Summary: Mr D complained about the actions of the Council in respect of his mother, Mrs B when she needed residential care in September 2020 until she moved to a different care home in September 2022. We have not identified fault in the move to a care home in September 2020 or the decision to move her into the dementia unit in February 2021. But we did find the Council delayed in carrying out a care reassessment after Mr D indicated he wished to move Mrs B to a different setting nearer to him, causing him uncertainty and distress. The Council has agreed to apologise to Mr D, pay him £300 and improve its procedures for the future.

The complaint

1. Mr D complained that the Council in respect of Mrs B’s care and support needs:
• moved Mrs B to an inappropriate setting (the Home) in September 2020;
• moved her inappropriately to the dementia unit within the Home without carrying out a proper assessment; and
• delayed in carrying out a care needs assessment, which delayed a move to a more appropriate setting and caused her health to deteriorate significantly.
2. These errors meant Mrs B was prevented from moving to a cheaper care home at an earlier point and caused her son, Mr D, significant distress and inconvenience.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Lasting Power of Attorney (LPA)

6. An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
7. There are two types of LPA:
• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

Deprivation of Liberty Safeguards (DoLS)

8. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation.

What happened

9. Mrs B used to live in her own home with her partner. She had a stroke which affected her cognition. She became at times confused and disoriented. She had a period of respite in a care home. After another brief spell in hospital, she was assessed as having the mental capacity to make decisions about her care and she wanted to return home. She was discharged home to her partner with a package of care.
10. Unfortunately, this arrangement fell through, and after a review in September 2020 Mrs B moved to a residential care home (the Home) on a temporary basis. The Council considered she needed a period of respite to promote her wellbeing, strength and independence. Mr D and his brother (who both had lasting power of attorney for their mother for health and welfare and property and finance) agreed that it would be beneficial to assess whether Mrs B may be able to return home with a package of care. Mrs B agreed and chose the Home because her late husband had been cared for there.
11. In October 2020 the Council carried out a review visit at the Home with Mrs B and Mr D. Respite care should have ended on 8 October 2020 but the Council agreed to extend the stay due to Mrs B’s cognitive decline. It also referred her to the Older People’s Mental Health team for an assessment of her mental health.
12. The Council also provided information about the charges for permanent residential care including deferred payments (a scheme which allows the Council to cover the cost of the residential care until a service-user’s property is sold). It said that if Mrs B required permanent residential care, a further financial assessment would be required. The Council sent further explanation on these issues at the end of October 2020.
13. In November 2020 the Council decided that Mrs B’s care became chargeable from 16 November 2020. The period from September to November 2020 was to prevent hospital admission.
14. In January 2021 the Council again extended Mrs B’s temporary stay at the Home to allow for an intervention by the mental health team to take effect and diagnose possible dementia. She was referred for a memory assessment.
15. On 3 February 2021 the Home requested a DoLS authorisation as it wished to move Mrs B into its specialist dementia unit. The Home said that if she did not move, it would not be able to meet her care needs in the residential part of the Home due to a deterioration in her condition. It said she would be able to participate in more activities, walk freely in the communal areas in a safe locked environment and be cared for by specialist staff. The Home decided Mrs B did not have the capacity to make this decision for herself and made a Best Interests decision, that she would move to the unit. It said the decision was discussed and agreed with Mr D and Mrs B’s social worker, but they were not present due to the COVID-19 lockdown.
16. In early March 2021 a Best Interests Assessor carried out an assessment (as part of the DoLS process) via video-link. They concluded that Mrs B had some basic understanding of her circumstances and why she was in the Home, but she had limited understanding of her ability to look after herself and the potential risks if she did not have 24 hour care. She was not able to fully consider alternative care and residence options or retain relevant information to make complex decisions. The Assessor said Mrs B appeared to enjoy the environment and the company of other residents and said she liked the Home. They said she was waiting for a full assessment by the memory service to diagnose possible dementia, but this had been delayed by the demand for the service, exacerbated by the lockdowns. They concluded her current placement and deprivation of liberty was proportionate and in her best interests.
17. The Assessor said she had fully discussed the assessment with Mr D and his brother, and they were happy with the quality of care provided to Mrs B. However, they both had concerns about the delay in the memory assessment and diagnosis and the fact that the extended stay in the Home may have deskilled her further. They agreed Mrs B may remain at the Home or perhaps could live in sheltered housing with a comprehensive care package. The Assessor authorised the deprivation of liberty for a further three months.
18. In May 2021 the memory screening and assessment was completed, and Mrs B was diagnosed with Alzheimer’s and vascular dementia. The assessment concluded that Mrs B lacked capacity regarding her care and support needs as she did not recognise the level of support she needs and so was unable to identify the risks or weigh information to reach a decision about appropriate care.
19. During the assessment Mrs B said she was unhappy at the Home and wanted to return home or live with her partner in his property. The Council considered neither of these options were possible or suitable and her sons agreed she required a residential setting nearer to them so they could visit her and take her out more often.
20. In June 2021 the Council sent Mr D a copy of Mrs B’s care and support plan. In the covering email it said that if they were looking for alternative placements, any care home would require more person-centred information about Mrs B’s background, history and personal preferences. The Council agreed to extend the stay at the Home until the end of August 2021 to allow Mr D and his brother to look for an alternative placement. The current social worker was leaving. Another DoLS assessment was done which agreed, extending the authorisation for another four months.
21. In July 2021 Mr D contacted the Council to discuss what needed to happen for Mrs B to move to a different care home. The Council advised that if Mrs B required a deferred payment scheme, then an assessment and approval for long-term care needed to be completed, along with safeguards such as Care Quality Commission checks on appropriate homes. The case notes say that the Council ‘would put on a contact for an assessment’. The DoLS authorisation confirmed on 23 July 2021 that Mrs B required 24 hour care and four months would allow the family to explore alternative care options.
22. Mr D found an alternative home nearer to him and the rest of the family and he negotiated a price of £900 per week. He contacted the Council on 4 August 2021. He said he had identified a need for a deferred payment but did not understand why the Council needed to remain involved. The Council again said that it would need to do a reassessment of Mrs B’s care needs, a new financial assessment in addition to checks on a possible care home for safeguarding concerns and a CQC report. The Council said it would speak to a manager and request ‘contact for assessment’.
23. Between 12 and 20 August 2021 Mr D exchanged emails with the Council expressing dissatisfaction that Mrs B did not have an allocated social worker since the last one left in June 2021 and was incurring fees at a care home she did not wish to remain at.
24. On 25 August 2021 Mr D’s brother telephoned the Council to find out the process for moving Mrs B to a home outside the Council’s area. The Council explained the process ‘in full’ and confirmed a new social worker had been allocated to Mrs B’s case.
25. The social worker contacted Mr D on 23 September 2021 to discuss the case. Mr D said she had been unsettled at the Home. But activities and visits had recently restarted and she was more settled. He was no longer sure that moving to a new care home was the best course of action. The social worker said they could reassess Mrs B and consider a change of care home, but her recommendation was to give Mrs B more time to settle with the activities and visits and then reconsider the situation. Mr D agreed with this.
26. In November 2021 Mr D discussed charging and finances with a welfare rights officer. Between then and January 2022 the Council provided information and application forms for the deferred payment scheme and Mr D provided information about Mrs B’s financial position for the purposes of a new financial assessment.
27. Another DoLS assessment was done in late November 2021. Mrs B said she was happy being at the Home and did not want to make any changes. Mr D explained about his uncertainty over moving Mrs B to a home closer to him and other family members. He said the Home was keeping her safe but the quality of care was not consistent. The assessor agreed to recommend a full reassessment involving family members to explore all options and make a best interests decision in relation to a placement for Mrs B. The assessor authorised the placement for another three months.
28. The reassessment took place on 27 January 2022. It referred to the ongoing discussion about whether to move Mrs B to a different home nearer to Mr D and the pros and cons of such a move. It concluded that Mr D had LPA for Mrs B and so he had the authority to arrange a move if Mrs B lacked capacity and it was in her best interests to do so.
29. The Council completed the financial assessment and approved funding of permanent care for Mrs B from 27 January 2022. Between February and April 2022 Mr D and his brother had ongoing discussions with the Council over the charges for care, the financial assessment and the deferred payment scheme.
30. Mrs B was referred back to the mental health team due to increasingly agitated behaviour and during a mental capacity assessment in March 2022 she said she was happy at the Home. In April 2022 Mr D confirmed they did not wish to proceed with the deferred payment scheme and Mrs B funded her own care from 21 April 2022.
31. In June 2022 during a care needs review stated that Mrs B’s family were not currently considering a move as she was settled at the Home.
32. By the end of July 2022 they had changed their view and Mrs B was happy to move to be nearer to her sons. On 14 September 2022 Mrs B moved to a home nearer to Mr D.

Complaint

33. In 2023 Mr D complained to the Council that:
• Mrs B did not have a care act assessment after her admission to the Home in September 2020 until August 2021. So, he disputed the care charges from 16 November 2020 until August 2021.
• Mrs B was moved to the dementia unit of the Home with no assessment of her cognition being carried out. Additionally she was moved into the Home without the Home being aware of her care needs.
• Mrs B was given incorrect levels of medication while at the Home which has changed dramatically since moving to a new placement.
34. The Council appointed an investigator who produced a detailed investigation report in April 2023. She partially upheld the first complaint about the care charges. It said the Council had wrongly applied the discharge to assess procedure (which applied to people being discharged from hospital during COVID19) but as it had done so the Council should fund Mrs B’s care charges until 21 May 2021 when an assessment of her needs was completed. It did not uphold the other two complaints. It said it had spoken to the manager of the Home who confirmed that the Home had received a copy of the support plan done by Mrs B’s social worker on 1 September 2020. The Home also explained that staff had carried out a mental capacity assessment and made a best interest decision, involving the social worker and the family before moving her to the dementia unit.
35. Mr D complained to us in September 2023. He said the Home was understaffed and due to the COVID19 pandemic, Mrs B was left in her room for most of the day and didn’t speak to anyone. Activities ceased and no visitors were allowed. Mr D said that Mrs B was moved to the dementia unit due to higher staffing numbers and more activities. He said there was no way for anyone to verify whether it was suitable for Mrs B as no-one could access the Home. Mr D said that Mrs B found herself in a hostile environment with other residents shouting and behaving aggressively, so she withdrew to her room for long periods of time.
36. He said during visits he found her often frightened and apprehensive. The visits were only 30 minutes long and the visiting rooms were sectioned off which created a difficult environment to explain the reality of the situation: she had been placed in a home by the Council with no partner, no car and no ability to make her own decisions. The Council were responsible for her and a move remained impossible until the Council completed an assessment.
37. He said the delay in carrying out the assessment meant Mrs B’s condition deteriorated and they will never know if things could have been different if she had moved to an alternative placement sooner. The cost of the alternative home he had found in August 2021 had increased by £350 week and was no longer affordable.

Analysis

38. Looking at each part of the complaint in turn:

moved Mrs B to an inappropriate setting (the Home) in September 2020

39. I have not identified fault with the decision to move Mrs B to the Home in September 2020: the Council carried out a review of Mrs B’s care needs and concluded she needed a period of respite to regain her strength and decided on the best option for the longer term. Mr D and his brother agreed with this course of action. Mrs B, who had capacity at this point, chose the Home as her husband had been cared for there. The Home saw the care and support plan prior to Mrs B moving in and so staff were aware of her care needs.

moved her inappropriately to the dementia unit within the Home without carrying out a proper assessment

40. I have not identified fault with the way the Home reached its decision to move Mrs B to its dementia unit. During a review in October 2020 the Council noted Mrs B’s condition had deteriorated and referred her to the Older People’s Mental Health team. This resulted in an intervention in January 2021 and the Council deciding to delay a needs review until mid-March to allow the intervention to work and to carry out a further assessment.
41. It is evident from these actions that Mrs B had a mental health condition which was deteriorating. By early February 2021 the Home felt Mrs B’s behaviour had deteriorated to such an extent that she needed to move to the dementia unit. As this was during the COVID19 lockdown a proper care needs review could not be done. Nevertheless, the Home consulted the social worker and Mr D and recorded their agreement with the move. I accept Mr D understood the move was just to give Mrs B more stimulation. But it is apparent from the Best Interests decision that the situation was more complex than that and if Mrs B had not moved, the Home would have given notice as they would not be able to meet her needs in the residential part of the Home.
42. The DoLS assessment carried out shortly after the move in March 2021, confirmed the extent Mrs B’s condition and her lack of capacity. It also appears that Mr D was in agreement with the placement at this time but was unhappy about the delay in the memory assessment and dementia diagnosis.

delayed in carrying out a care needs assessment, which delayed a move to a more appropriate setting and caused her health to deteriorate significantly

43. The delay to the care needs review following the mental health intervention was caused by the subsequent delay in completing a memory assessment and dementia diagnosis. This was promised at some point after January 2021 but did not take place until mid-May 2021 This service is an NHS service and so is outside the control of the Council. The Council carried out a care needs review as soon as the assessment was completed, and the diagnosis confirmed. I accept this was frustrating for Mr B, but I cannot conclude it was due to fault by the Council.
44. I accept the Council could have carried out a care needs review before the mental health assessment was completed but I do not consider this would have produced a different outcome as the diagnosis of Mrs B’s condition was needed in order to assess a suitable placement for her. I am not able to conclude whether or not the delay caused Mrs B’s condition to deteriorate as she had a progressive and variable condition.
45. But I do consider that after the care needs assessment was completed and the care and support plan produced in early June 2021, the Council delayed in deciding on the best option for Mrs B. The DoLS authorisation was extended to allow the options to be considered but the Council took no action to direct this process. This was largely due to the fact the social worker left the Council in June 2021 and a new one was not allocated until the end of August 2021, with a reassessment not taking place until the end of September 2021.
46. This delay of three months was fault which caused Mr D frustration and distress as he wanted to move his mother to a home nearer to him but needed guidance on how to do this.
47. I also consider his injustice was exacerbated by incomplete information and poor communication during this period. The Council told him in July 2021 that an assessment was needed to approve long term care along with safeguards such as Care Quality Commission checks on appropriate homes. But no progress was made with the assessment until September 2021, and Mr D was given no detail as to what a CQC check might involve and why the information on the CQC website about registered care homes was not sufficient for its purposes. I also consider that the assessments done in May and June 2021 confirmed that Mrs B needed 24 hour care on a permanent basis; it was just a question of deciding on the best option. So, I am unclear why another assessment needed to be done to confirm what had already been decided.
48. This advice was repeated in early August by which time Mr D had found a suitable home at an affordable cost. The continued delay in allocating a new social worker and carrying out an assessment meant this place was lost.
49. I am also concerned that the Council appeared to be saying during this period that it needed to approve and control the process of moving Mrs B to a different home. But by January 2022 it said Mr D, by virtue of the LPA, had the power to move Mrs B to another setting if she lacked capacity and it was in her best interests. If this advice had been provided sooner, it is possible Mr D may have been able to move Mrs B at an earlier point.
50. I consider, if the delay had not occurred and the Council had acted on Mr D’s request for assistance once he identified a new home by the beginning of August 2021, it is possible that Mrs B may have moved at that point. She did not move until September 2022. I also note that from September 2021 until July 2022 Mr D expressed uncertainty about whether moving Mrs B was in her best interests and she fluctuated in her level of satisfaction with the Home. So, I cannot be sure that a move would have taken place earlier and I have concluded the main injustice arising from the identified delay was uncertainty about whether the situation could have been different.

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Agreed action

51. In recognition of the injustice caused to Mr D, I recommended the Council within one month of the date of my final decision:
• apologises to Mr D and pays him £300 for the uncertainty he was caused by the delay in 2021;
52. Additionally, within three months of my final decision:
• takes steps to ensure that when families express the wish to move relatives to a different setting that full and clear advice is given promptly on the process to follow with timescales for any action by the Council.
53. The Council has agreed to my recommendations should provide us with evidence it has complied with the above actions.

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Final decision

54. I consider this is a proportionate way of putting right the injustice caused to Mr D and I have completed my investigation on this basis.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman