Summary: Mr X complains the Council has failed to secure a place for his brother in the preferred care home, resulting in him remaining in hospital with no prospect of finding a suitable placement for him. Although there has been some fault by the Council, this has not caused injustice which warrants a remedy.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council has failed to secure a place for his brother in the preferred care home, resulting in him remaining in hospital with no prospect of finding a suitable placement for him.

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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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

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

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What I found

5. Mr X’s brother, Mr Y, has autism and a learning disability. Those caring for him need to be trained how to manage his sensory and behavioural needs to help prevent behaviours from escalating. Mr Y’s behaviour can be challenging (e.g. shouting, kicking, pulling radiators off walls). His personal living environment needs adapting to meet his needs (e.g. isolating electricity to keep him safe). In September 2018 Mr Y moved to an NHS assessment unit, at first under Section 2 of the Mental Health Act 1983 but under Section 3 from early October.
6. In October discussions started about where Mr Y would live when he left the assessment unit. The Council visited Care Home A, a new home for people with learning disabilities, and Care Home B, an established home for people with learning disabilities and mental health conditions. Mr Y’s family also visited the Care Homes. By 9 October, everyone had agreed Care Home A would best meet Mr Y’s needs.
7. On 25 October, the Council’s Learning Disability Funding Panel considered a proposal to place Mr Y at Care Home A. The Panel deferred its decision for “negotiations on price”. However, Mr Y’s Social Worker questioned whether Care Home A was still available and whether they should be considering the second choice, Care Home B.
8. The Council’s case notes say it agreed “in principle” to fund Mr Y’s future placement at Band 2 (£2,993.72), with the NHS paying half the cost. His care and support plan refers to “Long-term care, Band 1, 2:1 shared waking nights (‑50% original costs)” and “residential long-term brokered rate £1,563.96”. This was the same rate the Council paid before Mr Y went into hospital.
9. By 29 October the Council had told Mr Y’s family it could not place him in Care Home A, as it had decided to commission short-term placements, not long-term placements which Mr Y needs. Mr X wrote to the Council to complain about this. He asked the Council to reserve a place for his brother at Care Home B, until they could resolve the dispute.
10. An Officer told Mr X they would not have proposed Care Home A if they had known it would be asked to provide short-term placements.
11. The Council says:
• “Health had already identified the need for step down placements, as transition from hospital to a community setting, before [Care Home A] was available. This home was developed by the provider without input from Commissioners and the cost of the placements was not within [Council] bandings This meant that we had a purpose-built service that was empty. The fact that this facility was empty gave [the Council] an opportunity to commission a step-down service and avoid having to commission a service from scratch, which avoided a delay in care provision. Long-term care in this accommodation was never a commissioning consideration. So the decision was not made to change from long term to short term as [the Council] had not commissioned the service in the first place.”
12. Mr X said Care Home B was a distant second choice due to issues such as concerns about the cost of adapting the accommodation to meet his brother’s needs. He asked why the Council decided to commission short-term accommodation from Care Home A when it had been set up to provide long-term accommodation. He referred to his brother’s previous unsuitable placements (which is not disputed) and the shortage of suitable long-term placements in Norfolk.
13. On 6 November the Council warned Mr X that if they lost the placement at Care Home B, they may have to look at an out of county placement for his brother. The Council told Care Home B it could look to secure funding for the necessary adaptations from “other sources”.
14. At a meeting on 31 October, the Council noted Mr Y’s discharge was classed as delayed, as six weeks had passed. It said it would discuss the adaptations needed to Care Home B to make it suitable for Mr Y. It noted Care Home B had told his family it would not pay for the adaptations and he would quickly return to hospital if placed there.
15. In November, Care Home B told the Council it could not offer Mr Y a place because of the scale of the adaptations needed and the impact on other people living there. The Council contacted care providers outside the county about placing Mr Y, as it had “no other suitable options available at the moment”. But they either had no vacancy or would not accept Mr Y. his family, who visit him regularly, told the Council they would not accept an out of county placement as this would prevent them from doing so. The Council told his family the decision to commission Care Home A as short-term accommodation would not change. So, if Mr Y moved there it would only be for six months.
16. In December the Council arranged for Care Home A to assess Mr Y. His family raised concerns about moving him to a temporary placement, saying any move to Care Home A should be permanent. Care Home A said it was too soon for Mr Y to move there. However, they discussed a move in January with a three to four-week transition and the possibility of a return to the NHS assessment unit if the placement did not work out. However, on 13 December the Council told Mr Y’s family he could move to Care Home A on 20 December. They objected to this because it would be a temporary placement. As Care Home A had not completed its assessment and the NHS assessment unit had questioned whether there was enough time to arrange discharge, the Council noted Care Home A may not agree to a move on 20 December.
17. At a multi-disciplinary meeting on 17 December it was decided to delay Mr Y’s move to Care Home A until the week of 21 January. The Council agreed to talk to NHS Commissioners about the length of the placement at Care Home A.
18. Since then Mr Y has started a six-week medication trial. He therefore remains in the NHS assessment unit but for treatment rather than on a delayed discharge. However, the plan remains for him to move to Care Home A when he is ready to leave hospital.

The Council’s plans

19. Section 5 of the Care Act 2014 says:

“A local authority must promote the efficient and effective operation of a market in services for meeting care and support needs with a view to ensuring that any person in its area wishing to access services in the market:”

1. “has a variety of providers to choose from who (taken together) provide a variety of services;”
2. “has a variety of high quality services to choose from;”
3. “has sufficient information to make an informed decision about how to meet the needs in question.”
1. The Council’s Commissioning & Market Shaping Framework 2017-20 says it has targeted 0% of adults under the age of 30 (which includes Mr Y) in long stay care homes.
2. The Council’s Market Position Statement 2018-19 says it has 752 people with a learning disability living permanently in residential care. It says the Council is working to reduce the number of people with a learning disability living in residential care. It is also:
• “Working to ensure completion of annual reviews of services for placements out of county. Where it is beneficial to bring people back to Norfolk we will seek to do so. With new placements we will look to keep people in Norfolk wherever possible if they have networks and relationships here”.
3. The Statement says the Council is: “Commissioning accommodation based reablement beds to assist hospital discharge and prevent admission”.
4. The Council says it is working with providers in other parts of the country with a view to getting them to work in its area. It is also working with existing providers in its area around “upskilling” their workforces to help them manage complex behaviours. It is negotiating with providers around new long-term accommodation. It says it has 12 at an early stage of development, which it hopes will provide bespoke care for people with complex needs.

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

24. I cannot find fault with the Council for deciding to commission short-term placements from Care Home A. Nor can I reverse that decision. There is no reason to question the need for more short-term placements. This is reflected in the Council’s Market Position Statement 2018-19. The Council raised the family’s expectations by telling them to look at Care Home A when it must already have been considering commissioning short-term placements there. That was fault by the Council. However, the Council remedied that by agreeing to place Mr Y in Care Home A, although temporarily.
25. There is no dispute over the fact the Council has not been able to offer choice over Mr Y’s future accommodation in its area. Given the family’s involvement with Mr Y’s care, the Council has not pushed for an out of county placement. That is in line with its policy on accommodating people in its area “wherever possible” in such cases. The Council has also agreed to place Mr Y in Care Home A when he is ready to leave hospital, while it finds a longer-term placement.
26. I have considered whether the Council’s failure to offer choice over Mr Y’s future accommodation amounts to fault. However, I cannot say that it does. This reflects the fact that the broad aim must be for working age adults to live in the community, rather than in care homes, wherever possible. That reflects local and national policies. However, for the small number of adults for whom that is not possible, their needs are likely to be both significant and challenging. As with Mr Y, a property may need adapting to meet individual needs.
27. As it stands, and this must be subject to any further change in Mr Y’s circumstances, the Council is proposing Care Home A as his home when he leaves hospital. In principle, that could be for no more than six months. However, that would be dependent on both the success of the placement and finding a suitable long-term placement within that timescale. The possibility of Mr Y spending more than six months there cannot be ruled out. The family have raised concerns about the suitability of a temporary placement. The Council will need to address those concerns within the context of a best interests decision when Mr Y is ready to leave hospital. If an agreement cannot be reached, the Council may need to consider making an application to the Court of Protection to decide where Mr Y should live.
28. Although I have identified some fault by the Council, I cannot say this has caused injustice which warrants a remedy.

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Final decision

29. I have completed my investigation for the reasons explained above.

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Investigator's decision on behalf of the Ombudsman