Summary: Mrs X complains about the care her mother received at Care Home A, which the Council is accountable for, a lack of support from the Council over her concerns and a failure to deal properly with a Deprivation of Liberty Safeguard (DoLS). The Council accepts it was at fault over the handling of the DoLS and has apologised. There is no other evidence of fault causing injustice which warrants a remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains about the care her mother received at Care Home A, which the Council is accountable for, a lack of support from the Council over her concerns and a failure to deal properly with a DoLS. She says this caused unnecessary distress.

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What I have investigated

2. I have investigated Mrs X’s complaints about Care Home A and the Council. I explain at the end of this statement why I have not investigated complaints about the NHS.

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The Ombudsman’s role and powers

3. 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)
4. 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, sections 30(1B) and 34H(i), as amended)
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)

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How we considered this complaint

7. We have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the comments and documents the Council has provided in response to our enquiries; and
• shared a draft of this statement with Mrs X and the Council, and invited comments for me to consider before making my final decision.

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What I found

8. The DoLS is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. 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 care homes and hospitals to apply for authorisation.

What happened

9. Mrs X’s mother, Mrs Y, lived at home with support from her family who visited daily. She went into hospital following a fall which resulted in a bleed on the brain. Along with her siblings, Mrs X has power of attorney for her mother’s health and welfare, and property and financial affairs.
10. Mrs Y went to stay at Care Home A on 7 May 2020. Before she left hospital, the Council assessed her mental capacity to make decisions about where her care needs should be met. It decided she did not have the capacity to make such decisions. It also decided it would be in her best interests to move temporarily to a care home while longer term decisions were made on meeting her care needs. Mrs Y moved under the COVID-19 Hospital Discharge Service Requirements, the aim of which was for people to leave hospital within three hours when they were ready to do so. This also meant the NHS funded her placement. However, as the placement did not involve Care Home A providing healthcare, the Council was accountable for it (see paragraph 6 above). Mrs Y’s family had wanted her to move to Care Home B, but it was not accepting new residents.
11. While at Care Home A Mrs Y’s family could not visit her because of COVID-19 restrictions. There was some contact over the telephone, including video calls.
12. Care Home A kept records of Mrs Y’s care needs. I summarise the key contents below.
13. On 8 May Care Home A did risk assessments for:
• Nutrition – Mrs Y was at low risk but when it updated the assessment on 20 June she was at moderate risk. Her mental condition had declined to “confused, depressed, uncooperative” and she had recently lost “up to 3.5kg”. Other records say Mrs Y weighed 61.65kg when she arrived, 63.15 kg on 23 May and 62.6kg on 20 June.
• Moving and handling – This said Mrs Y used a walking frame but could forget to use it or may not use it properly. She had a sensor mat in her room to alert staff so they could support her when mobilising.
14. On 11 May Mrs Y’s family told the Council she would want to return home, although they were not sure how this could be achieved. The Council said it would assign a Social Worker to assess Mrs Y’s needs. Care Home A submitted an application for a DoLS.
15. On 13 May Care Home A told the Council it would keep Mrs Y on its residential unit, while noting she might benefit from a move to its dementia unit. As Mrs Y did not have a diagnosis of dementia, Care Home A said it would speak to a GP about having her assessed.
16. On 14 May the Social Worker told Mrs X and her siblings she had enough information to start writing a care and support plan for Mrs Y. She said she understood the family view was that the risk of harm if Mrs Y were to return home was too great, so she would need to continue receiving residential care.
17. On 20 May Care Home A produced a care plan for sleep and rest. This said Mrs Y had two-hourly checks both day and night to ensure she was safe. It said she needed help getting to the toilet at night.
18. The Council discussed the possibility of Mrs Y returning home with care provided by a live-in carer, and what the financial implications would be. Mrs Y had to pay for her own care when the NHS funding ended, as she had capital over £23,250. However, she did not have enough capital to fund a live-in carer for very long.
19. On 3 June the Council called Care Home A, which said members of Mrs Y’s family thought she should move to sheltered accommodation. Care Home A said this was not appropriate, as she needed 24-hour care. It said it had submitted an urgent application for a DoLS because of Mrs Y wandering (she had twice said she was leaving, once saying it was to return to her husband who had died). Care Home A’s records say a Doctor diagnosed Mrs Y with dementia.
20. On 12 June Mrs Y’s family told the Council they wanted her to move to Care Home B, which had a vacancy.
21. Mrs Y moved to Care Home B on 25 June, after testing negative for COVID-19.
22. Mrs X complained to the Council on 15 July.
23. On 24 August the Council told Mrs X it had authorised a DoLS for Mrs Y until 19 August 2021.
24. When the Council replied to Mrs X’s complaints on 26 August it said:
• it was not visiting people during the lockdown unless it was essential to do so. Mrs Y had been in a safe place at Care Home A. No risks were raised and it received regular updates from the Manager;
• Mrs Y’s Social Worker had responded to communications from one of Mrs X’s siblings, whom it had treated as the family contact. The Social Worker recalled no conversations about Mrs Y moving to sheltered accommodation;
• the Social Worker had advised Mrs X to consult the Adult Home Care Providers resource for support in the home;
• the Social Worker did not think she had pushed for Mrs Y to stay in residential care, but apologised if that is what came across;
• the Social Worker had supported the move to Care Home B;
• the Best Interests Assessor had not followed the correct procedure over the DoLS, but there was no evidence the Social Worker had acted improperly over the process.
25. The Council says the Best Interest Assessor:
• should have consulted Mrs X but failed to do so;
• did not clearly explain why Mrs Y met the criteria for a DoLS;
• did not tell Mrs X what her rights were or on what basis the process could be stopped.
26. The Council asked another Best Interest Assessor to review the assessment of Mrs Y’s mental capacity and other assessments, to correct the faults.
27. The Council has apologised to Mrs X for its failings.
28. Mrs X says her mother did not settle at Care Home A, reflected in her attempts to leave, and puts this down to poor care. She says Mrs Y quickly settled at Care Home B.

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

29. The Council accepts it did not deal properly with the initial DoLS, as it did not involve Mrs X in the process. It has apologised and taken appropriate action to rectify its faults and to remedy the injustice caused to Mrs X and Mrs Y by its faults. Care Home A was not at fault for applying for a DoLS. It would have been illegal for Mrs Y to remain in residential care without a DoLS.
30. There is nothing in Care Home A’s records to suggest it was not meeting Mrs Y’s needs. It seems likely Mrs Y found it difficult to settle because she had just come out of hospital and her family could not visit her during the lockdown, rather than because of poor care. The lockdown was lifted shortly after Mrs Y moved to Care Home B. This meant her family could visit again, which will have helped to ease the transition.
31. The only recorded discussion about sheltered accommodation was with Care Home A. It is not surprising the Social Worker did not recall this, but the Council should have checked its records before writing to Mrs X. It is clear from the records that the family wanted to explore different options for meeting Mrs Y’s care needs. That is understandable, given the move to Care Home A was arranged with little notice and Mrs Y had been living at home before she went into hospital. However, there is nothing in the records to suggest the Council prevented the family from exploring these options. Nor did the Council make it difficult for Mrs Y to move to Care Home B. She moved within two weeks of the family requesting the move.

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Final decision

32. I have completed my investigation on the basis the Council was at fault but has remedied the injustice it caused.

Parts of the complaint I did not investigate

33. I have not investigated complaints about the NHS because they fall within the remit of the Parliamentary and Health Service Ombudsman, to whom Mrs X had made a complaint.

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Investigator's decision on behalf of the Ombudsman