Summary: There is no evidence of fault by the Council in the way it dealt with Mr X's care arrangements. It acted properly and in accordance with the law. There is no fault in the charges levied for Mr X’s residential stay. There is fault in the way the Council dealt with Mrs X’s complaint. It delayed in responding and failed to address all points of complaint.

The complaint

1. Mrs X complains about the way in which the Council dealt with her late husband, Mr X’s, care arrangements. She says the quality of care provided to him in a residential care home was poor, and because of this care charges should be waived.

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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. 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:
• discussed the complaint with Mrs X, and considered supporting information she provided;
• considered the correspondence between Mrs X and the Council, including the Council’s response to his complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Mrs X and the Council an opportunity to comment on a draft of this document.

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What I found

Relevant legislation

The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014

6. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Guidance.). We consider the 2014 Regulations and the Guidance when determining complaints about poor standards of care.

The Care Act 2014

7. Section 42 of the Care Act 2014 says a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.

The Mental Capacity Act 2005 and Code of Practice to the Mental Capacity Act

8. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make 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.
9. 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. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests. The decision maker must also consider if there is a less restrictive choice available that can achieve the same outcome.
10. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The 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. 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.

Key facts

12. The Council has requested the Ombudsman deal with some of the information it supplied during the course of this investigation under section 32(3) of the Local Government Act 1974. Section (32(3) prohibits the disclosure of information obtained during the course of an investigation. This means I unable to share the information with Mrs X or go into any detail in this statement.
13. Mrs X can be reassured that I have considered all the Council’s records objectively and given careful consideration to the issues she raised.
14. Mrs X says Mr X received poor care in a residential care home commissioned by the Council. She says there were delays in care planning and poor communication with care staff and council officers. She says care staff refused to allow Mr X to keep his mobile phone and on some occasions she telephoned Mr X, care staff refused to let him speak to her. She says the home lost a coat and expensive suitcase belonging to Mr X.
15. Mr X had dementia along with other physical health issues. In September 2022, he was discharged from hospital into a residential care home under the ‘discharge to assess scheme’. The scheme enables people who are medically fit to be discharged from hospital into a setting where they receive support and further assessment to establish their ongoing needs. Care is free for up to six weeks.
16. A social worker visited Mr X twice in the first week of his stay at the residential care home. Needs assessments were not commenced because Mr X had visitors.
17. A week later, Mr X was allocated a different social worker. The social worker contacted Mrs X to inform her about the change in worker and to say she (social worker) would be completing a needs assessment of Mr X.
18. The following day Mrs X contacted the Council to say she wanted Mr X to return home. Due to ongoing an safeguarding investigation, this was not possible. The Council transferred Mr X’s placement from discharge to assess, to a short-term residential placement. The social worker contacted Mrs X on 28 September 2022 to inform her about the change in placement and to say she (social worker) would be visiting Mr X the following day to commence an assessment of his ongoing care needs. The records show the social worker informed Mrs X that the placement had become chargeable, subject to a financial assessment. A subsequent financial assessment concluded Mr X had capital above the threshold and he was deemed to be a full-cost payer.
19. The needs assessment of Mr X concluded he should remain in residential care until the safeguarding investigation had completed.
20. Mrs X disagreed with the Council’s decision. She contacted it on numerous occasions to say Mr X was distressed and that he wanted to return home. The social worker had ongoing contact with the care home. The care home’s records did not support Mrs X’s claim that Mr X was distressed.
21. The records show the social worker told Mrs X that Mr X would remain at the care home until the safeguarding investigation had been completed, and a robust support plan was in place, with appropriate equipment, to ensure safe discharge. Mrs X was not happy about this, but she was agreeable.
22. Mrs X told the social worker she had made provisional arrangements to employ private carers for Mr Y’s return home. The carers later deemed they were unable to proceed.
23. The social worker completed a mental capacity assessment of Mr X to determine his ability to make decisions about his care and accommodation needs. This concluded Mr X lacked capacity. A deprivation of liberty order was sought and subsequently granted on 3 November 2022. The Council sought an advocate for Mr X on 9 November 2022 for representation at pending best interest meeting. The social worker informed Mrs X the same day.
24. I have had sight of all documentation relating to safeguarding, mental capacity, and deprivation of liberty.
25. The Council’s records show the communication between the social worker and Mrs X, and that Mrs X was kept appraised, where appropriate, of matters relating to Mr Y.
26. On 28 November 2022, Mr X had a fall and was admitted to hospital, where was found to have a broken hip.
27. The records show the social worker contacted the hospital to inform staff Mr X was awaiting allocation of an advocate for a pending best interest meeting about his ongoing care and accommodation needs. Nursing staff said there were no plans for discharge at that time.
28. Mr X passed away in hospital on 2 January 2023.
29. Mrs X received a bill for Mr X’s residential care from 9 October 2022 to 13 December 2022. Mrs X believes she should not have to pay because she was not informed about charges, and because of delays in care planning, poor care and lost personal items.
30. Mrs X complained to the Council in March 2023. She received a response in June 2023, which she was dissatisfied with. Mrs X responded to the complaint in August 2023, challenging the outcome and saying not all her points of complaint had been considered. She received a written response on 14 February 2024. The author of the letter apologised for the delayed response. She (author) addressed four of the twelve points Mrs X raised and said the remaining eight should be addressed to the care home directly. The point of complaint relating to changes of social workers was partially upheld, the author explained this was not usual practice and acknowledged this must have been challenging for Mrs X. The author went onto say this had not delayed Mr X’s home as a support plan could not be completed until ‘all avenues had been explored’. Points of complaint relating to delayed return home and information about charging were not upheld, reasons for which were explained.
31. Mrs X was dissatisfied with the response and unhappy that many points of her complaint still had not been addressed.

Analysis

32. Although I am unable to go into any detail about the information I have seen, Mrs X can be reassured I have carefully considered all the information.
33. I have found no evidence of fault by the Council in the way it dealt with Mr X’s care arrangements. It acted properly and in accordance with the law.
34. I can confirm all documentation relating to safeguarding, mental capacity assessments and deprivation of liberty were completed properly and in accordance with the law.
35. The Council acknowledges three changes in social worker and apologised. Whilst I understand this must have been difficult for both Mr & Mrs X, it did not have a significant impact on the care planning process or prevent Mr X returning home. Therefore, I find no fault by the Council here.
36. I am satisfied Mrs X was kept informed about the care planning process for Mr X. She may not have agreed with it, but that does not make it wrong. There is no fault by the Council here.
37. In respect of charging for Mr X’s care. I am satisfied Mrs X was aware the care was chargeable and that she was given sufficient information about this. There is no fault by the Council here.
38. The Council’s response to Mrs X’s complaint was poor. It delayed in responding to both Mrs X’s complaints and failed to address all points of complaint. As the commissioner of the care, the Council was responsible for the actions of the care home, and the quality of care provided. It should have considered all points of Mrs X’s complaint. For this it should apologise.

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Agreed Action

39. The Council should apologise to Mrs X for the delayed complaint response and for failing to address all points of her complaint.

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Final decision

40. There is no evidence of fault by the Council in the way it dealt with Mr X’s care arrangements. It acted properly and in accordance with the law.
41. There is no evidence of fault in the charges levied for Mr X’s residential stay.
42. There is evidence of fault in the way the Council dealt with Mrs X’s complaint.
43. 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