Summary: Mrs X complains the Council failed to arrange a transfer for her father, Mr Y, to a care home closer to where his wife lived in September 2023. The Council accepts it failed to act on the request to move Mr Y to a care home closer to his wife in 2022. The Council also failed to respond promptly to the requests to move Mr Y. This prevented him from moving to another care home and meant he did not see his wife before he died in December 2023. The Council needs to apologise and make a symbolic payment to his family. It also needs to take action to make sure this does not happen again.

The complaint

1. The complainant, Mrs X, complains the Council failed to arrange a transfer for her father to a care home closer to where his wife lived in September 2023.

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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 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)
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 have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the information the Council has provided in response to our enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mrs X and the Council, for me to consider before making my final decision.

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What I found

What happened

5. Mrs X’s father, Mr Y, had dementia. When he left hospital in July 2022, he moved to care home A. This cost £925 a week, which included a “market premium” of £190 a week (in 2023 the cost increased to £1,000.59 a week). Care home A was a significant distance away from the home Mr Y had shared with his wife. The Council told Mr Y’s family it would do an early review of the placement (with a view to identifying a care home closer to his wife). Mrs Y remained in the family home with a package of care comprising four calls a day.
6. The family asked about a move to a care home closer to Mr Y’s wife on 1 August. Officers noted an application for long-term funding would need to be made to the Council’s Adult Funding Panel. Mrs X chased the request on 25 August, but did not receive a response.
7. Mrs X contacted the Council again on 1 September. She said care home A was too far away and a care home closer to her mother’s home had room for her father. The Council sent the request to the wrong team and no action was taken.
8. In October officers applied to the Council’s Adult Funding Panel for long-term funding for Mr Y’s placement. Officers decided it would be detrimental to Mr Y’s wellbeing to move him to another care home. The Council did not involve Mr Y’s family in that decision.
9. Mr Y’s family contacted the Council on 16 May 2023 about moving him to a care home closer to Mrs Y. They said he had not fared well at care home A having:
• caught scabies which went untreated for months;
• lost a lot of weight;
• been rushed to hospital at the weekend with sever pneumonia.
10. The Council acknowledged the request and passed it on to the relevant team. It provided the family with a contact number, but they were unable to get a response. They wrote again on 1 June, saying Mr Y would benefit from regular family visits if he was placed closer to them.
11. On 16 August the Council gave care home A four weeks’ notice, on the basis Mr Y would move to care home B, which had agreed to take him.
12. In September officers submitted a request to the Council’s Adult Funding Panel to fund a more expensive placement in care home A closer to Mrs Y’s home. The application said Mr Y would benefit from being closer to his wife. It said Mrs Y had her own care needs and could no longer travel to see her husband, having only seen him three times since he moved to care home A. It said Mr Y could not tolerate the hour-long journey currently needed to visit his wife, but they could both tolerate the 10-minute journey to/from care home B. The cost of the placement at care home B was £1,200 a week.
13. On 13 September the Panel turned down the application, “pending further work and market exploration”. The Council continued looking for alternative placements closer to Mrs Y. It told care home A the Panel turned the application down because it had only been looking for alternative placements for three weeks and care home B cost more than care home A. It asked if care home A would accept weekly seven-day notice periods, as it had already given four weeks’ notice. Care home A agreed to this subject to two conditions, which the Council accepted.
14. On 14 September Mrs X told the Council a charity may be able to help fund an alternative placement.
15. Mrs X complained to the Council on 28 September about the failure to move Mr Y to another care home, much closer to his wife. She said:
• her father had consistently been asking to move to be closer to his wife;
• the Council had failed to take account of her mother’s needs, having been married to Mr Y for 60 years;
16. On 9 October Mrs X confirmed the charity would contribute £140 a week.
17. The Council identified alternative placements costing £1,200 and £1,250 a week. An application to the Council’s Adult Funding Panel broke the funding down for care home B’s placement as follows:
• £396 for accommodation
• £460.20 for 32.5 hours of one-to-one support
• £140 from a charity, for which the Council had no documentary evidence
• £203.80 for a market premium
18. On 11 October the Panel agreed in principle to the move, but referred the decision on paying the market premium to a senior manager, who confirmed agreement the next day.
19. On 13 December the Council gave care home A four weeks’ notice to move Mr Y. This meant he was due to move on 10 January 2025. The Council told Mrs X the rolling seven days’ notice lapsed after three months and reverted to 28 days. The Council asked care home B if it would keep a place open for Mr Y until 10 January, which it agreed to do.
20. Mr Y died before he could move to care home B. Mrs Y died two weeks after her husband’s funeral. Mrs X puts her parents’ deaths down to the failure to ensure they could live close enough to see each other.
21. Mrs X complained to the Council in January 2024. Among other things, she complained about the failure to move her father to a care home closer to her mother, which prevented them from seeing each other for a year and a half.
22. When the Council replied in June, it said:
• In September 2023 the proposed move had not been in line with its fair and affordable care policy.
• There had been a lack of timeliness in responding to requests.
• It had failed to clearly explain its policies, practices and protocols.
• It should have regularly refreshed its search for an alternative placement and apologised for not doing this.
• The location of care home A resulted in Mr Y losing contact with his wife.
• It had reviewed its processes and made changes to ensure this did not happen again.

Legal and administrative background

23. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to including:
• the right to life,
• freedom from torture and inhuman or degrading treatment or punishment,
• liberty and security of person,
• a fair hearing,
• respect for private and family life,
• freedom of expression,
• freedom of religion,
• freedom from forced labour, and education.
24. The Act requires all local authorities - and other bodies carrying out public functions to respect and protect individuals’ rights.
25. Not all rights operate in the same way. Instead, they break down into three separate categories:
• Absolute rights: those which cannot be taken away under any circumstances.
• Limited rights: those that can be taken away in certain circumstances; and
• Qualified rights: those rights where interference may be justified to protect the rights of others or wider public interest. Note that any interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.
26. Our remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But we can decide whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
27. In practical terms, councils will often be able to show they have complied with the Human Rights Act if they can:
• show they have considered the impact their decisions will have on the individuals affected; and
• there is a process for decisions to be challenged by a review or appeal.

Is there evidence of fault by the Council which caused injustice?

28. The Council accepts it failed to act on the request to move Mr Y to a care home closer to his wife in 2022. Mrs X found an alternative placement in September, but the Council failed to follow up on this. In October it decided a move would not be beneficial to Mr Y. There is nothing to explain how the Council made this decision or to show it involved his family in that decision. If Mr Y lacked the capacity to make that decision for himself, a decision should have been made in his best interests under the Mental Capacity Act 2005. This could not be done without involving Mr Y’s family, who had power of attorney. The failure to do so was fault by the Council.
29. The Council was also slow to act on the request for an alternative placement in May 2023, taking no action until August. Despite ageing to fund the placement at care home B in October, the Council failed to give notice until December, by which time it had to give 28 days’ notice, rather than the seven days agreed in September.
30. There is also nothing to suggest the Council took account of the human rights implications (respect for private and family life) when making its decisions. That is further fault by the Council.
31. The Councils failings prevented Mr Y from living closer to his wife and from having contact with her, and more regular contact with other members of his family. This caused avoidable distress to all concerned. Sadly it is no longer possible to remedy the injustice to Mr & Mrs Y, as they have both died. Nor can the Ombudsman say whether Mr & Mrs Y would have lived longer if they had been able to see each other in 2023. However, the Council needs to apologise to Mr & Mrs Y’s family and make a symbolic payment to them for the distress caused.
32. The Council has not said what action it has taken to ensure other people are not treated in the same way. It needs to provide evidence that it has taken satisfactory action. It also needs to take action to ensure officers take account of human rights when necessary.

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Agreed action

33. I recommended the Council:
• Within four weeks, writes to Mrs X apologising for the failure to act promptly to the requests to move her father to a care home closer to his wife, and pays the family £500 for the avoidable distress caused;
• Within eight weeks provides evidence of the changes it has made to prevent other people being treated in the same way, and takes action to ensure officers follow the principles of the Mental Capacity Act and take account of the Human Rights Act when necessary.
34. The Council has agreed to do this. It should provide us with evidence it has complied with the above actions.

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Final decision

35. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman