Summary: Mrs K complains the Council failed to consult her regarding her adult son’s move to a new placement. She says she did not agree to it, and she now finds it very difficult to visit him. There was fault by the Council. It has agreed a remedy.

The complaint

1. Mrs K says the Council did not properly consult her when it decided to move her adult son Mr D to a residential home placement. This has caused distress and inconvenience as Mrs K says it is too far away and the family cannot visit him as they used to. She has asked the Council to pay for their visits.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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)

Back to top

How I considered this complaint

4. I have discussed the complaint with Mrs K and considered the information she provided. I have made enquiries of the Council and considered the comments and documents it provided. Mrs K and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

Back to top

What I found

Legislation and guidance

Mental capacity act

5. 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.

Best interest decision making

6. 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. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
7. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Court of Protection

8. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
9. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection:
• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
• appoints deputies to make decisions for people lacking capacity to make those decisions;
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid; and
• removes deputies or attorneys who fail to carry out their duties.

What happened

10. Mr D is disabled and has learning difficulties. He was living in a care home. Mrs K was able to visit him at the home, but it took around an hour and a half to get there.
11. In October 2023 Mr D went into hospital. He was unable to return to the care home because it gave him notice.
12. The Council considered residential home placements for Mr D when he was due to be discharged from hospital.
13. The Council and health service held a multi disciplinary team meeting to discuss the options available taking account of Mr D’s needs. It considered three alternative care homes, and proposed that Mr D moved to care home A.
14. The Council started a Mental capacity assessment. It assessed that Mr D did not have mental capacity to make a decision about where he lived.
15. The Council contacted Mrs K about the home it proposed the day before it planned to move Mr D. Mr D’s social worker recorded notes regarding the discussion. The social worker gave details of the home. Mrs K said she felt the home was too far away and the family would never see Mr D. They had wanted him to live at home.
16. The social worker reminded Mrs K about concerns for Mrs K’s safety if Mr D returned home. She explained that the proposed home was a similar distance from Mrs K’s home as the previous home. In addition, carers would arrange for Mr D to maintain contact with the family by telephone, Mr K visiting Mrs K’s home town and Mrs K visiting the home. However, Mrs K repeated that it was too far.
17. The Council made a Best Interests decision the same day. It decided that care home A was the most suitable placement to meet Mr D’s needs and noted its reasoning for its decision.
18. In the Best Interests form under “consultation” the Council noted its discussion with Mrs K and her comments that the home was too far.
19. In response to the question “was there a genuine disagreement with interested parties? If so you should consider referring the matter to court” the Council noted it understood that family was important and regular contact was need. But it noted that the proposal for him to move back home did not consider the risks, support needed, impact on them or what was best for Mr D. It said that the new Care Provider had agreed to facilitate visits to Mrs K’s home town.
20. In response to my enquiries the Council said that the Council’s social worker stated that she did not consider that Mrs K was challenging the placement itself, but rather the distance in travelling to it.
21. The day after the best interests decision and the social worker’s discussion with Mrs K, Mr D moved to Care Home A.
22. In November 2023 Mrs K complained to the Council that it had a meeting with health service and hospital staff and decided to move Mr D. But it did not invite Mrs K and did not tell her that he was moving. She only found out on the day when the hospital called her. She said she did not agree with the move because it was too far and as his parents, they should have a say.
23. In its response to Mrs K’s complaint the Council agreed that it should have managed the disagreement about Mr D’s placement via the Court of Protection which could make a decision about what was in Mr D’s best interests.
24. The Council noted Mrs K said there had been no further plans for visits. It asked that the social work team helped to arrange this. It recommended that Mrs K was supported by the social worker to agree a regular contact plan. It also said it had taken steps to address this by making recommendations to the social work team and the social workers involved.
25. In its response to my enquiries the Council confirmed that the social work team did not advise Mrs K that it had made a decision on his placement and that he had moved.
26. The Council had helped arrange visits in November and December and then monthly from March 2024. It said it had also worked with Mrs K around budgeting for visits to see her son.
27. The Council said is no longer responsible for Mr D’s care because it from late December 2023 it is commissioned by the health service under Continuing Health Care. Therefore, it cannot make a best interests decision and give Mrs K an opportunity to comment or challenge the decision.

Analysis

28. I have not found fault with the process of the Council’s assessment or the decision making. The Council considered Mr D’s needs, the placements available, and the least restrictive placement. It also considered Mrs K’s wishes and comments.
29. The social worker explained why she did not take Mrs K’s comments as a challenge to the placement decision. However, the Council confirms it should have managed the disagreement via the Court of Protection.
30. This was fault, as the Council should have explained what action Mrs K could take to pursue her disagreement with the Best Interests decision. While this is fault, it is not certain that Mrs K would have pursued a challenge to the Court of Protection. The Council confirmed it was at fault in December 2023, but Mrs K has not stated that she wished to pursue a challenge against the decision.
31. The Council failed to advise Mrs K about its decision and confirm when her son was moving. This was fault, and caused distress to Mrs K. She said that she was very upset by the Council’s actions, and she does not trust the adult social care team.
32. I have seen that the Council’s commissioned care home arranged visits in November and December, and then again between March and June. It assisted Mrs K regarding budgeting for these visits. I consider this went some way towards the remedying the personal injustice to Mrs K. The Council also said it has taken steps to address the fault with social workers. This should prevent the same fault affecting others.

Back to top

Agreed action

33. I recommend that within one month of my decision the Council
• apologises to Mrs K for failing to consider her disagreement with its Best Interests decision as a challenge via the Court of Protection. The apology should be in accordance with our Guidance on making an effective apology.
• apologises to Mrs K for failing to advise her that her son had moved.
34. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

35. The Council has agreed an appropriate remedy. I have completed my investigation and closed the complaint.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman