Summary: There is evidence of some fault by the Council in this complaint. There was a delay in allocating a social worker to Mrs Y and a failure to chase up a mental health referral after she went into emergency respite care. This left a level of uncertainty about the impact such intervention may have had on Mrs Y’s care.

The complaint

1. Mr X complains about the way the Council dealt with his mother’s care and her placement in a residential care home. He also complains his mother was charged for her stay, when he had been told the placement was free for 12 weeks.

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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 investigate complaints about councils and certain other bodies. Where a care provider is providing services on behalf of a council, we can investigate complaints about the actions of the provider. (Local Government Act 1974, section 25(7), as amended)
4. We normally name care homes and other care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
5. 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

6. I have:

• considered the complaint and discussed it with Mr X;
• considered the correspondence between Mr X and the care home, and between Mr X and the Council;
• considered the Council’s response to the complaint;
• considered relevant legislation;
• offered Mr X and the Council an opportunity to comment on a draft of this statement, and considered the comments made.

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What I found

Relevant legislation

7. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 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. The following standards are relevant to how the care home managed Mrs Y’s care.
8. Regulation 9 Person Centred Care says the Care Provider must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate and meets their needs. Each person, and/or person lawfully acting on their behalf, must have all the necessary information about their care and treatment.

Mental Capacity

9. 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. 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.

Deprivation of Liberty

10. 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.
11. There are two types of authorisation. Urgent authorisations are made by the managing authority of the care home, for seven days, pending application for a standard authorisation. Standard authorisations are made by the Council.
12. On application, the supervisory body must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. A minimum of two assessors, usually including a social worker or care worker, sometimes a psychiatrist or other medical person, must complete the six assessments. They should do so within 21 days, or, where an urgent authorisation has been given, before the urgent authorisation expires.
13. In response to the increase in demand for DoLS assessments, the Association Of Directors Of Adult Social Services in England (ADASS) has published a screening tool to help councils prioritise DoLS requests. ADASS’s introduction to the guidance cautions that the “use of this tool must be balanced against the legal criteria for the Deprivation of Liberty Safeguards which remains unchanged”. The tool suggests criteria for prioritising requests into ‘higher’, ‘medium’ and ‘lower’ priorities.

Section 117 of the Mental Health Act 1983

14. Under section 117 (s117) of the Mental Health Act 1983 (the MHA) Councils and NHS Integrated Care Boards (ICBs) (previously Clinical Commissioning Groups [CCGs]) have a joint duty to provide or arrange free aftercare for people who have been detained under section 3, section 37 or transferred to a hospital under section 45A, section 47 or section 48 until they are satisfied the person no longer needs it. 

Council Financial Charging

15. The charging rules for residential care are set out in the “Care and Support (Charging and Assessment of Resources) Regulations 2014”, and the “Care and Support Statutory Guidance 2014”.
16. When the Council arranges a care home placement, it has to follow the regulations to decide how much a person has to pay towards the costs of their residential care. This is done by carrying out a financial assessment of the person’s means. People who have over the upper capital limit (£23,250) are expected to pay the full cost of their residential care home fees.
17. Where a council has been unable to carry out a financial assessment because the person refuses the assessment or refuses to co-operate with the assessment, the council will consider the financial assessment as complete, and the council satisfied the person’s financial resources exceed the upper capital limit.

Key Facts

18. Mrs Y is in her eighties. She has dementia and prior to the events in question, lived at home with her husband, Mr Y, who was her main carer. Sadly, Mr Y died on 1 March 2023 and Mrs Y was unable to manage alone. Her family were unable to care for her and contacted social services crisis team the day.
19. A social worker advised Mr X to contact Mrs Y’s GP, as she was agitated and attempting to wander out of the home. A GP visited the same day and reviewed Mrs Y’s medication. Mr X says the GP believed social services were best placed to make decisions about Mrs Y’s care needs.
20. An officer from social services visited Mrs Y the same day and completed a Care Act assessment. The records show, that prior to the visit, the officer informed Mr X that the Council had identified two provisional placements for Mrs Y, both of which had EMI (Elderly Mentally Infirm) registration, and that Mr X said he would be happy with either placement.
21. Mr X says the officer believed Mrs Y to have severe dementia. At this point she had no formal diagnosis, but she was later diagnosed with a severe form of Alzheimer’s disease. The officer recorded Mrs Y to need an immediate place of safety.
22. I have had sight of the completed assessment and support plan, both of which are detailed and comprehensive. The social services officer reported Mrs Y was unable to be left alone, was unaware of her surroundings and at risk of harm. She was continually attempting to leave her home to find her husband. The officer concluded Mrs Y needed “…a secure safe environment immediately. An EMI placement is required for her safety”.
23. Mr X stayed with his mother until a residential placement could be found. He reported she wandered around the house until 5am distressed and attempting to leave the property.
24. The next day the Council located a short-term placement for Mrs Y at an EMI registered care home, and she went into the care home that day, (3 March 2023). The care home was registered to provide care for people deemed to be EMI. The records show Mrs Y’s GP had prescribed medication for anxiety as she was expected to be very unsettled. Later the same day, the Council recorded contact from the care home reporting that Mrs Y was trying to leave the care home, and that additional 1-1 support had been required. Social services authorised the additional support and asked for an update after the weekend. The care home contacted social services again on Monday to say care staff had been struggling to support Mrs Y, and that due to miscommunication care staff were unaware 1-1 support could be utilised. The social services officer recorded she would ask a colleague to review the situation if Mrs Y did not settle. It is not unusual for people with dementia to be initially very unsettled. The care home submitted an urgent request for a Deprivation of Liberty Safeguard (DoLS) assessment on 3 March 2023. The Council ‘triaged’ the request on 6 March 2023 and classed it ‘high priority’.
25. Mr X believes the placement was unsuitable for Mrs Y, that it was unable to meet her needs, and failed to care for her properly.
26. The records show Mrs Y became increasingly agitated and challenging towards care staff, physically assaulting them on some occasions. Three days into her stay, on 7 March 2023, Mrs Y left the care home and walked into the road unaware of the danger. The police were called, and she was escorted back to the care home. The police questioned the DoLS status. The Council’s crisis team confirmed a DoLS procedure was in process and confirmed 1-1 support for Mrs Y that evening. The team then sent an urgent request to the relevant social service’s team requesting ongoing 1-1 support.
27. The care home submitted a safeguarding notification to the Council on 9 March 2023 about the incident involving the police, and Mrs Y’s continued attempts to leave.
28. An interim DoLS was granted from 9 March 2023 until 16 March 2023. A Best Interest assessor was requested.
29. Records show the Council contacted the NHS mental health team to request its intervention on 10 March 2023. The council officer recorded she had “…explained the current situation and someone will ring me back”.
30. Mr X says the care home manager repeatedly telephoned the family to say carers were struggling to manage Mrs Y’s behaviour and asked the family to speak to Mrs Y in an attempt to calm her. The care home says it did this because the family told care staff to call them if needed, and they thought hearing a familiar voice may reassure Mrs Y when she was distressed. Mr X refutes this and says the family spoke with Mrs X when it became apparent care staff were struggling to cope, and because it appeared to distress Mrs X further, the family requested the care home not to contact them during periods Mrs X was challenging.
31. Mr X contacted social services the following day to discuss Mrs Y’s DoLS status and ask if she was receiving the full prescribed dose of anxiety medication. He says care staff appeared unaware of the DoLS and their responsibilities within it.
32. Records show care staff liaised with an advanced nurse practitioner at the GP surgery in managing Mrs Y’s medication, but Mrs Y was sometimes reluctant to take medication. The nurse practitioner prescribed additional sedative medication to be given as needed.
33. Mr X says the Council failed to fast track a referral to the mental health team and this delayed Mrs Y receiving the correct care.
34. A mental capacity assessment was completed on 18 March 2023. This concluded Mrs Y lacked capacity to make decisions about her care and accommodation needs. A formal Best Interest meeting was held on 21 March 2023. Mrs Y’s family were consulted, and all parties agreed that Mrs Y should remain in the care home for a period of assessment. A standard DoLS was authorised.
35. The Council had regular contact with the care home, and it confirmed Mrs Y was receiving the prescribed medication and that 1-1 support was being provided.
36. Records over the following days show Mrs Y continued to receive 1-1 support and had periods where she was more settled, but at times she displayed challenging behaviour towards care staff and other residents.
37. On 3 April 2023, the care home contacted social services to say they believed Mrs Y needed to be accommodated in a more secure facility.
38. On 14 April 2023, Mr X contacted the Council to request an independent mental capacity Advocate (IMCA) for Mrs Y.
39. On 18 April 2023, officers sent an email to senior managers requesting Mrs Y be allocated a social worker urgently. Until this point the crisis team had been dealing with the situation.
40. On 21 April 2023, the care home contacted social services to say they could no longer manage Mrs Y. The officer told the care home the Council had been unable to contact the NHS mental health team and advised the care home to administer the additional medication prescribed by the advanced nurse practitioner, and if a crisis occurred over the weekend, to contact the crisis team and request a Mental Health Assessment.
41. Later the same day the care home contacted the crisis team again to report an escalation in Mrs Y’s behaviour and to say paramedics were in attendance. The care home enquired about an alternative placement for Mrs Y, saying it could no longer support Mrs Y. The crisis team officer said a request had been made for urgent allocation of a social worker and apologised for the delay. The officer asked the care home if Mrs Y’s family could provide support. The care home said Mrs Y had spoken to her family on the telephone, but this only calmed her for the duration of the call. It was decided that Mrs Y should be removed from the care home and taken to hospital “…due to care home breakdown”.
42. Mrs Y was later detained in hospital under the Mental Health Act. She remained under NHS psychiatric care until August 2023, when she discharged to a different residential care setting. The placement was arranged by the Council.
43. As Mrs Y had been detained under Section 3 of the Mental Health Act, she was entitled to free after-care under section 117 of the Mental Health Act, so her residential placement was free of charge.
44. Mrs Y remains in the placement to date.

Care costs

45. Mr X says the Council provided conflicting advice about the care costs. He says the family were told the Council would fund the care for the first 12 weeks of the placement. He says the family have now been threatened with legal action for non-payment of care fees. The family are reluctant to pay the outstanding care fees because of this and because they believe the care provided was inadequate.
46. The records show Mrs Y was charged the full cost of her stay at the care home because a financial assessment was not completed. The Council provided a copy of a letter sent to Mr X which explains the charging process for people who choose not to declare their financial status, as was the case for Mrs Y. The letter confirms Mrs Y would be charged the full cost of her care for the period she was in respite care, (2 March 2023 – 24 April 2023).
47. Mr X holds Lasting Power of Attorney for Mrs Y for health, welfare, property and financial affairs. The Council’s records show Mr X signed a form confirming the family had been provided with financial information about charging. The social worker recorded Mrs Y’s family were looking for an emergency EMI bed with no third-party top-up fee. The Council provided a copy of a financial information letter signed by Mr X on 1 March 2023, in which it states, “You will be charged from the day your care services commence”.
48. Mrs Y’s daughter contacted the Council on 7 March 2023 to enquire about moving Mrs Y to a care home in another area. The records show the officer advised the Council would commission care in a care home of the family’s choice and fund care fees at the rate charged by that council, until Mrs Y’s property was sold, when she would then become a self-funder, and that if/when Mrs Y’s funds fell below the capital threshold, the family would need to contact the council in which the home was located to request assistance with funding.

Complaint handling

49. Mr X submitted a formal complaint to the Council on 1 October 2023. He received a written response on 15 December 2023. He is dissatisfied with the response saying it shows bias, lacks understanding, and does not address all the issues raised.

Analysis

50. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them.
51. It is clear Mrs Y and her family were in difficult circumstances following the death of Mrs Y’s husband. The Council responded appropriately to the family’s request for support. A social services officer visited Mrs Y and completed an initial needs assessment within 24-hours of the request. There is no fault by the Council here.
52. There is no fault in the Council’s initial assessment of Mrs Y’s care needs. The assessment is detailed and comprehensive and identified Mrs Y had cognitive impairment. She was placed in a care home registered to provide care for people with such impairment. Neither the Council nor the care home could have known the degree of impairment or the level of Mrs Y’s distress and/or challenging behaviour at the point of admission to the care home. There is no fault by the Council here.
53. There is no fault in the way the Council dealt with the request for a DoLS. An urgent authorisation was granted with a subsequent standard authorisation issued within 21 days. The Council assessed the application properly and all the relevant paperwork was completed without fault. A DoLS is location specific and cannot be transferred. A further DoLS was then required when Mrs Y was admitted to hospital. A DoLS was not required when Mrs Y was detained under the Mental Health Act. A further authorisation was required when she was discharged from a psychiatric setting to a different residential care setting. There is no fault by the Council here.
54. Mrs Y’s distress and determination to leave the care home quickly became evident. The care home acted appropriately in alerting the Council and seeking authorisation of additional support staff. I cannot find the care home at fault for allocating Mrs Y a room next to a fire escape. Her desire to leave was so great that she was intent of finding a route out, regardless of the location of her room. During periods of intense distress, Mrs Y had 1-1 support and a carer was stationed outside her room. There is no fault here.
55. It is not possible to come to a definitive finding on the care home’s understanding of the emergency DoLS authorisation. However, I have no reason to doubt Mr X’s account that there was some confusion amongst care staff. I note the Council refutes the allegations saying care staff were aware of the DoLS authorisation and its powers. However, it was Mr X who was present at the time, not the Council. This care home may wish to use this as a learning experience.
56. The care home sought advice and support from an advanced nurse practitioner based at the GP surgery in managing and optimising Mrs Y’s medication. This was good practice.
57. It was not the Council’s role to diagnose Mrs Y with dementia, this is the role of the NHS. However, it should have allocated a social worker to Mrs Y as a matter of priority. A named social worker would have provided a point of contact for the care home and the family and enabled a more cohesive multi-disciplinary approach in dealing with the situation. An allocated officer would have had a better overview of the changing situation, the support Mrs Y required and been able to reassess the situation as required.
58. I do concur with Mr X that earlier mental health intervention should have been sought sooner. The Council was aware the care home was struggling to manage Mrs Y’s behaviour and that the situation was escalating. Officers did seek input from the mental health team, but when this was not forthcoming sufficient efforts were not made to chase it up and/or explain the increasing urgency. Earlier intervention may have led to a different outcome, and spared Mrs Y the distress of a crisis admission to hospital.
59. The Council’s records show Mr X was provided with written information about residential care costs, this information made clear services are charged from the day they commence. There is no suggestion of free care during the temporary period. The 12-week period of free care only applies when a placement has become permanent. Mrs X’s placement was temporary so this arrangement would not apply. I cannot comment on Mr X’s claim he was told differently by a worker from social services. If Mr X chose not to complete a financial assessment, then the Council was within its right to charge the full cost of the care. Any subsequent 12-week disregard or funding application would be subject to full financial disclosure from the family, which they chose not to do.
60. In respect of the Council’s complaint response. The Council took too long to respond to the complaint, which the author of the letter acknowledged.
61. I cannot agree with Mr X that the complaint response shows bias. For the most part the response letter addresses the issues raised and references records in support of this. However, the author failed to acknowledge the delay in the allocation of a social worker and the failure to properly chase the mental health referral. For this the Council should apologise to Mr X.
62. Overall, there is evidence of some fault by the Council. The delay in allocation of a social worker and a failure to chase up a mental health referral has left a level of uncertainty about the impact this may have had on Mrs Y’s care.

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Agreed action

63. The Council should, within four weeks of the final decision:

• provide Mr X with a written apology for the failings set out in paragraph 62 above.

64. Within three months:

• review the procedures for prioritising allocation of a social worker in situations where care homes are seeking constant support from the crisis team in managing the behaviour of a resident;
• review procedures for monitoring and chasing mental health referrals;
• discuss possible learning from the complaint with the care home and consider if any further training in respect of DOLS is required.
• provide this office with evidence it has complied with the above actions.

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Final decision

65. There is evidence of some fault by the Council, in that it delayed allocating a social worker to Mrs Y and failed to chase up a mental health referral. This has left a level of uncertainty about the impact such intervention may had on Mrs Y’s care.
66. The above recommendations are a suitable way to settle the complaint.
67. It is on this basis; the complaint will be closed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman