursing homes. They advised the family or nursing home could fund one. The OT also suggested some charities who may be able to support.
29. At the end of June 2021 Mr X contacted the Council to enquire about getting Ms Y a wheelchair. The officer explained an OT had visited and signposted to agencies that could support. Mr X says he tried to source one from a charity but was unsuccessful. Mr X also requested an allocated worker for Ms Y and was directed to adult social care.
30. A relative spoke to the Council to ask again about a wheelchair. The officer explained an OT had spoken with another relative about this.
31. In early August Mr X contacted the Council. He wanted some guidance around equipment for Ms Y and said he would appreciate a six week review. Mr X called again the following week requesting an update. Mr X called again the following week and complained no-one had been in contact or checked on his mum. The officer noted Mr X said Ms Y was saying she did not want to be in the care home. Mr X also asked for support with getting a wheelchair. Mr X told the Council he was unhappy about the lack of SALT, physiotherapy and rehabilitation in Care Home B.
32. The Council carried out a financial assessment and wrote to Mr X. He contacted the Council as he was unhappy with Care Home B and felt Ms Y had improved sufficiently that she could possibly return to her sheltered accommodation and receive support at home. Mr X was also concerned about managing the financial aspects of paying for a care home.
33. The social worker spoke to Ms Y’s sheltered accommodation provider and the care home. Mr X said he wanted Ms Y out of Care Home B and moved to Care Home A as soon as possible. The manager at Care Home A agreed to assess Ms Y and advised the cost would be £1400 a week plus funded nursing care, which was higher than Ms Y’s personal budget. Her previous tenancy provider advised it did not have the staff to support Ms Y at night. It also advised she would be more isolated there.
34. In early September 2021, the Council carried out a mental capacity assessment to assess whether Ms Y had capacity to decide where she wanted to live and also whether to end her previous tenancy. The officer asked Ms Y if she wanted to remain where she was. The officer noted Ms Y was repeatedly able to say she did not want to return to her previous tenancy, wanted to sign the forms to end her tenancy and wanted to stay in care home B. The officer considered Ms Y understood the decision to be made. They concluded Ms Y had capacity to decide where she wanted to live.
35. In early September 2021, an Occupational Therapist completed a wheelchair referral form and sent it to the NHS wheelchair Clinic.
36. Given Mr X’s view that Ms Y’s condition had improved, the Council also conducted a new needs assessment It took into account information from the care home, the family and an OT. It found Ms Y still had significant needs for care and support which were best met in a nursing home and that Care Home B was meeting her needs. Ms Y had capacity to decide where to live and expressed she wanted to stay at Care Home B, the Council did not facilitate her move back to sheltered accommodation. The Council noted on the needs assessment it had made referrals to the NHS for rehabilitation and wheelchair services.
37. In late September 2021 Mr X complained to the Council about the mental capacity assessment. He disagreed with the decision and said his mother was bullied into the decision not to return to her sheltered housing accommodation. He also complained about the choice of care homes, a lack of rehabilitation, speech therapy and a wheelchair, the delay in allocating of a social worker, difficulty in contacting the Council and a delay in carrying out the care and support review.
38. In October 2021, the Council responded to Mr X’s complaint. The Council said:
• Care homes were discussed with family members. Care Home A had no vacancies. Care Home B had vacancies and could meet Ms Y’s needs. If the family preferred another nursing home this could be arranged but any short fall in costs would require the family to pay a top up.
• The NHS was responsible for rehabilitation and speech and language therapy and for wheelchairs. Advice was given regarding wheelchair provision and a referral was made to the wheelchair service. Ms Y was seen by a speech and language therapist in hospital and the GP could refer for further services in the care home.
• The Council accepted there was a delay in carrying out a review as it was not clear which team would carry it out and there was a lack of a clear pathway to follow. It accepted the decisions were not communicated clearly to family. The Council apologised for the frustration and inconvenience this caused. It said it would discuss the need for clear communication with families with the relevant team managers
• The Council said the mental capacity assessment had been carried out appropriately by a social worker who had prepared for the assessment by speaking to the nursing home and speech and language therapist in advance, using pictures and paper to communicate with Ms Y. Ms Y was able to express her views. She was aware she was now in a nursing home and did not want to return to her previous tenancy.
39. In its response to our enquires, the Council said it revised the process to ensure the need for a review was triggered in a timely way and a dedicated process was in place for completing assessments from hospital, ensuring individuals were allocated to the appropriate team.

My findings

Decision to place Ms Y into a care home

40. The Ombudsman cannot question a council’s decisions if they are taken without fault. The Council considered the relevant information in carrying out an assessment of Ms Y’s needs. It visited Ms Y, saw her hospital records, considered existing support and concluded Ms Y required 24 hour care. There was no fault in how the Council assessed Ms Y’s needs and decided she needed full time care.
41. At that time, the hospital considered Ms Y did not have capacity to make a decision about where she should live so the Council held a best interests’ meeting. All those who attended the meeting agreed Ms Y needed nursing care. This was the correct process for making a decision on behalf of someone without capacity. The Council was not at fault.

Choice of accommodation

42. Mr X said the Council pressured him into choosing a care home and was unhappy it did not place Ms Y in Care Home A, which he felt had better rehabilitation services. He felt this showed the Council did not prioritise Ms Y’s wellbeing. The Care and Support Statutory Guidance states councils must ensure a person must have a least one choice of accommodation within the person’s personal budget. The Council identified three care homes that were within budget, had availability and could meet Ms Y's needs. It gave Mr X opportunity to express a preference for one; he chose Care Home B.
43. In any event, Mr X’s first choice, Care Home A, cost more than Ms Y’s personal budget. To place her there, a third party would have to pay the difference in fees. Ms Y’s family made it clear to the Council they could not pay any top up fees. The Council gave a choice of accommodation in accordance with the guidance so was not at fault.
44. Mr X complained Ms Y was initially placed on a dementia ward at Care Home B. This can sometimes happen; particularly when hospital discharge is fast. I do not consider it amounts to fault in this case. In any case, Care Home B moved Ms Y to the stroke ward in April 2021. This was less than a month after she moved to Care Home B.

Review of placement

45. Government guidance gives an expectation that councils should consider a light touch review of a care and support plan six to eight weeks after it produces one. An officer identified a review was due in mid-May, but the Council failed to complete this until September 2021. This was fault.
46. Mr X contacted the Council to request the review but he also wanted Ms Y moved from the care home either to her previous tenancy or to care home A. The Council therefore carried out a mental capacity assessment and care needs assessment in September 2021, rather than a review.
47. I have seen no evidence of fault in how the Council carried out the mental capacity assessment. It properly considered Ms Y’s ability to make a decision about where she wanted to live. It concluded Ms Y had capacity to decide where she would like to live and Ms Y wanted to remain at care home B.
48. The Council also completed a needs assessment, taking into account information from Ms Y’s family, care home B and an OT. It concluded Ms Y still required nursing care, Ms Y’s needs were being met at care home B and that Ms Y was happy living there. The Council was not at fault for respecting Ms Y’s choice to remain at care home B.
49. As the mental capacity assessment concluded Ms Y wished to remain at care home B and the needs assessment found it was meeting her needs there was no injustice to Ms Y from the delay in carrying out the review. However, the delay caused Mr X avoidable frustration and time and trouble in repeatedly having to chase the Council for an update. The Council has already apologised to Mr X for the delay. I am not satisfied this remedies the injustice caused so have made a recommendation for a small symbolic payment to address this. The Council has already carried out a suitable service improvement to prevent the fault occurring again.

Wheelchair, speech and language therapy and rehabilitation

50. The Council was not responsible for providing Ms Y with a wheelchair. It acted promptly in mid-April 2021 to explore whether the NHS could offer Ms Y a wheelchair. In late May 2021 an Occupational Therapist concluded Ms Y was not eligible for a wheelchair. There was a short delay until June 2021 in communicating this information to Mr X and his family when they could have been pursuing a wheelchair. In August 2021 Mr X complained to the Council that Ms Y still did not have a wheelchair. The Council completed a wheelchair referral form in early September 2021 and sent it to the NHS for further assessment. The Council responded appropriately to Mr X’s requests and was not at fault.
51. In March 2021 Ms Y was seen by a speech and language therapist and physiotherapist in hospital. These services are provided by the NHS and decisions related to ongoing rehabilitation needs are made by them and not the Council. It was open to the GP or care home to make referrals for physiotherapy, rehabilitation and SALT for further assessment, if this was deemed appropriate. When Mr X raised this with the Council it acted appropriately and facilitated referrals for physiotherapy and rehabilitation. The Council was not at fault.

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Agreed action

52. Within one month of the final decision, the Council has agreed to make a symbolic payment of £100 to Mr X to acknowledge the avoidable frustration and time and trouble he was put to by the Council’s delay in carrying out the review.

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Final decision

53. I have completed my investigation. There is 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