Summary: Mrs X complained on behalf of a family member, Mr Y. Mrs X complained the Council wanted to move Mr Y without a proper assessment of his needs or a risk assessment. She also complained communication from the Council was poor. Mrs X said this caused her and Mr Y distress and uncertainty. There was fault in the way the Council did not assess, or risk assess, Mr Y’s case before attempting to move him to a cheaper placement. This fault frustrated and distressed Mrs X. The Council should apologise, make a financial payment and issue guidance to its staff.

The complaint

1. Mrs X complained on behalf of a family member, Mr Y. Mrs X complained the Council wanted to move Mr Y without a proper assessment of his needs or a risk assessment. She also complained communication from the Council was poor. Mrs X said this caused her and Mr Y distress and uncertainty.

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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. If we are satisfied with a Council’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)
4. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
5. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.

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How I considered this complaint

6. I read Mrs X’s complaint and spoke to her about it on the phone.
7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X 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

Background information

9. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
10. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
11. A council has a duty to arrange care and support for those with eligible needs, and a power to meet both eligible and non-eligible needs in places other than care homes. A council can choose to charge for non-residential care following a person’s needs assessment. Where it decides to charge, the council must follow the Care and Support (Charging and Assessment of Resources) Regulations 2014 and have regard to the Care Act statutory guidance. (Care Act 2014, section 14 and 17)
12. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
13. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
14. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it arranges a care home place for them. 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. This also extends to shared lives, supported living and extra care housing settings.
15. The council must ensure:

• the person has a genuine choice of accommodation;
• at least one accommodation option is available and affordable within the person’s personal budget; and,
• there is more than one of those options.

16. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or, in certain circumstances, the resident is willing and able to pay the additional cost. This is called a ‘top-up’. But a top-up payment must always be optional and never the result of commissioning failures leading to a lack of choice.
17. If no suitable accommodation is available at the amount identified in the personal budget, the council must arrange care in a more expensive setting and adjust the budget to ensure it meets the person’s needs. In such circumstances, the council must not ask anyone to pay a ‘top-up’ fee. A top-up fee is the difference between the personal budget and the cost of a home.
18. NHS-Funded Nursing Care (FNC) is the funding provided by the NHS to care homes providing nursing, to support the cost of nursing care delivered by registered nurses. If a person does not qualify for NHS Continuing Healthcare (CHC), the need for care from a registered nurse must be determined. If the person has such a need and it is determined their overall needs would be most appropriately met in a care home providing nursing care, then this would lead to eligibility for NHS-Funded Nursing Care.
19. 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.
20. 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.
21. 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.
22. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
23. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

24. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.

What happened

25. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
26. Mrs X holds LPA for Mr Y. Mr Y was admitted to hospital in December 2023. The NHS referred Mr Y to the Council in January 2024. The NHS completed a mental capacity assessment and confirmed Mr Y had capacity to decide where he lived. Mr Y initially wanted to return home, but decided he would go to live at a care home near his home. Mrs X agreed with this placement. The Council assessed Mr Y needed a residential placement and agreed a placement at the care home.
27. Mr Y moved to the care home in March 2024. The Council noted it would complete a review six weeks later.
28. The Council held the review at the end of May 2024. The Council told Mrs X the placement was permanent. It also confirmed Mr Y needed nursing care.
29. The care home issued notice to Mr Y the following day. It said it was closing the residential unit and could only offer nursing care, at a much higher weekly cost. The care home told residents they had to move by September 2024. Mrs X asked why Mr Y needed to move as he was settled in the care home. The Council stated the nursing cost was above its threshold and asked if Mrs X could pay a top up.
30. Mrs X complained in June 2024. She said Mr Y’s condition had deteriorated and the Council considered a nursing placement was now suitable. She noted the Council completed a referral for CHC. Mrs X said the care home was local for his family and friends, familiar for Mr Y and it met his needs. Mrs X said the funding should be increased to meet the higher cost, rather than moving Mr Y.
31. The Council completed a mental capacity assessment at the end of June 2024. The assessment determined Mr Y did not have capacity to decide where he would live. The assessment noted Mr Y said he did not want to move.
32. The Council issued its complaint response in July 2024. The Council said it placed Mr Y at the care home before it decided it would close its residential unit and increase its cost for nursing care. The response said the Council would complete an assessment and risk assessment for Mr Y and consider moving him to another care home. The Council said it could only pay a set amount for a care home. The Council said if someone chooses a more expensive placement, someone must cover the difference by paying a top up. The Council said it would identify all risks and move Mr Y to a new placement.
33. The NHS rejected the initial CHC referral. The Council challenged this, and the NHS agreed Mr Y was eligible for FNC in August 2024.
34. The Council told Mrs X it found a new placement approximately one hour from the care home in September 2024. Mrs X said this was not in Mr Y’s best interest. She set out her concern the Council had not considered Mr Y’s mental and physical wellbeing. She stated the move away from family and friends would isolate him and likely impact his mental health.
35. A week later, the care home informed Mrs X it received instructions from the Council to pack Mr Y’s things and prepare for a move approximately 45 minutes away. Mrs X set out her concern the Council had not discussed this with her. She said the Council should complete the risk assessment it said it would, before any move. The care home set out its concerns with the Council not telling Mrs X about the move. Mr Y did not move.
36. The Council contacted several other care homes. In November it sourced another placement 10 minutes from the care home. Mrs X was not happy with the offer as the placement “required improvement” according to the CQC rating. Mrs X asked the Council to contact Mr Y’s doctor to consider the risk of moving him.
37. The Council contacted Mr Y’s doctor. The doctor reported “any move would be detrimental to health and wellbeing because of his advanced age as well as comorbidities”. The Council asked for more information. The doctor then set out Mr Y’s medical conditions, said he was comfortable at the care home and any move would have a significant impact on his mental health and quality of life. The doctor noted the location meant his family and friends could visit him, reducing the risk of loneliness.
38. In December 2024 the Council told Mrs X it was aware of the family concerns but would move Mr Y when he was medically stable. The Council said the new placement was in a neighbouring borough, it was rated good by CQC and could meet Mr Y’s needs. The Council confirmed it decided to move Mr Y because of several factors including the increased care home charges that were not affordable. Mrs X did not consent to the Council moving Mr Y. The Council noted it would arrange a best interest meeting for Mr Y to consider if it would move him.
39. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to reassess Mr Y and apologise for the distress caused.
40. In response to my enquiries the Council stated it tried to source another nursing placement after the care home increased its costs. It confirmed it did not hold the best interest meeting it noted in December 2024. The Council confirmed it had not completed a risk assessment for moving Mr Y and he lived at the care home until he died in early 2025.

My findings

41. The Council assessed Mr Y needed residential care when he first left hospital. It placed him at the care home, in line with his wishes and Mrs X’s, with residential support. When it reviewed the case, his needs had increased so it assessed he needed nursing care. The care home closed its residential offer, choosing to only provide nursing care. This was at a much higher rate. The Council said it would move Mr Y as it could not pay the higher rate.
42. The Council is correct to say it must use public finances effectively. However, cost is not the only consideration. The Council has repeatedly stated the cost of the care home was more than it could pay. The Council must assess the individuals needs and ensure the needs are met. The Council should not make a decision solely on cost.
43. The Council asked Mr Y’s doctor to provide information. The Council disagreed with the medical advice and continued to arrange to move Mr Y saying the new placement could meet his needs and it was local.
44. The regulations in paragraphs 14 and 15 set out a person must have a genuine choice of accommodation. The Council offered to move Mr Y to a placement an hour from his home. It offered another placement 45 minutes away. It then offered a placement near to his home, but this was rated as “required improvement” by CQC. The Council told Mrs X the home was rated good. It is unclear where the Council got this information. CQC information showed the placement rating was “required improvement”.
45. It is not for the Ombudsman to decide if the placements offered were reasonable. The Council should evidence its decision making. It is widely known that moving a vulnerable elderly resident, especially those who have dementia, to another Care Home where everything (staff, surroundings, residents) is unfamiliar, can have a damaging impact on their physical and mental wellbeing. This was the medical view provided in this case. As such, this is a risk that a Council should properly assess and record, when proposing such a move. I have seen no evidence of decision making detailing why the placements offered an hour or 45 minutes away were reasonable. I have seen communication explaining the placement 10 minutes away was local so family and friends could visit. However, this contained inaccurate information, including the CQC rating. The Council did not explain why it did not agree with the medical evidence either. The Council only referenced the cost.
46. The Council should have completed an assessment and a risk assessment evidencing it considered all information and views, and come to a decision. It has not completed an assessment since May 2024. The Council response to my enquiries confirmed it did not complete a risk assessment. The Council has not evidenced its decision making and not completed these assessments to evidence it gave a genuine choice of accommodation. This is fault.
47. Mrs X shared she did not inform Mr Y about the potential move before his death. I am satisfied the Council fault would not have caused Mr Y an injustice. However, the Council fault did cause Mrs X distress and frustration.
48. The Statutory Guidance states, “In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles”. The Council appears to have focused on costs, not Mr Y’s wellbeing. The Council said it considered all the information in the case. However, the Council stated in communications the amount was above its “threshold”. I have also seen communication saying Mr Y “must move owing to cost”. Blanket policies of this kind are unlawful. It amounts to a fettering of the Council’s duty to meet an assessed need. This is fault.

Communication

49. The evidence shows Mrs X chasing the Council for information and some gaps in communication. This does not in itself evidence poor communication as it may not always be reasonable to respond to every email an individual sends.
50. However, I have seen evidence the Council told the care home to arrange for Mr Y to move, without any communication with Mrs X, his LPA. This goes against the statutory guidance where it says, “planning should always be done with the person, and not for them”. Mrs X raised concerns about this poor communication, as did the care home. The Council noted “basic communication issues”. This lack of communication is fault, frustrating Mrs X.

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Agreed action

51. To remedy the outstanding injustice caused to Mrs X by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mrs X for the distress and frustration caused by the Council fault. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mrs X £300 to recognise the distress and frustration caused by the Council not fully assessing and risk assessing Mr Y’s case to evidence its decision making.
• Remind relevant staff the Council cannot apply blanket cost policy when considering placements and must have genuine alternatives to offer.
• Reminded staff of the need to involve service users, and their representatives, when it proposes to make significant adjustments to their care support.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation. I have found fault by the Council, which caused injustice to Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman