Summary: Mr R said the Council was at fault for failures in its care for his stepson Mr C. He also complained about poor communication. The Council was at fault for failures in its care for Mr C and its communication with Mr and Mrs R. These failures caused injustice to Mr C who became unwell after a failure to give him prescribed medication and to Mr and Mrs R who were excluded from discussions about Mr C’s care. The Council has agreed to pay Mr and Mrs R a sum in recognition of their distress and to investigate the standard of care at a care facility where Mr C lived.

The complaint

1. The complainant, Mr C, who is deceased, is represented by his mother and stepfather, Mr and Mrs R. They say the Council is at fault for:
1. Poor care for Mr C and a lack of monitoring at a care facility (Home 1) which led to Mr C suffering injury and putting on a dangerous amount of weight.
2. Moving Mr C from Home 1 to another facility, Home 2 against his best interests.
3. Two safeguarding incidents on the day Mr C moved from Home 1 to another facility and a failure to record them properly in the relevant logs. Mr R says Mr C fell on the way out of Home 1 and then got into a stranger’s car because of a lack of supervision.
4. Allowing or causing the loss of Mr C’s possessions such as watches, clothes a television and a radio around the time of the move from Home 1 to Home 2.
5. Poor communication.
2. Mr and Mrs R say that the Council’s fault caused injustice to Mr C whose health suffered and to themselves who were distressed at the lack of communication they received from the Council.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. 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. 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)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
7. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
8. If we are satisfied with an organisation’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)

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How I considered this complaint

9. I spoke to Mr R. I wrote an enquiry letter to the Council. I considered all the information I had gathered and applied any relevant law and guidance.
10. Mr and Mrs R and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

11. Councils have a duty to provide care for those in their area who need it. The care must be of a satisfactory quality. Councils may outsource the provision of care to other organisations but they retain the statutory responsibility and we will find councils at fault if care is inadequate.
12. 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)

Mental capacity

13. The Mental Capacity Act 2005 (“the Act”) sets out the principles for working with people who lack capacity to make a particular decision. The Government has also issued statutory guidance, the Mental Capacity Act Code of Practice, (“the Code”) to accompany the Act. The five key principles in the Act are:
• every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
• a person must be given all practicable help before anyone treats them as not being able to make their own decisions.
• just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
• anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
• anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.
14. References to capacity are to a person’s capacity to make a particular decision at the particular time it needs to be made.
15. Local authorities should ensure they respect the first principle of assuming capacity. However, it is important to carry out an assessment “when a person’s capacity is in doubt” (the Code para 4.34)
16. A person is unable to make a decision if they cannot:
• understand information about the decision to be made (the Act calls this ‘relevant information’);
• retain that information in their mind;
• use or weigh that information as part of the decision-making process; or
• communicate their decision (by talking, using sign language or any other means).
17. Where it is found that a person lacks capacity to make a particular decision, any act done for or any decision made on behalf of that person must be done or made in their best interests. 

Care Quality Commission fundamental standards of care

18. The Care Quality Commission (CQC) has issued guidance on standards of care called the fundamental standards. We will usually find a failure to comply with these standards to be fault.
19. Among the standards relevant to this complaint are:
• Regulation 9: Ensure that service users receive personalised care that meets their needs,
• Regulation 10: Ensure that service users are treated with respect and dignity at all times,
• Regulation 12: Prevent service users from receiving unsafe care and treatment in order to prevent avoidable harm,
• Regulation 13: Safeguard service users from abuse or improper treatment,
• Regulation 14: Ensure that service users receive adequate nutrition to sustain life and good health,
• Regulation 18: Ensure that providers deploy enough qualified, competent and experienced staff to enable them to meet all other regulatory requirements.

Deprivation of Liberty

20. It is not legal to deprive someone of their liberty without good reason. Sometimes, it is necessary to deprive people of their liberty if their health requires it. Where a person lacks the capacity to make decisions in their own best interest, the Deprivation of Liberty Safeguards (“DOLS”) are designed to ensure that this does not happen except where necessary.
21. In order to authorise a deprivation of liberty, a qualified mental health professional must certify that it is necessary in the circumstances.

What happened

22. Mr C was an adult who lived in care all his adult life. He had complex needs; he had learning difficulties, autism and mental health problems including bipolar disorder. He was able to speak but did not have capacity to make most decisions in his own interests.
23. Mr C lived at Home 1, a residential care facility for adults with learning and other difficulties for many years. Home 1 was run by Affinity Trust, a care organisation. Mr C received also care from the Council as well as from Home 1 staff and staff from another care organisation, Home Group. Home Group provided care and support for individuals in the community to people in mental health crisis and was also responsible for providing care at Home 2 (see below).
24. Mr C also received support from the local NHS Trust. While I have made reference to NHS involvement throughout the decision, I have not investigated any actions of the NHS Trust for potential for the following reasons:
1. Mr and Mrs R have not complained about NHS actions,
2. The NHS provided no funding for Mr C’s care and therefore the Council maintained overall responsibility for his care
25. Mr and Mrs R say Mr C had been happy at Home 1 for many years. They saw it as the “ideal long-term home” for Mr C. It was close to their home allowing Mr C to visit and it had sufficient space for Mr C to have solitude when he needed it. However, during the period covered by this complaint, they raised many concerns about Home 1 and the Council’s administration of Mr C’s care.
26. In 2019, Mrs R became ill. Mr C could not visit his family home and Mrs C could not visit him. Not long afterwards, the COVID-19 pandemic began and this too prevented Mr C from seeing his family. Mr and Mrs R say this affected Mr C’s mental health and wellbeing and also impacted on his care at Home 1. In particular, they said:
1. Mr C’s weight increased dramatically until he weighed nearly 20 stone.
2. The layout of the home was changed so that there was no longer a communal area where Mr C and the other residents could spend time during the day.
3. Incident logs were not completed.
4. The Home did not keep records of Mr C’s possessions and many went missing.
5. Mr C had no team leader allocated for several years.
6. There was a high staff turnover resulting in poor care.
7. Mr C would often be dressed in ill-fitting clothes.
8. Mr C had an ingrowing toenail which went untreated for some time.
27. The care record shows that, in early 2021, carers had concerns about Mr C’s wellbeing at Home 1. He frequently became agitated. He did not like some of his fellow residents. The care record shows that, like Mr and Mrs R, staff felt that Mr C had been badly affected by the COVID-19 lockdowns. They also expressed concern about a reduction in the amount of one-to-one care Mr C received. Staff monitored him to try to find a way forward.
28. In late February/early March 2021, Mr C’s doctor, fearing that Mr C was becoming psychotic, prescribed him 50mg of quetiapine, an anti-psychotic drug, every day.
29. In early March 2021, a visiting carer who was assessing Mr C’s care, Ms W, contacted the Council over her concerns about the standard of care at Home 1. She said personal protective equipment was not worn. At times, one staff member was on duty with five residents present which, she implied, was inadequate.
30. A manager at Home 1 wrote to Mr and Mrs R suggesting that Mr C should take a respite break at Home 2. Despite the issues they had raised, as set out above, Mr and Mrs R were opposed to the idea. They wrote to the local NHS trust saying so.
31. Ms W remained concerned about Mr C’s care. An email from Ms W in late March 2021 shows she considered Mr C needed verbal stimulation so should not be left alone at Home 1 where the other residents were non-verbal. She said staff sat in the kitchen leaving residents alone and she considered there was inadequate management oversight. Ms W was also concerned about Mr C’s weight and the way staff interacted with him.
32. In early April 2021, the records show Mr C’s mood deteriorated further. His doctor increased his dose of quetiapine from 50mg to 75mg daily. A Council officer, Officer O, visited and observed Mr C being verbally and physically threatening. A few days later, Mr C hit a member of staff. On another occasion his behaviour was so challenging that a member of staff reported having to hide in her car until Mr C had calmed himself down.
33. An NHS employee expressed the view, in early April 2021, that Mr C’s behaviour was linked to low mood and psychotic presentation. She suggested that ‘wrap around care’ and a mental health support plan rather than a move would help. Another NHS employee said, in her view, Mr C would benefit from having his own self-contained accommodation to give him more privacy and time on his own.
34. In mid-April 2021, the records show, Ms W discovered on a visit to Home 1, that staff had not given Mr C any quetiapine since it was prescribed. She believed, on balance that the fault lay with Home 1. The doctor said, at a meeting soon afterwards, that the lack of medication had led Mr C into a “crisis situation”. The families of other residents became concerned about the risk posed by Mr C.
35. In late April 2021, the Council arranged for Mr C to be represented by an advocate during discussions about his future. Mr and Mrs R did not approve of the chosen advocate and later asked for her to be removed.
36. In early May 2021, Mr C’s agitation became worse. He threw objects around a room and attempted to assault a fellow resident. The family of a resident took him out for the day as he was alarmed about Mr C’s behaviour.
37. At around the same time, an officer contacted Mr and Mrs R and told them about the increasing concern for Mr C’s welfare.
38. On 4 May 2021, the Council held a meeting about Mr C’s future. It was suggested that Mr C should be moved to Home 2, a unit specialising in care for those at risk of hospitalisation. One attendee said it would be a shame for Mr C to move as, if he did, he might not be able to return.
39. Mr and Mrs R were not present or represented at the meeting. Mr C’s advocate, who was still representing Mr C at the time, was unable to attend. After a vote, a decision was taken to move Mr C to Home 2 for a respite break. Mr and Mrs R were informed. Mr C moved the next day.
40. On the day of the move, Mr and Mrs R were waiting outside, unable to enter due to COVID. They saw Mr C exit and fall over, injuring himself. He then walked away from the home, unattended and got into a stranger’s car. Mr and Mrs R informed the local NHS who informed the Council. The Council checked with the Home which said he had lost his footing. The Council said that a member of staff should have accompanied him to the car but did not do so.
41. Mr C settled in at Home 2. Initially things went well. Mr C’s condition improved throughout May 2021 although an incident occurred when a chair collapsed under his weight in early May.
42. Later, the records show, through late June and early July, Mr C’s mood worsened again. He became more aggressive. When he went out into the community, he required two to one support.
43. In July 2021, the records show that Mr C fell into a very low mood at Home 2. He became aggressive which was seen as being out of character. His obesity was seen as being problematic and professionals feared there might be underlying health conditions. Carers felt he could not return to Home 1 for the meanwhile.
44. At around the same time, it became clear that Home 2 had failed to apply for permission to deprive Mr C of his liberty for his own good as is required by DOLS. This application was made in mid-July 2021. The Council later contacted Mr and Mrs R about this which caused them some confusion.
45. Over the next week, Mr C’s state of mind improved. He enjoyed his days out from Home 2.
46. Mr and Mrs R visited Home 1 in late July 2021 to pick up some of Mr C’s property. They say this was missing. The records show that Mr and Mrs R told staff that, in their view, Mr C had not been moved in his own best interests but in the Home’s.
47. The records show that the Council originally intended for Mr C to return to Home 1. A place had been reserved for him at a newly built part of the Home . Home 1 staff maintained contact with Mr C. The records shows that medical and Council staff were concerned that any return would have to be gradual.
48. In August 2021, an employee of the organisation which runs Home 2 wrote to the Council with her assessment of Mr C’s needs and Home 1’s ability to cater for them. She said she had found a Home 1 employee to have been, “disrespectful of Mr C’s needs. She said he said, “[Mr C] had been a pain in the arse for us for over a year and we are glad he’s not there”.
49. She said, “when the [Home 1] colleague went into [Mr C’s] flat, he spent most of his time on his phone, appeared disengaged, sat in a separate area from [Mr C] and showed little interest in spending quality time with him. I find this unacceptable if the plan is for [Mr C] to return to their care”. She said she did not believe Home 1 wanted him back. NHS staff also expressed their doubts about Home 1’s ability to care for Mr C. Nonetheless, the preparation for his return continued throughout August 2021.
50. Council and NHS staff began to suggest that Mr C should not return to Home 1. In early September, Mr C also said that he did not want to go back there as he didn’t like it. On one occasion in late September, Mr C was aggressive and violent during a visit to Home 1. By the end of September, professionals viewed that Mr C should probably not return to Home 1.
51. It is not possible for residents to stay at Home 2 for more than 12 months so those involved began looking for alternative placements.
52. Mr and Mrs R, unaware of these developments, but believing that Home 1 had wanted Mr C out, complained to Home 1. They noted that they had only heard from Mr C’s social worker twice in four months. They said they had received no contact about the injuries Mr C suffered on the day of the move.
53. At a review meeting in late September 2021, staff of Home 1 said Mr C could not return as it would not be safe. They said they would begin legal proceedings to end his tenancy. Later that day, a manager from Home 1 called Mr and Mrs R and told them that a “professional decision” had been taken that Mr C would not return to Home 1. The records show Mr and Mrs R were very upset.
54. Mr R complained to the Council. He said Mr C’s social worker had only phoned him twice between Mr C’s move to Home 2 in early May and early October 2021.
55. Not long after that, Mr and Mrs R say the Council refused to let them into a meeting with Mr C’s psychiatrist. They alleged that Mr C was not returning to Home 1 because Home 1 management had decided he could not return because he had been disruptive there. They said that Mr C did not have capacity to make decisions in his own best interest and he should, therefore, be returned there against his will if necessary. They expressed their dissatisfaction that such decisions should be made without their input.
56. In October 2021, Mr R complained formally to the company which ran Home 1
57. The Council told Mr and Mrs R of a new home that Mr C might move to, Home 3, in October 2021. The Council negotiated with Home 3 management about this provision but, due to failures in communication, Home 3 withdrew its offer of a place in mid-November 2021. Mr C’s social worker wrote to Mr and Mrs R who said they had received inadequate communication during November 2021.
58. Home 1 responded to Mr and Mrs R’s complaint in December 2021. It said:
1. It accepted that Mr C had fallen over during the move from Home 1 to Home 2. It had been recorded in the accident log and the company recognized that, if staff had helped Mr C, he might not have fallen.
2. Staff from Home 2 had taken Mr C back to Home 1 in September 2021 with a view to his returning there but, during his visit, he became violent. The police had been called. They did not attend. There had been several other visits to Home 1. Mr C was generally unsettled and asked to leave on three occasions. On one occasion, he refused to go.
3. Home 1 accepted that Mr and Mrs R had not had sufficient information and there had been no point of contact for them.
4. Mr C could not return to Home 1 without a best interests decision.
5. Home 1 had reimbursed Mr and Mrs R for Mr C’s missing clothes.
59. In January 2022, Mr C moved to another home, Home 4. In May 2022, he moved again to a new care facility, Home 5. Sadly, Mr C died in the autumn of 2022.

Was there fault causing injustice?

60. Although it did not provide Mr C’s care, the Council had the statutory responsibility for that care. This care was inadequate. It failed on several occasions at least to comply with the CQC’s fundamental standards. The Council was therefore at fault.
61. It is true that 2020 and 2021 was a difficult time for councils to provide care. COVID-19 regulations meant visits from and to relatives were virtually impossible. The Ombudsman accepts that the COVID-19 pandemic made care more difficult and is understanding of the difficulties it caused. However, we say these difficulties do not excuse councils of their statutory responsibilities.

Poor care and a lack of monitoring at Home 1

Weight

62. The Council says Mr C’s weight had been a matter of concern for some years. He had been put on diets before. The Council says a case record from late-March 2021 said Mr C’s weight was “a concern”. However, I have seen no evidence that anything was done about it. It appears Mr C lived off a diet of ready meals and processed foods and his weight increased dramatically. Mr R says he went up several clothes sizes so that his clothes no longer fit. His weight was a health hazard and seems to have contributed to several accidents including one at Home 2 when a chair collapsed under his weight and the incident during the move to Home 2 when he fell. This should not have happened and is fault.

Other care

63. Despite the fact that Mr and Mrs R had misgivings about the way Home 1 was managed and had concerns about some aspects of the way Mr C was cared for at Home 1, at first, they wanted him to stay there. The evidence shows that Mr and Mrs R were right to have misgivings. The care record shows Mr C’s care at Home 1 failed to comply with the CQC fundamental standards in many ways. There were often inadequate staff numbers. Management was conspicuous by its absence. On one occasion, the only carer on duty left the building and hid in her car until Mr C calmed down. This was fault causing injustice to Mr C who received inadequate care and was put at risk.
64. Above all, the failure to provide Mr C with the antipsychotic medication prescribed by his doctor for two months may have had life changing results for Mr C. It seems more likely than not that this failure aggravated Mr C’s disturbance and contributed to the decision to remove him from Home 1 where he had lived for more than 20 years. This was fault which caused Mr C, and those around him, injustice. On the evidence, Mr C’s health suffered which was distressing and dangerous for him and caused a risk of injury to himself and those around him.
65. Mr and Mrs R complain that Home 1 was reconfigured so there was no longer a communal living area. I cannot find fault for this. This was an operational decision.

Moving Mr C from Home 1

Decision to move Mr C

66. Mr and Mrs R say the Council should not have moved Mr C from Home 1 or, failing that, that it should have returned him there after a break.
67. The records show the Council took a decision on 4 May 2021 to move Mr C, on a temporary basis, from Home 1 to Home 2, because of his agitation. This decision would not, in normal circumstances, be one with which the Ombudsman would find fault: it was a matter of professional judgment and we do not have the expert knowledge to question such decisions when properly taken by professionals in possession of all the facts.
68. However, in this case, no one at the meeting where the decision was reached, raised the, in my view, relevant fact that Mr C had not received his quetiapine for two months during which time he became increasingly distracted, anxious and, eventually, psychotic. The decision was, therefore, in my view, flawed as it did not consider relevant information. The Council was therefore at fault.
69. Given the quality of the care he was receiving at Home 1, the move may have been in Mr C’s interests. However, it was clearly very upsetting for Mr and Mrs R who saw Home 1 as Mr C’s home and had raised money for Home 1, providing facilities and outbuildings. The communication about Mr C’s move was poor and this was fault. It caused injustice as Mr and Mrs R were upset.

Failure to return Mr C to Home 1

70. The evidence shows that the Council intended to return Mr C to Home 1 after a respite break at Home 2. However, when they took him back for trial days at Home 1, the evidence suggested that Mr C was unhappy there. He became aggressive on one occasion and on another refused to go. By the end of September 2021, it was clear to all those involved, except Mr and Mrs R, who had not been informed, that Mr C should not return to Home 1.
71. This was a professional decision made by professionals in possession of the facts. For this reason, I do not find the Council at fault other than for the way it communicated about developments with Mr and Mrs R.

Safeguarding incidents during move to Home 2 and poor record keeping

72. The Council has accepted that there was a failure of care during the move from Home 1 to Home 2. Mr C walked out of Home 1 and fell over because he was struggling with a suitcase. The records show that Mr C had asked to take his own case and the care provider had thought this would be helpful as, if Mr C took his own case, it would show he accepted the move.
73. This was a reasoned decision with which I cannot find fault. However, the records also show that a carer was meant to accompany Mr C to the car. She did not do so. This was fault. Even if she had done so, it is unlikely that she would have been able to prevent Mr C from falling. However, she would certainly have prevented him from getting into a stranger’s car. This was injustice.
74. The Council says these incidents were not recorded as safeguarding incidents as they should have been. This was fault. Records should have been completed.

Poor communication: General

75. Communication with Mr and Mrs R was difficult during lockdown. Mrs R was ill and Mr C could not enter their home as he used to do. This was distressing for Mr and Mrs R and Mr C. It was also clear that Mr and Mrs R had little faith in the Council and were dissatisfied with the care Mr C was receiving.
76. Mr R says, and I accept, that he sent 85 emails to Mr C’s Council social worker, the NHS staff involved in his care and others during 2021. He was not kept informed of developments. There was a failure for several months in 2021 to involve and inform Mr and Mrs C. This was fault which caused injustice to Mr and Mrs R who were distressed by the lack of information. .

Loss of possessions

77. The Council says that, so far as it is aware, all Mr C’s possessions either went with him to Home 2 or were taken by a support organisation later. Mr R has told me that the home paid a small amount in recognition of lost items. This was fault but the injustice has been remedied.

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Agreed action

78. The Council has agreed that, within four weeks of the date of this decision, it will write to Mr and Mrs R and apologise for the fault found. It will also pay them £800 in recognition of the injustice they suffered as a result of this fault and the outrage caused by the events described.
79. The Council has also agreed that, within two months of the date of this decision, it will write to the Ombudsman with proposals for ensuring that communication with families in similar situations is better in future.
80. The Council has also agreed that, within two months of the date of this decision, it will carry out an audit of the care provided at Home 1 and ensure that systems and care are improved. It should report back to the Ombudsman with its findings and plans for improvements.

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Final decision

81. I have found the Council at fault. The Council has accepted my recommendations to remedy the injustice caused. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman