Summary: Mrs D complained about the Council’s actions in relation to her father, Mr J’s residential care. She says as a result he was in hospital for longer than he needed to be, has been in an unsuitable care home for over a year and has had to appeal to the court of protection. We found the Council delayed acting on Mr J’s request to move abroad, which caused him some uncertainty. The Council has agreed to apologise to remedy the distress caused.

The complaint

1. Mrs D complains on behalf of her father, Mr J, that the Council:
1. Delayed finding a suitable placement for him in May 2023; as a result he had to stay in hospital until October 2023.
2. Failed to review the temporary care home placement in November 2023 and respond to her concerns that it does not meet his needs and is too far from family. As a result he has remained in an unsuitable care home for over a year, causing distress.
3. Is wrongly allowing Mr J to pursue a move abroad, although this is not in his best interest and he does not have capacity to make that decision. As a result the family are having to appeal to the court of protection.

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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. 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)
4. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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 spoke to Mrs D about her complaint and considered the information she sent, the Council’s response to my enquiries and:
• The Care Act 2014
• The Care and Support Statutory Guidance
• The Mental Capacity Act 2005
• The Mental Capacity Act Code of Practice.
7. Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Care and support

8. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
9. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan. Councils should keep care and support plans under review, at least every 12 months.
10. Section 67 of the Care Act 2014 requires councils to arrange an independent advocate to facilitate the involvement of a person in their care and support assessment, and the preparation and review of their care and support plan, if two conditions are met:
• That if an independent advocate were not provided then the person would have substantial difficulty in being fully involved in these processes; and
• There is no appropriate individual available to support and represent the person’s wishes who is not paid or professionally engaged in providing care or treatment to the person or their carer.

Residential care

11. 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. A person must be able to choose alternative options, including a more expensive setting, where a third party is willing and able to pay the additional cost. This is called a ‘top-up’.
12. A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt a permanent admission is required. The person’s stay should be unlikely to exceed 52 weeks, or in exceptional circumstances, unlikely to substantially exceed 52 weeks. A decision to treat a person as a temporary resident must be agreed with the person and/or their representative and written into their care plan.

Mental capacity

13. The Mental Capacity Act 2005 says a person must be presumed to have capacity to make a decision unless it is established that he or she lacks 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.
14. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. An assessment of someone’s capacity is specific to the decision to be made at a particular time. The Code of Practice says that if a person’s capacity fluctuates, it may be possible to put off the decision until the person has the capacity to make it.
15. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
16. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision and what is in the person’s best interest.
17. 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 Mental Capacity Act 2005 sets out the steps that decision makers must follow to determine what is in a person’s best interests.

Lasting Power of Attorney

18. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This allows a person (‘the donor’) when they have the capacity to do so, to choose one or more persons to make decisions for them, if they become unable to do so themselves. The 'attorney' is the person chosen to make a decision on the donor’s behalf.
19. There are two types of LPA: Property and Finance and Health and Welfare. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.
20. Any decision made by the attorney has to be in the donor’s best interests, in line with the Code of Practice.

Deprivation of Liberty Safeguards (DoLS)

21. 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.
22. 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. It is the responsibility of the care home or hospital to apply for authorisation.
23. If there is a conflict about a deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection.
24. 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.

What happened

25. I have set out the key events. This is not meant to detail everything that happened.

Background

26. Mr J had previously lived in the UK for many years. He had been living in Country X but after his health deteriorated, he moved back to the UK to live with his daughter, Mrs D, in late 2022.
27. Mrs D asked the Council to assess Mr J’s care and support needs. It started to do so in March 2023. Mr J told the Council he wished to return home, to Country Y, after first spending time in Country X to sell his property. The Council had some doubts about Mr J’s capacity and a mental capacity assessment was started but not completed because Mr J was admitted to hospital.

Period in hospital – March to October 2023

28. By April, Mr J was medically fit for discharge from hospital. The social worker assessed him on 25 April. She found there were concerns about Mr J returning to Mrs D’s property as it was not suitable, there were concerns about him falling and whether he could receive sufficient care and support in the community. It was therefore felt that residential care would be the best option. The assessment notes that Mr J had a cognitive impairment and there were doubts about his capacity.
29. The care and support plan of 11 May said that the plan was for Mr J to move into long-term residential care. The Council started searching for a suitable placement.
30. Care Home 1 offered a placement. Mrs D visited but was concerned about the room as it had steps and no ensuite bathroom. Mr J told the hospital he did not wish to move to a care home as he wished to return to Country Y. Mrs D took Mr J to see Care Home 1 but he refused to leave the car.
31. The Council assessed Mr J’s capacity. This was completed on 11 June and found he did not have the capacity to decide on his care and support. A decision was made that it would be in his best interest to move into residential care. Care Home 1 then said its placement was no longer available.
32. As Mr J was refusing to leave hospital, the Council got legal advice which said an application to the Court of Protection would be necessary and a care home placement available. Mr J was diagnosed with dementia on 30 June.
33. Care Home 2 offered a placement on 4 August. Mrs D did not want Mr J to move there as it was a 45-minute drive from her home. Due to her other family commitments this was too far for her to visit Mr J daily and keep him involved in her family life. The Council considered it was a reasonable distance as it was less than one hour. Mrs D asked about Mr J moving into supported living accommodation. She also asked about an alternative care home but this required a third-party top-up which was not affordable.
34. The Council was concerned that Mr J would not agree to any move. To support an application to the Court, the Council carried out a further capacity assessment on 11 August. This found that Mr J had capacity to decide about his discharge from hospital to a temporary residential care placement. Mr J told the social worker that he still wished to return to Country Y but agreed that he no longer needed to be in hospital. The capacity assessment report says:

“It was explained to Mr J that at present it would be possible to arrange a temporary placement where his care and support needs would be further assessed and possibly support him with the move to Country X if deemed appropriate. He agreed with this.”

35. Care Home 2 said a placement would be available on 20 September. Mr J then told the hospital staff he did not wish to move there and refused to leave. As there had been different capacity assessments, a referral was made for an independent advocate. Mrs D applied for an LPA.
36. A further capacity assessment was done on 6 October. This again found Mr J had capacity to decide where his care and support needs would be best met. The options discussed were to move into residential care or for the Council to make a housing application and set-up a council-managed package of care. Mr J said he preferred to move to a care home and make plans to go to Country Y and did not wish to remain in hospital. Mr J moved to Care Home 2 on 9 October.

Period in Care Home – October 2023 onwards

37. Care Home 2 applied for DoLS authorisation as Mr J was unhappy about moving in. Mrs D asked the Council whether the stay in Care Home 2 was permanent or temporary, as Mr J had thought he would only be there for one week and had not agreed to a long-term stay. The Council replied on 25 October that the care and support plan had been for a long-term residential placement which Mr J had agreed to.
38. The Council reviewed Mr J’s care and support on 25 October. The review found no concerns about Mr J’s capacity. It found Mr J should remain in Care Home 2 whilst the social worker explored his long-term aim of moving to Country Y. I have not seen evidence of any further action by the Council.
39. In March 2024, Mrs D asked the Council about carrying out a care and support review. She also asked whether Mr J could move to a care home nearer to her.
40. The Council reviewed Mr J’s care and support on 19 April. The review found no concerns about Mr J’s capacity. He wanted to return to Country Y so the social worker asked the GP about a fitness to fly check and agreed to contact relatives.
41. In May, Mrs D emailed the Council with concerns. She disputed that Mr J had the capacity to decide to move to Country Y and was concerned he would not receive sufficient care and support there. Mrs D asked for a DoLS assessment.
42. The DoLS assessment found on 17 June that Mr J lacked capacity to decide where to live. A best interest decision was made that he should remain at Care Home 2. The DoLS was authorised for eight months to allow Mr J time to arrange to return to Country Y. An independent advocate was appointed in case Mr J wished to challenge the DoLS decision.

Mrs D’s complaint

43. Mrs D complained to the Council on 26 July that Mr J had been in Care Home 2 for too long, given that the Council considered he had capacity and he wished to leave. She asked why the Council’s view differed to that of the DoLS assessor. Mrs D considered that if Mr J did not have capacity, it was her decision as Attorney where he should live. She did not want him to remain in Care Home 2 as it was too far from her.
44. The Council replied that capacity assessments were time and decision specific. It said another would be needed to clarify whether the DoLS decision overrode the Council’s.
45. Since coming to the Ombudsman, Mr J has appealed to the Court of Protection about the DoLS decision as he objected to the placement in Care Home 2.

My findings

46. Decisions about what is in Mr J’s best interest and whether he has the capacity to make decisions are for the Court of Protection to determine. I have not considered those.
47. Mrs D complained to us that the Council had delayed finding a suitable placement for Mr J in May 2023. As a result he had to remain in hospital until October 2023.
48. I have seen no evidence of drift or delay by the Council from April to October 2023. I have described what happened above. The Council looked for suitable placements and considered what actions to take when Mr J refused to leave hospital. It assessed his care and support needs and his capacity to decide where to move to. I do not find fault.
49. Mrs D says Mr J has been in Care Home 2 for too long and that it is an unsuitable placement.
50. The Council reviewed Mr J’s care and support needs about two weeks after he moved into Care Home 2. This is in line with the statutory guidance which says there should be an initial ‘light touch’ review of the care plan 6-8 weeks after it is made. I do not find fault.
51. I have seen no evidence that Care Home 2 does not meet Mr J’s needs. The DoLS conditions refer to Mr J needing an area of the garden and culturally specific activities but raises no concerns about isolation or language. The Council was aware of Mrs D’s concerns about its distance from her but deemed it acceptable as it was within an hour. It and the DoLS assessor have decided it is in his best interest to remain there. There is no fault in the way these decisions were made, so I cannot challenge them. I do not find Mr J has been in an unsuitable care home.
52. Mrs D says her father’s stay in Care Home 2 was meant to be temporary. Temporary residential care is when someone may not need to remain in residential care for longer than a year. The care and support assessment and care plan of May 2023 say that Mr J required long term residential care. This is because the Council felt he would require 24-hour support seven days a week for the long-term. Although Mr J wished to ultimately leave the UK and return to Country Y, this does not mean his stay in Care Home 2 was “temporary”.
53. However, I find communication with Mr J and the family could have been clearer. The discussion with Mr J during the August 2023 mental capacity assessment stressed that he would be able to plan to leave Care Home 2 and the UK and referred to his move to Care Home 2 as temporary. The Council could have explained the situation better, i.e. that it was a long-term placement but it would support Mr J to move abroad if he wished, though this would take some time. However, the Council clarified the situation in its email to Mrs D on 25 October, so I do not consider there was significant injustice caused.
54. I have seen no evidence of any action being taken by the Council to support Mr J’s request to move abroad from October 2023 to April 2024. This is fault as the care and support plan of October 2023 says the Council will explore this option.
55. This has caused uncertainty for Mr J as he will never know whether, if there had been a fitness to fly check or contact with relatives in that time, his move abroad could have been progressed. This is an injustice.
56. Mrs D emailed the Council on 21 March 2024 asking for Mr J to move to a care home closer to her. I have seen no evidence that the Council took any action in response to that request. This is fault. In response to my draft decision, the Council noted that at the review in April 2024 there was no request for a move to a new care home. I accept that Mrs D had a further opportunity in April to request a move so was not caused any significant injustice by the lack of response to her earlier email.
57. Mrs D complains that the Council is wrongly allowing Mr J to pursue a move abroad, although this is not in his best interest and he does not have capacity to make that decision. As a result the family are having to appeal to the court of protection. I have seen no evidence of fault in the way the Council assessed Mr J’s capacity. Any dispute about capacity is for the Court of Protection to resolve.

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Action

58. Within a month of my final decision, the Council should apologise to Mr J to remedy the distress caused as set out in paragraphs 54 and 55 above.
59. The Council should provide us with evidence it has complied with the above actions.

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Decision

60. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman