Summary: Mrs X complained about the actions of Leicestershire County Council (the Council), Leicestershire Partnership NHS Trust (the Trust) and HC-One Ltd (the Provider). She complained about faults in the way her late brother Mr Z was discharged from hospital, in his residential care and in the handling of concerns, safeguarding and complaints. We upheld elements of all three complaints. We recommended the organisations apologise and provide remedies to Mrs X. We also recommended service improvements. The organisations accepted our recommendations, so we have completed our investigation.

The complaint

1. Mrs X complained about Leicestershire County Council (the Council), Leicestershire Partnership NHS Trust (the Trust) and Cedar Court Residential and Nursing Home (the Home), a care home run by HC-One Ltd (the Provider). Mrs X complained about the way the organisations dealt with her late brother Mr Z’s discharge from hospital, poor care of Mr Z in the Home, and flawed safeguarding and complaint handling. Mrs X complained to us about the following issues.
1. Mrs X complained about the way the Council and Trust decided to discharge her brother, Mr Z from the Trust’s Evington Centre community hospital to the Home in April 2022. Mrs X says the Council and Trust incorrectly relied on flawed mental capacity assessments and failed to take sufficient account of Mr Z’s learning disability when deciding on the placement. Mrs X also says the Home incorrectly confirmed it could meet Mr Z’s needs relating to his learning disability. She says the Council and Trust should not have followed the “discharge to assess” (D2A) process. She considers Mr Z should have been discharged to a home specifically for residents with learning disabilities, such as his previous home, Home 1. She says that as a result, Mr Z had to go to an inappropriate placement that could not meet his needs.
2. Mrs X said the quality of care the Home provided between April and November 2022 did not meet the standard her brother should have reasonably expected. Examples include poor catheter care, lack of appropriate stimulation and social activity, failing to support and encourage personal care, poor hearing aid management, failure to implement therapy or manage behavioural problems, poor communication, poor record keeping, failure to advocate for Mr Z with health professionals, and neglectful treatment of Mr Z when he needed to return home after becoming distressed at a day centre. Mrs X says this had an adverse impact on Mr Z’s wellbeing and rehabilitation, and caused her and her other brother (Mr A) avoidable distress.
3. Mrs X said the Council and the Home failed to act promptly and effectively on the family’s and day centre’s concerns about Mr Z’s welfare and safeguarding reports. She said Mr Z remained in an inappropriate placement and at risk of abuse or neglect for longer than he should have. Mrs X also said the Council’s and Provider’s investigations into what happened and her complaints were flawed. She said the investigation responses do not show that the organisations have learned from what happened or held anyone to account for it. This caused her and her Mr A avoidable distress.

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The Ombudsmen’s role and powers

2. The Ombudsmen have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
3. We may investigate complaints made on behalf of someone else if they have given their consent. We may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if we consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, sections 26A(1) and 26A(2), as amended)
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).) In this case, Mr Z is unlikely to have been aware of the problems or to be able to complain about them when they happened, and he has since died. Mrs X complained to the Ombudsmen more than 12 months after she became aware of the problems. However, we considered there were good reasons for her delay in complaining to us. We also considered there were good reasons for us to investigate, including a realistic prospect of us accessing relevant documentary evidence and guidance, and making a sound, fair and meaningful decision.
5. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended). If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
6. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. 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, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
7. When investigating complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
8. If we are satisfied with the actions or proposed actions of the organisations that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(1), as amended)
9. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

10. I considered evidence provided by Mrs X, the Council, the Trust, and HC-One Ltd as well as relevant law, policy and guidance.
11. Mrs X and the organisations had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Summary of background and organisational responsibilities

12. Mr Z had a learning disability and health issues. He was in his late 60s when the events Mrs X complains about happened. For several years before the period I have investigated, he lived in Home 1, a residential care home specialising in supporting adults with learning disabilities. While at Home 1, he enjoyed an active social life including attending a day centre and college. In early 2022, Mr Z went into an acute hospital after breaking his ankle. After treatment in the acute hospital, he spent a few weeks in the Trust’s community hospital, the Evington Centre. He was discharged from the Evington Centre to the Home in April 2022. He lived there until November 2022, when he went into hospital again.
13. Mr Z’s siblings Mrs X and Mr A were close with him and involved in his care, but lived a significant distance away from him in another part of the country.
14. We have investigated all three organisations for the following reasons.
• The Council was responsible for Mr Z’s social care assessments, care plans and provision.
• When providing Mr Z’s care under Council funding, HC-One was acting on behalf of the Council. HC-One also provided Mr Z’s care under NHS funding for part of the period of this complaint and during that period, it was acting as an NHS provider.
• The Trust, Council and HC-One were jointly responsible for Mr Z’s discharge from hospital.
• The Trust was also responsible for some community health services Mr Z had after he left hospital, such as physiotherapy and district nursing.

Relevant law and guidance

Mental Capacity Act 2005 (the MCA)

15. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
16. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions. There is no medical diagnosis that automatically means someone lacks capacity. Organisations should help people make their own decisions by providing relevant information, communicating appropriately and supporting the person.
17. When someone’s ability to make a more complex decision is in doubt, it should be assessed by the person intending to make the decision on behalf of the person who lacks capacity. The assessor should have the skills and ability to communicate effectively with the person. If necessary, they should get professional help to communicate with the person. They may also need specialist advice, for example if family members disagree about a person's capacity.
18. When assessing somebody’s capacity, the assessor needs to find out the following:
• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?
19. 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.

'Hospital Discharge and Community Support Guidance', 31 March 2022

20. The guidance says local NHS and council areas should adopt local discharge policies that they consider best meet the needs of their populations. However, the Trust and Council did not have a local discharge policy in place when Mr Z left hospital in April 2022. I have therefore considered the national guidance.
21. The national guidance describes discharge to assess (D2A) as an approach where hospital discharge is not delayed when a person is ready to leave hospital even if they have not recovered fully. Instead, people are discharged home or to residential care for support with recovery. Assessments of long-term or ongoing needs are fully completed only when the person has recovered as much as possible and their needs have stabilised.
22. The guidance also contains the following relevant points.
• If a person’s preferred placement is not available when they are clinically ready for discharge, they should be offered an alternative suitable for their short-term recovery needs, while they wait for their choice. The person does not have the right to stay in hospital while waiting for their choice of placement. However, no one should be discharged to somewhere assessed to be unsafe.
• Multi-disciplinary teams involving hospital and community health services and social workers should plan post-discharge care and long-terms needs assessments. These teams should also consider mental capacity issues and post-discharge support needs, and provide information about post-hospital care. Mental capacity assessments should not consider onward destinations that are unsuitable or unavailable.

Deprivation of Liberty Safeguards (DoLS)

23. The Deprivation of Liberty Safeguards (DoLS) 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. 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. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.
24. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. There are two types of authorisation: standard authorisations and urgent authorisations. Standard authorisations are made by councils after carrying out the relevant assessments. Councils should complete the assessments within 21 days.

Care Act 2014

25. The Care Act 2014 gives councils a legal responsibility to provide care and support plans to people whom they have assessed to have eligible care and support needs. A care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what type of care and support may be available in the local area.
26. Section 27 of the Care Act 2014 says:
• councils should keep care and support plans under review; and
• if a person’s circumstances have changed enough to affect an existing care and support plan, councils should reassess their needs and revise the plan accordingly.
27. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs.
28. Care plans completed by care homes are for guidance on practical elements of a person’s daily care schedule. They are different from the care and support plans councils produce under the Care Act 2014.

Safeguarding

29. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

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

30. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards which care must never fall below. The following Regulations are relevant to this complaint.
• Regulation 9 is about person-centred care. It says care and treatment must be appropriate, meet the person's needs and reflect their preferences. CQC guidance says a care provider must design a person's care and treatment so it meets all their needs and put this in a clear plan available to all staff.
• Regulation 10 says service users must be treated with dignity and respect.
• Regulation 11 is about consent. It says care and treatment must only be provided with the person's consent, where the person has the mental capacity to provide consent. If a person lacks the ability to provide consent, the provider must act in accordance with the Mental Capacity Act 2005.
• Regulation 12 is about safe care and treatment. This includes assessing the risks to people's safety and doing everything practicable to remove or reduce risks.
• Regulation 13 is about safeguarding people from abuse and improper treatment. It says care or treatment must not be provided in a way that is degrading for the person or significantly disregards their need for care or treatment. It also says a person must not be deprived of their liberty without lawful authority.
• Regulation 17 is about good governance. It says providers must have systems and processes to securely maintain complete and accurate records.

Human Rights Act 1998

31. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals' rights. The Ombudsmen's remit does not extend to making decisions on whether an organisation has breached the Human Rights Act - this can only be done by the courts. But we can consider whether an organisation has had due regard to an individual's human rights in their treatment of them, as part of our consideration of a complaint. In practical terms, organisations will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and there is a process for decisions to be challenged by way of review or appeal.
32. We consider Articles 3, 5, 6 and 8 were relevant to this complaint because:
• the decisions relating to Mr Z's discharge destination had an impact on his home and private life;
• any significant faults around DoLS could have had an impact on Mr Z's Article 5 right to liberty and/or his Article 6 right to a fair hearing; and
• any significant failings in care provision could have had an impact on Mr Z's Article 3 right to freedom from degrading treatment and/or his Article 8 right to respect for home and private life.

A – hospital discharge

What happened

33. When Mr Z lived in residential care before going into hospital, the organisations caring for him recognised they were depriving him of his liberty by providing his care in a way that meant he was supervised 24 hours a day. In January 2022, while Mr Z was still at Home 1, the Council assessed his care and support needs. It also issued a DoLS authorisation for Mr Z at Home 1. Of relevance to this part of the complaint, the assessment and DoLS documents said:
• Mr Z could express preferences when given a range of choices, but may not have been able to understand more complex choices;
• Mr Z could not make a decision about where he should live to receive necessary care and treatment;
• given his lifelong condition, it was unlikely Mr Z would regain the ability to make the decision to continue to live and receive care at Home 1;
• following concerns raised by Mrs X and Home 1 about some aspects of Mr Z’s care and behaviour, the DoLS authorisation form recommended in January 2022 that the Council should review Mr Z’s placement at Home 1, to ensure it continued to meet his needs.
34. In January 2022, Mr Z broke his ankle. He went into a local acute hospital run by a different NHS Trust (Hospital 1). The injury worsened Mr Z’s mobility. His mobility did not improve while he was in the acute hospital. He needed extra support from staff and equipment with transferring from his bed and moving around. Home 1 said Mr Z could not return there until he recovered enough not to need the extra support.
35. Hospital 1 considered Mr Z no longer needed to be in an acute hospital in January 2022. The Trust moved him to its community hospital near the end of February 2022. He stayed there until his move to the Home in April 2022.
36. In early March, Mr Z had a session with a Trust physiotherapist, observed by staff from Home 1. The Trust’s record of this said Mr Z still needed hoisting and help from two people for transfers. It also said Home 1 did not have the space or training to use a hoist. The physiotherapist considered Mr Z may benefit from a D2A placement and continued physiotherapy, in case he could return to Home 1.
37. A few days later, a nurse and medical student saw Mr Z. They noted they saw him in his “best interests” and he was anxious but could not pinpoint what about. They told Mr Z he was ready to leave hospital, Home 1 could not currently meet his needs, he needed to go into a residential care home and have physiotherapy there. Their note says Mr Z said he understood and consented to them sending a Home First form. A Home First form is a form setting out a person’s needs for support following hospital discharge so potential care providers can decide if they can meet those needs. The Trust sent the form on the same day. It said Mr Z had a long-term learning disability and dementia but understood Home 1 did not meet his needs at the time and consented to a D2A bed. The form also contained the following information:
• Mr Z needed long-term support because he had a learning disability;
• a DoLS authorisation was in place for Mr Z at Home 1;
• Mr Z struggled to express his needs and wishes, and became much louder when anxious;
• Mr Z had poor short-term memory and processing, and could not reason or assess risks; and
• Mr Z was not progressing with his therapy at the time but had potential for reablement.
38. In mid-March, the Council noted Home 1 was holding Mr Z’s place until the end of the D2A period (usually six weeks after hospital discharge).
39. The Trust’s records for 16 to 18 March contain the following notes:
• Mr Z could not consent for the Trust to tell his family about discharge planning;
• the Trust told the Council Mr Z did not “have capacity” and all decisions were taken in his best interests; and
• the ward Mr Z was on discussed his case with the Trust’s learning disability nurse. The learning disability nurse advised the ward staff to ask Home 1 for copies of Mr Z’s communication passport and care plans. A communication passport is a document that gives hospital staff information about a person’s communication needs. The Trust asked Home 1 for this information but there is no evidence it received it or chased Home 1 for it.
40. Towards the end of March, Mr Z had occupational therapy and physiotherapy reviews. Mrs X was present for these. Mrs X wanted Mr Z to stay in the hospital for another two weeks. Her view was that he had recently shown significant improvement but would not get consistent physiotherapy following discharge. The therapists explained the risks of Mr Z staying in hospital, including infections and lack of stimulation.
41. The therapy reviews found Mr Z’s mobility had improved but that he would benefit from further physiotherapy after discharge.
42. Mr Z continued his stay at the community hospital while the Council searched for a D2A bed.
43. The following key events happened between 5 and 6 April.
• The Council told Mrs X the D2A bed would not be permanent and its purpose was only to assess Mr Z’s needs outside the hospital environment. The Council transferred the management of Mr Z’s case from the team that sourced D2A beds to a team which sought longer term placements. The Council told Mrs X.
• Home 1 contacted the Council and discussed its concerns about Mr Z’s behaviour when he lived there. At the time, Home 1 considered it would not be appropriate for Mr Z to return there. It considered the Council should look at a new placement rather than improving Mr Z’s mobility with the aim of returning to Home 1.
• The Council decided Mr Z’s day centre provision was “pivotal” and its “involvement needs to continue”, so a standard D2A discharge was not appropriate for Mr Z. But soon after, the Council transferred the case back to the D2A team because it considered it needed to organise a discharge from hospital as soon as possible.
• The Council staff dealing with the hospital discharge were reminded there was a DoLS in place for Mr Z at Home 1.
• Mrs X asked the Council for a best interest meeting about Mr Z’s discharge destination. The Council decided the Trust would need to arrange this as the Trust had “done the MCA etc and determined that [Mr Z] does not have capacity and are acting in his best interests”. Mr Z’s social worker felt a social work presence at the meeting would be helpful, but a manager decided it was “more of a hospital issue and therefore should be dealt with by them”.
• The Trust told the Council it was completing a mental capacity assessment for Mr Z and would be following the discharge process if he had capacity. In response, the Council told the Trust it could not follow “normal protocol” for this, as Mr Z needed support and family involvement in the decision. The Council also said Mr Z would not be able to weigh up the decision because it was not a choice of going home or to another specific place, as there was no other “legitimate option” at the time. The Council considered a best interest meeting would not be useful as everyone agreed Mr Z needed to leave hospital, and best interest meetings are held if there are disagreements.
• Shortly after the conversation with the Council, the Trust completed a mental capacity assessment. It decided Mr Z could understand the reasoning for discharging him to a different care home rather than back to Home 1. Its evidence of this was that Mr Z told the assessor he: could not manage the stairs at Home 1; had been to a care home (Home 3, a provider of specialist residential care to adults with learning disabilities) in the past; and understood what a care home was.
44. In mid-April, the Home offered Mr Z a place and Mr Z tested positive for COVID-19. This meant he had to stay in hospital until he tested negative for the virus. The Home decided it could meet Mr Z’s needs based on the March 2022 Home First form. However, in a later response to Mrs X’s complaint about Mr Z’s care, the Home said that based on the Home First form information, it was not a suitable service for Mr Z. The Home did not assess Mr Z for itself, or see the Council’s care and support plan for Mr Z, before Mr Z moved in.
45. The Trust completed another capacity assessment on 27 April. This again found Mr Z could understand why Home 1 could no longer meet his needs and that he would need to go to another placement.
46. On the same day it completed the second capacity assessment, the Trust held a meeting with Mr Z’s family and the Council. Mrs X was present. Mr Z’s family worried the discharge to the Home was unsafe for Mr Z, but eventually agreed to this. The Council noted two separate mental capacity assessments had decided Mr Z could understand he needed to move from hospital to residential care, and why he could not return to Home 1. It therefore refused to call the meeting a best interest meeting.
47. Mr Z moved into the Home the following day.

Was there fault causing injustice?

48. The Council and Trust did not have a local policy or protocol for hospital discharge when Mr Z left hospital. This was contrary to national guidance and therefore fault.
49. Although Mr Z was vulnerable due to his health conditions and learning disability, national guidance says he did not have a right to stay in hospital when he no longer needed to be there. This was the case even if that meant he could not return to his old home. The D2A process was one option available to the Council and Trust, even though Mr Z had a learning disability. The Council considered using a different process, but decided that it was important for Mr Z to move out of hospital when he no longer needed to be there. This was both for his own welfare and because other patients needed his bed. These were considerations the Council was entitled to have. The Council and Trust acted in accordance with national guidance when they used the D2A process to find a residential care home for Mr Z to go to for further recovery and long-term care needs assessment. This was not fault.
50. While organisations should not assume a person cannot make their own decisions just because they have a learning disability, they should assess a person’s capacity if there is good reason. In Mr Z’s case, the Council and Trust knew Mr Z had been subject to DoLS in his previous home and could not make his own decision about living there. The DoLS authorisation was recent, would have been in force if Mr Z was not in hospital, and explained clearly why Mr Z was unlikely to regain capacity to make these decisions. So, there was good reason to assess whether he could make his own decisions about discharge destinations.
51. The Trust carried out the mental capacity assessments for Mr Z. The Council was part of the multidisciplinary discharge team, so it had a joint responsibility to ensure the assessments were done properly. The Council and Trust should also have told Mrs X how to challenge their decisions on this. I have found the following faults relating to mental capacity assessments.
• The Trust told the Council Mr Z did not have capacity and all decisions were taken in his best interests, despite other records and actions indicating the Trust considered he had capacity for some decisions. Trust and Council records repeatedly refer to them acting in Mr Z’s “best interests” without a corresponding mental capacity assessment deciding Mr Z could not make these decisions for himself.
• The Trust failed to act on the advice of its learning disability nurse to get a copy of Mr Z’s communication passport from Home 1. There is no evidence the Trust completed its own communication passport for Mr Z. It therefore did not have this important information when carrying out mental capacity assessments in April 2022.
• The mental capacity assessments did not follow the Code or the national discharge guidance. The assessments related to a complex and serious decision (discharge from hospital to a type of residential care Mr Z had never experienced). Despite this, the Trust did not consider a more thorough assessment involving a professional expert. Mr Z did not get any support during the assessments. Instead, the first assessment refers to past discussions with others during Mr Z’s stay in hospital. The assessments did not consider Mr Z’s ability to make specific decisions. Instead, they considered whether Mr Z understood the reasoning for not going back to Home 1 and going to a care home instead. The first assessment assumed Mr Z knew what a care home was because he said he had been to Home 3 in the past. However, Home 3 is a specialist learning disability provider and different from conventional residential care homes such as the one Mr Z eventually moved to. Neither assessment included information about the Home and how different it was from the specialist learning disability providers Mr Z was familiar with. The assessments did not include information about the likely consequences of deciding one way or another. Mr Z therefore did not have the relevant information and support to enable him to understand the type of discharge destination the Council and Trust were planning for him.
• Despite these faults with the assessments, the Council accepted them as valid for deciding Mr Z’s ability to decide on a discharge to the Home.
• Neither the Council nor the Trust told Mrs X how to challenge the mental capacity assessment decisions.
• There is no evidence the Trust and Council took proper account of Mr Z’s rights to a private and family life under Article 8 of the Human Rights Act 1998.
52. The Trust’s mental capacity assessments were so flawed that we consider them unreliable. Considering the detailed information from the January 2022 DoLS records, it is more likely than not that properly made capacity assessments would have concluded Mr Z could not make his own decisions about a discharge destination. This should have prompted the Trust and Council to make a best interest decision on discharge destination with meaningful input from Mr Z and his family. Any dispute the organisations and Mr Z's family could not resolve informally could have been referred to the Court of Protection.
53. The Home told the Council and Trust that it could meet Mr Z’s needs, including those linked to his learning disability, before he was discharged there in April 2022. However, in late 2022 the Provider confirmed in writing that, based on the information in the initial referral, the Home would not have been suitable for Mr Z’s needs. Incorrectly stating it could meet Mr Z’s needs was fault, for which the Provider is responsible. Had the Home properly dealt with the referral at the outset, Mr Z would never have been placed there.
54. Because of faults by the Trust, Council and the Provider, Mr Z spent around seven months in residential care that was unsuitable for him. This was a significant injustice. The faults also caused Mrs X significant distress through not being properly involved in the discharge decision and witnessing Mr Z spend months in unsuitable residential care.
55. We cannot say, even on balance of probability, that Mr Z would have had a better post-discharge experience if there had been no fault in the discharge process. There are too many possibilities of what could have happened. It is unlikely he could have returned to Home 1, which was consistently reluctant to agree to his return. On balance, he should have either been discharged to a different suitable placement or stayed longer in the community hospital if nowhere suitable had an available place for him. Even in appropriate residential care or hospital, there can be problems with care and treatment, or complications due to existing or new health conditions. However, Mrs X is left with a distressing uncertainty about the possibility her brother would have had a better quality of life and improved health outcomes had the organisations acted without fault. This is a significant injustice to her.

B – care in the Home

What happened

56. The Council carried out a safeguarding investigation after Mrs X raised concerns about Mr Z’s care at the Home. Overall, the investigation decided Mr Z was at risk of physical and emotional neglect at the Home, which was not meeting his needs. The following conclusions from the investigation, which the Home did not dispute, are relevant to this part of the complaint.
• The Home told the Council and Trust that it could meet Mr Z’s needs before he arrived there and did not raise concerns about not being able to do so for about four months, until August 2022. However, in September 2022 it stated it could not meet his needs as it was not registered as a care home for people with learning disabilities.
• The Home repeatedly failed to provide daily personal care in accordance with Mr Z’s care plan. This related mostly to giving Mr Z bed baths rather than baths or showers. It also failed to ensure he had enough toiletries despite holding some of Mr Z’s money so it could buy toiletries. For example, he would be shaved with a razor and water when there was no shaving cream. This meant he experienced a lack of dignity.
• The Home failed to ensure Mr Z was consistently wearing working hearing aids and staff sometimes assumed his lack of response was because he was ignoring them. This caused Mr Z significant distress and reduced his already limited understanding.
• The Home did not follow the physiotherapy advice about exercise and rotunda use. It also delayed making a referral to Mr Z’s GP for a more suitable wheelchair.
• There was poor communication between staff at the Home and with Mr Z’s family.
57. Having reviewed records from all three organisations, I have also noted the following points relevant to this part of the complaint.
• The Trust’s physiotherapists saw Mr Z at the Home and gave the Home advice on exercises and rotunda use. But they also considered Mr Z was unlikely to progress with rehabilitation due to his understanding issues.
• All three organisations’ records indicate Mr Z’s behaviour that challenged, including verbal and physical aggression, existed before he moved into the Home. This included when he lived in Home 1 and when he went into hospital.
• Soon after moving to the Home, the district nurses removed Mr Z’s catheter. He could not urinate without the catheter, putting his health at risk. He had a long-term catheter inserted in hospital. He carried on using a catheter for most of the rest of his stay at the Home, with periodic district nurse and hospital visits for continence support.
• The Home completed care plans for Mr Z about a week after he moved there. The Home’s care plans were for the following aspects of Mr Z’s care: oral, bladder and bowel, personal, sleep and rest, wellbeing, eating and drinking. The Home did not update the eating and drinking care plan and only introduced a weight management care plan in mid-October 2022, despite significant weight loss in September. It added a stress and distress care plan in mid-October 2022, although it had logged behaviour issues throughout Mr Z’s stay, with a marked increase in September.
• The Home completed a DoLS authorisation request in early May 2022. This means the Home considered Mr Z could not make his own decision about where to live and that his care there meant he was deprived of his liberty. It is unclear if the Home sent the request to the Council for approval. The Council says it had a procedure to send a letter to confirm receipt of a DoLS authorisation request. It says it did not receive a request from the Home at the time, so did not issue a letter. There is no record of the Home telling Mrs X or other members of Mr Z’s family about the application at the time.
• The Home’s records show it referred Mr Z to a special care dentistry service in June 2022. It sought GP or ambulance interventions in May, August, September, October and November 2022. These were mainly about Mr Z’s catheter issues, behaviour, mental health, infections, back pain, wheelchair needs and weight loss. The records show the Home first asked the GP for a wheelchair services referral in early September 2022 and chased this four times in October.
• The Council reviewed Mr Z’s care and support plan in May, July and September 2022. Rather than carrying out a new assessment and issuing a new plan, it added a paragraph stating he was at the Home and summarising his situation there. It did not update the sections of the plan about his support needs, such as with mobility, washing, bathing, showering, toilet use and community access until October 2022. Mr Z’s care plan stated it was important for him to continue going to a day centre where he could maintain relationships with long-standing friends. Mr Z did not attend the day centre in May or June 2022.
• Some of the Home’s records for Mr Z are incomplete or inconsistent. This includes inconsistencies between daily care and behaviour records. Records are missing for: hygiene for April and May, elimination for May and some of August; fluid for May, some of August and some of October; and food for most of Mr Z’s time at the home. There are 32 days with no hearing aid record.
• In mid-October 2022, Mr Z became extremely distressed at his day centre. The day centre’s records say it contacted the Home to ask it to collect Mr Z early as he was too distressed and wanted to go home. The day centre’s records say it called the Home a further four times as “there was no reaction” and the Home did not have the telephone number for Mr Z’s transport. The day centre eventually organised a taxi to take Mr Z home and noted he remained distressed for the whole period.
• In early November 2022, the Council told the Home it had not received a DoLS application from it in the past. The Home sent this to the Council on the same day. Around the same time, a positive behaviour support specialist visited Mr Z at the Home. It considered more investigation was needed to rule out pain as a cause of Mr Z’s behaviour.
58. In mid-November, Mr Z became very ill and went into hospital as he had an infection. He did not return to the Home. In the weeks following his admission to hospital, Mr Z was diagnosed with other serious infections and acute kidney failure. Mr Z’s family consider these problems may have existed while he was at the Home.

Was there fault causing injustice?

59. Mr Z received poor care in the Home. The safeguarding enquiry confirmed the care he received was not always person-centred or safe. It also confirmed the Home did not always treat him with dignity and respect, and put him at risk of harm through neglect. This was contrary to Regulations 9, 10, 12 and 13 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. Our review of the records supports the enquiry’s findings.
60. The Home’s care planning was inadequate because it did not update Mr Z’s eating and drinking care plan, or start stress and distress and weight management care plans until October 2022. The Home did not seek specialist support with Mr Z’s behaviour until after Mrs X raised a safeguarding concern. This was despite significant weight loss in September and behaviour concerns before then. This was contrary to Regulation 12. The Home’s record keeping was inadequate, contrary to Regulation 17. The Home’s communication around Mr Z’s care was also poor. The repeated failures to ensure Mr Z wore working hearing aids and delays in seeking specialist behaviour support indicate a lack of proper regard to Mr Z’s human rights to freedom from degrading treatment and to respect for home and private life. These were all faults, and the responsibility of the Provider and the Council.
61. There is no evidence of poor care relating to Mr Z’s catheter or fault in the Home’s advocacy with health professionals on his behalf.
62. Mr Z’s physical and emotional experience of the poor care more likely than not caused him significant avoidable distress and a loss of dignity. Mr Z was at prolonged risk of significant harm because of the poor care. The delay in seeking specialist behaviour support delayed consideration of whether pain was causing some of Mr Z’s challenging behaviours. Mrs X suffered significant avoidable distress through witnessing or knowing about her brother’s poor experiences.
63. Mrs X considers the poor care had an adverse effect on her brother’s rehabilitation after surgery and worsened his health. There are records indicating some therapy professionals considered Mr Z’s mobility rehabilitation may not have progressed even with more exercise. Records also show his behaviours that challenged existed a long time before he went into the Home. Many health professionals were involved in Mr Z’s care while he lived at the Home and would be expected to have taken the lead in identifying and treating worsening health issues. Also, local NHS integrated care board (ICB) considered the health problems diagnosed after Mr Z went into hospital in November 2022 were new, rather than Mr Z having them when he lived at the Home. Therefore, we cannot conclude, even on balance of probability, that the poor care in the Home was the only or main reason for Mr Z’s lack of rehabilitation and worsening health. However, the concern itself is a cause of distress for Mrs X. This is an injustice to her.
64. The Council should have finished reassessing Mr Z’s care needs within the six-week ‘discharge to assess’ period after he moved to the Home. This should have been around mid-June 2022. It did not do so until September 2022. It did not substantially update its care and support plan for Mr Z until October 2022. The delay is without good explanation and so extensive that it amounts to fault by the Council. It was also a missed opportunity for the Council to find out earlier about the problems with Mr Z’s care.
65. From the entire period Mr Z was at the Home, the Council’s care and support plan for him stated it was important for him to continue attending the day centre for stimulation and social activity. However, he did not attend the day centre in May and June 2022 and so lost out on two months of social activities the Council assessed him as needing. After Mr Z became extremely distressed at the day centre in October 2022, the Council agreed with the day centre that it would not be appropriate for Mr Z to continue going there. The Council then organised extra 1:1 support and companionship through an agency instead. This was not fault as the Council properly considered Mr Z’s welfare and provided an alternative. It should also have updated Mr Z’s care and support plan to reflect the change, but failing to do so did not cause Mr Z any further injustice.
66. It is unclear whether the Home sent a DoLS authorisation request to the Council in May 2022 but the Council did not record or act on it, or whether the Home failed to send the form immediately after completing it. The DoLS Code of Practice requires councils to complete DoLS assessments within 28 days. By mid-September 2022, the Council’s assessment of Mr Z’s needs showed its adult social care team was aware of the need for a DoLS assessment. However, neither the Provider nor the Council’s social work team asked the Council’s DoLS team what was happening, until prompted by Mrs X in early November 2022. This indicates a failure to have proper regard to Mr Z’s human rights to liberty and a fair hearing. At this point, the DoLS team confirmed it did not have an application from the Home, and the Home re-sent it. I have seen no evidence the Provider and the Council had processes in place to check receipt of DoLS applications and follow up on their progress. This was fault.
67. As a result, Mr Z was deprived of his liberty at the Home for over six months, without the legal safeguards that should have been in place to check this was lawful, in his best interests, and the least restrictive option for him. It was also a further missed opportunity for the Council to find out earlier about the problems with the Home’s suitability for and care of Mr Z, which might have become apparent during the DoLS assessment.

C – investigating and acting on welfare concerns and complaints

General concerns

68. The Council’s records indicate Mrs X and Mr A raised several concerns about poor care, Mr Z’s welfare and the Home’s communication with the Council between May and November 2022. From September 2022, the day centre started raising concerns with the Council about Mr Z’s behaviour, deteriorating health and its own suitability as a service for him. The Home’s records are not clear on when Mr Z’s family and the day centre raised concerns with it or how it responded. However, the contents of the Council’s records indicate it is more likely than not that family usually approached the Home with concerns first and would contact the Council if these remained unresolved. Based on this, I consider the Home was at fault in failing to act promptly and effectively on the family’s concerns. As a result, Mr Z’s siblings had to go to avoidable effort to raise these concerns with the Council.
69. The Council’s records indicate it investigated and acted promptly on individual concerns that were not classed as safeguarding matters. Examples include concerns about Mr Z being seen eating breakfast in bed or the Home not responding to an email. The Council usually dealt with such concerns on the same or following day. There are no records of the family or day centre following up on the same individual matters after asking the Council to look into them. This indicates the Council acted promptly and effectively on these individual concerns.

Safeguarding

70. By mid-August 2022, Mrs X had made a safeguarding report to the Council. The Council’s record of this referral says Mr Z continued to be at risk of harm, others may be at risk of harm, and that a safeguarding enquiry should start. There are four further Council records referring to starting a safeguarding enquiry between then and early October 2022. However, the Council did not open a safeguarding enquiry until mid-October 2022. There is no good explanation for this delay of around two months and I consider it fault.
71. The Council progressed the safeguarding enquiry without further delay between mid-October and November 2022, when it held a meeting with the Mr Z’s siblings, the Home and other professionals. The meeting concluded that Mr Z continued to be at risk and should go into an alternative care home. Before an appropriate care home place could be found for him, Mr Z went into hospital and did not return to the Home.
72. The purpose of a safeguarding enquiry is to enable a council to decide:
• whether any action should be taken to stop or prevent abuse or neglect; and
• if so, what action should be taken and by whom.
73. The Council had decided this by early November 2022. By mid-November, Mr Z was no longer at the Home and by the end of the month, the Council had ended his place there. This means Mr Z was no longer at risk of abuse or neglect in the Home and the Council could have concluded the enquiry and updated Mrs X on the outcome by the end of November 2022. However, the Council did not conclude its safeguarding enquiry for Mr Z until March 2023. There is no good explanation for this delay of around four months and I consider it fault.
74. I have considered whether the delays in starting the safeguarding enquiry and concluding it after Mr Z left the Home caused Mr Z or Mrs X an injustice. The Council was unable to find a suitable alternative placement that could take Mr Z until mid-November 2022. This means delays in the safeguarding process did not make any practical difference to Mr Z. However, these delays caused further frustration for Mrs X.

Complaint handling

75. Mrs X complained to the Provider about the Home’s suitability for and care of Mr Z while Mr Z was still at the Home. The Provider’s initial complaint response of October 2022 stated it would address what happened when Mr Z was initially referred to the Home, as well as specific aspects of Mr Z’s care. However, it did not cover all these issues. A further complaint response in November 2022 again did not address all the issues the Provider had set out to address. The Provider was at fault in not addressing all the issues it said it would as part of its complaint response. This put Mrs X to avoidable time and trouble in pursuing her complaint with the Provider.
76. In March 2023, the Provider issued a more detailed response to Mrs X. This acknowledged the previous response did not fully address her concerns. It went on to address most of Mrs X’s concerns and explained that it could not find enough information to clarify what went wrong with some of the concerns. Mrs X remains dissatisfied with this response and the apologies she has had from the Provider. We would expect organisations to provide proportionate complaint responses, rather than answering every question or point a complainant puts to them. Organisations often cannot tell complainants whether individuals have been held to account because of their responsibilities under data protection and employment law, or because of the confidentiality requirements of other investigations. This can also mean they cannot provide detailed information about service improvements. I have not found fault with the content of the Provider’s final response because it is proportionate even though it does not address everything Mrs X wanted it to.
77. Mrs X complained to the Council in August 2023 about a lack of updates about the outcome of the Council’s actions resulting from the safeguarding investigation. The Council responded about a month later. It gave an update explaining that, between September 2022 and July 2023, the Council and CQC carried out significant work checking the Home carried out appropriate improvements to its service. We would not expect the Council to provide more detail to Mrs X for confidentiality reasons. The Council sent its response to Mrs X within a reasonable timescale and I have found no fault in its content.
78. Mrs X complained to the Council again in May 2024. This was a more detailed complaint about, broadly speaking, the same issues she later complained to us about. The Council accepted it had delayed reassessing Mr Z’s needs and that some of its records were unclear. It also acknowledged that is should have given the Home a copy of Mr Z’s earlier care needs assessment to help it decide whether it could meet Mr Z’s needs before Mr Z moved there. The Council sent its response to Mrs X within a reasonable timescale. The Council’s letter provided a proportionate response to the issues Mrs X raised, apologised for the things the Council accepted went wrong, and signposted Mrs X to the Ombudsman. Although Mrs X disagrees with the content and detail of the response and our investigation has found further fault and injustice, the Council’s complaint handling met with the requirements of the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009. I have therefore found no fault in the Council’s complaint handling.

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Summary of fault and injustice

79. The Council and Trust had no local policy or protocol for hospital discharge at the time Mr Z left hospital.
80. The Trust’s assessments of Mr Z’s mental capacity were flawed and the Council failed to check or challenge this.
81. The Home incorrectly told the Council and Trust it could meet Mr Z’s needs even though the Provider later confirmed it should have been clear from the initial referral that this was not the case.
82. Mr Z received poor care in the Home, which amounted to physical and emotional neglect. The Home’s care planning and record keeping were also flawed. The Provider and the Council are jointly responsible for this.
83. The Council delayed assessing Mr Z’s care needs and failed to ensure his assessed need to go to a day centre was met for two months.
84. The Council and Provider failed to ensure there was a robust process for ensuring receipt and processing of DoLS authorisation requests.
85. The Council delayed starting a safeguarding enquiry for about two months, then delayed closing it off when Mr Z left the Home.
86. The Provider’s complaint handling was flawed.
87. As a result of the faults, Mr Z spent months in an unsuitable care home that did not meet his needs, failed to treat him with dignity at times, and placed him at risk of physical and emotional neglect. He also missed out on two months of social activities outside the Home. This caused him significant avoidable distress. He also lost out on the legal safeguards he was entitled to, which should have been in place to check that being deprived of his liberty at the Home was in his best interests.
88. Mrs X has suffered the injustice of not being properly involved in the discharge process and witnessing her brother’s distress while he was at the Home. She also considers that her brother would have had a better quality of life and health had he been discharged to a different care home. While we cannot conclude this would have been the case, we consider the associated distress is an injustice to Mrs X. Mrs X has also suffered avoidable time, trouble, frustration and distress through the flaws in elements of the safeguarding and complaints processes.

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Action

89. We cannot recommend meaningful remedies for Mr Z, who died before we received this complaint.
90. To remedy the injustice to Mrs X, the Council, Trust and Provider should within two months of our final decision:
• each send Mrs X a written apology for the impact of the faults identified in this decision on her and Mr Z; and
• each pay Mrs X a symbolic payment of £250 in recognition of the injustice she has suffered because of the faults identified in this decision.
91. The events we have investigated happened around four years ago. Since then, government guidance relating to hospital discharge has changed and the Home has been re-inspected by CQC, which was aware of the key problems related to Mr Z’s care. The Council also undertook contract monitoring visits with the Home until it was satisfied it had implemented improvements. The Council has already taken action to prevent future delays in care assessments. This includes staff information and a new operating model that includes appropriate checks and authorisations. The Council also has a safeguarding adults process with appropriate timescales for starting a safeguarding enquiry. The Trust has introduced staff training relating to learning disabilities and autism that includes content on the MCA and reasonable adjustments. The Trust has also introduced a flag on its electronic records system to remind staff about checking reasonable adjustments. It is not therefore appropriate for us to recommend service improvements relating to these issues.
92. To prevent similar problems within the DoLS process affecting others in the future, the Council and Provider should take the following action within three months of our final decision.
• The Council’s current DoLS process includes an automated email to confirm receipt of a DoLS authorisation request. The Council will add a statement to that response advising the requestor to contact the Council’s DoLS team if the person has not been assessed, or if there has been no update about the request within three months.
• The Provider should check that its current DoLS process has provision for recording the date and time a care home sends a request for DoLS authorisation, checking confirmation of receipt by the relevant council, and checking on progress if an authorisation takes longer than expected. If this is not the case, the Provider should update the process and ensure relevant staff in its homes are aware of the update.
93. The organisations should provide us with evidence they have complied with the above actions.

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Decision

94. I find fault causing injustice by all three organisations. The organisations have agreed actions to remedy injustice. I am satisfied with the proposed actions of the organisations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman