Summary: Mr and Mrs B complain the Council refused to allow their relative to begin re-attending a day care centre she had previously attended, after she returned to her own home from residential care. The Ombudsman finds there was no fault by the Council in this matter.

The complaint

1. The complainants, whom I shall call Mr and Mrs B, complain on behalf of a relative Ms D that the Council refused to allow her to begin re-attending a day care centre she had previously attended after she returned to her own home from residential care.

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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. We normally name care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care provider. (Local Government Act 1974, section 34H(8), as amended)

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How I considered this complaint

5. I considered all the information provided by M and Mrs B about this complaint. I made written enquiries of the Council and took account of the information it provided in reply. I provided Mr and Mrs B and the Council with a draft of this decision and considered all comments received in response.

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What I found

Background – Ms B attends Dunningsbridge day centre

6. Ms D is an adult living with Down’s Syndrome and dementia. At the time of the events complained of, and for many years before that, she lived with her sister and brother-in-law, Mr and Mrs B, who provided her care. Ms D’s assessed eligible care needs included two days per week (Tuesday and Thursday) at day care and until August 2018 this was provided at Dunningsbridge day centre. The care provider responsible for this provision, and for Waterloo day centre which Ms D subsequently transferred to, is New Directions. This is a Council owned company from which it commissions day care services.
7. In June 2018 the Council received a referral from New Directions raising concerns that the provision might no longer be suitable to meet Ms D’s needs and that the family would like a day centre which could accommodate her on a Friday. The Council’s records note that the provider said it could not meet Ms D’s needs at Dunningsbridge as she could not tolerate the noise levels in the setting and needed one-to-one support. The Council rang Ms D’s learning disability nurse to ask her to carry out a review at the day centre and to identify any strategies or support that could be put in place for Ms D and the staff. The Council says that following a meeting with Ms D’s key worker and the centre’s manager Officer X the learning disability nurse felt Ms D’s needs would be better met at Waterloo day centre.

Ms D moves to Waterloo day centre

8. Ms D started attending Waterloo day centre at the end of August 2018.
9. In September and October 2018, the Council’s records show Mrs B reported struggling with Ms D’s deteriorating behaviour, and this was confirmed by the learning disability nurse. An extra day at day care was agreed and began in mid-November. The learning disability nurse considered that due to Ms D’s high care needs, behaviour and rate of deterioration she would require 24-hour care. Arrangements were made to begin assessment for alternative accommodation and to complete a mental capacity assessment in respect of Ms D’s care and accommodation.
10. These matters were duly progressed. Ms D was assessed as lacking capacity to decide about her care and accommodation needs and so a best interests decision meeting was needed. Mr and Mrs B felt that they did not want to look at moving Ms D to a residential setting until the new year and so the meeting was arranged for January 2019. When that meeting took place, the best interest decision made was that Ms D required a 24-hour care placement with specialism in both learning disabilities and dementia. A nursing home placement which could appropriately meet her assessed needs was identified.

Ms D trials a residential placement

11. The placement was initially arranged to begin in February but the family wished to defer this and so it actually began on 22 April 2019. Consequently, Ms D’s last day at Waterloo day centre was 18 April 2019. The residential care placement was to be for an initial period of six weeks, after which a further best interest meeting would be held to consider if it should be extended on a long or short term basis.

Ms D again requires day care

12. Mrs B considered she could manage to have her sister at home again provided she had respite and day centre provision. However, when the social worker telephoned Waterloo she was advised by Officer X that due to the escalation in Ms D’s behaviour before she went into placement she did not feel Waterloo was the correct service for her and suggested Dunningsbridge day centre would be better.
13. The Council’s records show that the social worker made enquiries and found that Dunningsbridge day centre was not accepting new referrals at this time. However other day care providers were contacted, and the social worker provided Mrs B with details of possible providers who might be able to meet Ms D’s needs. Mrs B explored these options but did not feel they were suitable for her sister: she wanted her to able to return to Waterloo day centre which was familiar to her.
14. A further best interest meeting took place at which it was noted that Mrs and Mrs B wished to have Ms D return to live with them. This was agreed, with a support package of day care and respite, but it was noted that the learning disability nurse disagreed: she did not consider discharge home was appropriate as the repeated changes of setting were not providing the continuity and stability Ms D needed.
15. In any event Ms D was discharged from the residential setting on 31 May and the plan was for day care to resume a few weeks later after the planned family holiday. One-to-one funding was agreed, subject to review, and a trial planned at one of the alternative providers the Council had identified.

What happened next

16. On 3 June Mrs B contacted the Council to say her sister’s behaviour had deteriorated since coming out of the care home, and she felt she wanted her to return to long term care after the holiday. Ms D was readmitted to the care home on 10 June. But by 20 June Mrs B again wanted to bring her home.
17. On 8 July a further best interests decision was made that Ms D could return home to live with her family, but day care was not in her best interests due to the potential for deteriorating behaviour resulting from a change in setting. Ms D returned home that day but matters once again became very difficult for Mr and Mrs B to manage as Ms D’s behaviour deteriorated further. Mrs B asked the Council if a permanent residential placement could be considered if matters got worse when she went into residential respite care, which was planned for September. In fact, after the respite ended on 6 October the respite care said it would not accept Ms D back due to her behaviour which included spitting, hitting and grabbing staff by the throat.
18. Ms D is now in a permanent residential care placement.

The complaint to the Council

19. In May 2019 Mr and Mrs B complained to the Council that Officer X had made the decision to refuse to accept Ms D back into day care at alone and should not have done so without a meeting with them and social services and also without Ms D having a further care needs assessment. They felt Ms D had been treated unfairly and was being discriminated against.
20. The Council made enquiries of Officer X as part of its consideration of the complaint before replying to Mr and Mrs B. It found that the response from the provider was at odds with what Mrs B reported, in the absence of an independent statement it could not make a definitive finding on the complaint. The Council felt there had a breakdown in communications between services in respect of meeting Ms D’s needs which contributed to the issues raised, and it apologised.
21. Responding to my enquiries, Officer X has said Ms D’s behaviour became more challenging and needed additional support from staff, but she denies having said that Ms D could not return to Waterloo day centre nor did she request that she left. She says that she told the social worker when she telephoned that due to the behaviours Ms D was displaying, she would need a reassessment of her needs for both her own safety and that of other people. She had not raised the behaviour issue earlier as notice had been given of Ms D’s last day at the centre, and she took the view that in the short term the current staffing levels could cope with that behaviour.

My findings

22. The available evidence supports the Council’s position of not being able to reach a definitive finding on the complaint about what Mr and Mrs B were told by Officer X, concerning the availability of a place for Ms D at Waterloo day centre when plans were being made for her to return to living at home with the family. Even if I were to investigate this matter further, the most I would be able to conclude would be that communications between Officer X and the family were not clear enough. The Council has already accepted a fault in communications and has apologised for it.
23. Notwithstanding the above, it is the case that a place at a day centre or other provision will always be subject to review and change. This may be for a number of reasons, from changes in the service itself to changes in the needs of the service users. The evidence in this case shows that Ms D’s behaviour was deteriorating quite quickly, most likely as a result of her progressing dementia, and her needs therefore were changing. She latterly presented very challenging and sometimes violent behaviour. It is very clear that Mrs and Mrs B always sought to do their best for Ms D in this very difficult set of circumstances. But when Ms D stopped using Waterloo day centre in order to go into residential care, albeit at that point this was possibly for a trial period, no guarantee could be given that a place would be available for her at the same provider should she require a day care service in future, even if her behaviour and needs remained unchanged.
24. In any event, the chain of events which followed Ms D’s discharge from the care home on the first occasion means that no day care provision was lost to her, at Waterloo day centre or elsewhere. This is because day care was initially not due to recommence until after the family holiday, and Ms D returned to a residential placement before then, and on her discharge from that placement the best interest decision made was that day care was no longer appropriate for her.

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Final decision

25. I have completed my investigation on the basis set out above. The Council’s actions were not affected by fault.

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Investigator's decision on behalf of the Ombudsman