Summary: There is no evidence the Council failed to consider all relevant facts when Mrs X had to move out of her previous care home. The complaint is not upheld.

The complaint

1. Ms A (as I shall call her) complains that the Council assessed her mother Mrs X when she herself was not present and moved her to a new placement against her wishes.

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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.
3. 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

4. I considered all the information provided by Ms A and the Council. Both Ms A and the Council had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance – accommodation choices and top-up payments

5. 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 place for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions. This also extends to shared lives, supported living and extra care housing settings.
6. The council must ensure:

• the person has a genuine choice of accommodation;
• at least one accommodation option is available and affordable within the person’s personal budget; and,
• there is more than one of those options.

7. If a person chooses to go into a home that costs more than the personal budget, and the council can show that it can meet the person’s needs in a less expensive home within the personal budget, it can still arrange a place at the home if the person can find someone else (a ‘third party’) to pay the top-up.

Relevant law and guidance – mental capacity assessments

8. 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.
9. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make 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. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
11. 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. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
12. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. 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.
13. 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.

What happened

14. Mrs X was resident in care home A, where she funded her own care. Ms A says Mrs X initially moved there for respite as her needs were becoming too extensive for Ms A and her family to manage.
15. Ms A contacted the Council for assistance in May 2023. She said her mother had sufficient money to pay for care until the summer but beyond that would need help with paying her care fees.
16. A social worker assessed Mrs X in the care home on 24 March. He says Mrs X was supported by a Team Leader at the care home during the assessment and was happy when asked to discuss her needs with the social worker without her family present. He assessed that Mrs X needed continuing 24-hour residential care to meet her needs.
17. The social worker spoke to Ms A on 25 May. He explained that the Council would carry out a search of suitable accommodation and that if Mrs X wanted to stay at Care Home A it was possible a top-up payment would be required. Ms A said she would consider a top-up if necessary. The social worker agreed the search for accommodation could be conducted in an area from Ms A’s postcode to facilitate visiting.
18. In August the social worker contacted Ms A with details of three care homes within the relevant search area and Mrs X’s personal budget. Ms A said it remained difficult to think that her mother had to move. However, she identified which of the care homes she would prefer and the social worker agreed to arrange a pre-admission assessment by the manager.
19. The Council’s records show the social worker also contacted Mrs X’s GP requesting information about the potential adverse effects of a move on Mrs X. The GP confirmed there was no foreseeable physical impact of a move although it might be disorientating.
20. In September the social worker carried out an assessment of Mrs X’s capacity to make her own decision about her care and about the consequences of staying at Care Home A if she could not afford to do so. Ms A was present. The assessment notes Mrs X did not have capacity to make the decision about moving care homes. The social worker explained the personal budget amount to Ms A, who said she would see if other family members could pay the top-up.
21. On 27 September Ms A confirmed a top-up payment would not be possible and she agreed to contact Care Home B about arranging a move for Mrs X. Mrs X moved on 5 October.
22. In October Ms A complained to the Council about her mother’s move to another care home. She said Mrs X had been assessed without her present, that some important information about her health had been omitted from her records (ie that she had suffered a stroke) and that it had always been her wish to remain at Care Home A but the Council insisted on a move.
23. The Area Practice Manager replied. He said a review of the records showed the social worker had carried out a fair and comprehensive assessment that recognized Mrs X’s needs. He said the records showed that Mrs X had suffered not a stroke but a Transient Ischaemic Attack, sometimes informally called a mini-stroke. He said it was clear the social worker had explained the possibility for Mrs X to remain at Care Home A if a top-up was paid to supplement the personal budget, but this had not proved possible. The Area Practice Manager said the manager of Care Home B had indicated Mrs X had generally settled well although she was reluctant to join in activities and had been using the call bell inappropriately, but the staff were managing this.
24. Ms A complained to the Ombudsman. She said the Council should have taken into account her mother’s age and her desire to remain in the care home where she had lived for a year rather than insisting on a move. She said she does not believe the new care home is meeting Mrs X’s needs as well as Care Home A.
25. The Council says Care Home B is closer to Ms A’s home for visits than Care Home A. It says Mrs X had been content for the team leader at Care Home A to support her during the initial assessment. The Council has provided details of the search for suitable and appropriate accommodations for Mrs X which best took account of her need for family visits.

Analysis

26. There is no evidence of fault in the way the Council carried out the assessment of Mrs X’s needs once her capital reached the point at which she was eligible for Council assistance. The Council properly assessed Mrs X’s needs and her capacity to make her own decisions.
27. There is no fault in the way the Council explained the options to Ms A. It was possible for Mrs X to remain at Care Home A with a top-up payment, but her personal budget was insufficient to remain there otherwise. The Council appropriately offered a choice of care homes in the local area which would meet her needs.

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Final decision

28. I have completed this investigation. There was no fault in the way the Council assessed Mrs X’s needs and put forward the options for her future accommodation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman