Summary: Ms D complained how the Council, and the care provider it commissioned, handled matters when her brother’s bathroom required major repairs. She also complained the Council delayed carrying out a review of her brother’s care and support plan. We find fault with how the care provider handled the repair issues. We also find the Council was at fault for its delay in carrying out a review of the care and support plan. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

1. Ms D complained how the Council, and the care provider (Advance Newham Domiciliary Care and Support Living services) it commissioned, handled matters when her brother’s (Mr E) bathroom required major repairs. She says the care provider delayed following the repairs up and it failed to tell her about the matter in a timely manner. She also says the care provider failed to send her monthly update reports about Mr E’s health as agreed. Finally, she says the Council delayed carrying out a review of Mr E’s care and support plan.
2. Ms D says the matter caused distress and upset. She says Mr E was left confused that he had to temporarily move to a hotel.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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 a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
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)
7. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
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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What I have and have not investigated

9. Ms D refers to matters from November 2022, but she did not refer her complaint to us until February 2024. I have investigated matters from February 2023. I have not investigated events because this they are late (as per paragraph four of this statement) and I am satisfied Ms D could have bought earlier concerns to us sooner. Any reference to events before February 2023 will be for background purposes only.

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How I considered this complaint

10. I considered information from Ms D. I made written enquiries of the Council and considered information it sent in response.
11. Ms D 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

Care and support plans and reviews

12. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
13. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Mental capacity

14. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
15. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.

Deprivation of Liberty Safeguards (DoLS)

16. The 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.

What happened

17. This chronology includes an overview of key events in this case and does not detail everything that happened.
18. Mr E has care and support needs. He does not have the mental capacity to make decisions about his own care and support and he is subject to a DoLS. He receives care and support from Advance Newham Domiciliary Care and Support Living services (the care provider), which is 24 hour supported living accommodation. The Council commissions this care.
19. Ms D attended a meeting with Council officers in November 2022 to discuss a complaint she made about the service she and Mr E had received. To resolve the complaint, the Council agreed to ask the care provider to send Ms D monthly reports on Mr E’s health.
20. The care provider contacted its landlord (the landlord) at the beginning of October 2023 and said Mr E’s bathroom floor was in a state of disrepair. The landlord did not respond, and so the care provider sent follow up communication to its customer services team at the end of October. The customer services team asked for a company (the company) to inspect the issues.
21. The care provider sent Ms D copies of Mr E’s health reports for March 2023 to September 2023 in November 2023.
22. The company inspected Mr E’s bathroom at the beginning of December and noted how severe the disrepair issues were. The company referred the matter back to the landlord. The care provider provided Mr E with temporary access to an alternative bathroom.
23. The landlord’s engineers agreed to start work on Mr E’s bathroom on 19 December. However, they did not turn up. The care provider decided to move Mr E to a hotel to ensure he had access to working facilities. It did not consult with the Council or members of Mr E’s family before the move.
24. The care provider contacted Ms D and other members of Mr E’s family on the same day and told them it had moved Mr E to a hotel. It had a meeting with the Council the following day and explained what had happened with Mr E’s case.
25. Ms D sent a formal complaint to the Council at the end of December. She said it and the care provider failed to tell her about Mr E’s bathroom issues before 19 December. She asked for further information on how long the issue had been going on for. She also said the care provider failed to send her Mr E’s health reports every month as agreed. Finally, she said it issued Mr E’s care and support plan in March 2022 and it had failed to review it since then.
26. The Council had a meeting with the care provider in early January 2024 to discuss the disrepair issues and how long it would take to resolve them. The care provider explained it had not received a date from the landlord on when the engineers would complete the work. The Council agreed to support the care provider in following the repairs up.
27. The care provider sent Ms D a copy of Mr E’s monthly report for December 2023 in January. It has sent Ms D regular copies of the reports since January.
28. The care provider emailed the Council on 22 January and said its landlord’s engineers had not completed the work. The Council chased the landlord for an update. The landlord responded and said it was waiting for the contractor to confirm the date for completion.
29. Ms D received responses to her complaint from both the Council and the care provider. The Council said it had failed to review Mr E’s care and support plan. It agreed to allocate a social worker to his case to review the plan. It said the care provider sent Mr E’s reports to his previous social worker, but the social worker failed to send them on to her. The care provider apologised for failing to send Mr E’s monthly reports. It also apologised for the delays in carrying out the repairs to Mr E’s bathroom. It said he was still receiving care and support at the hotel.
30. The Council continued to chase the landlord for updates. The care provider moved Mr E during this time to two further hotels due to room availability issues. It did not consult with Mr E’s family or the Council before it moved him.
31. Mr E returned to the care provider at the beginning of March.
32. Ms D complained to the care provider about its failure to consult her about Mr E’s further moves.
33. The Council had a meeting with the care provider to discuss the issues with Mr E’s case. The Council said as Mr E is subject to a DoLS, a best interests decision meeting should have taken place before his hotel moves. The care provider said its staff would attend a DoLS and MCA awareness session. It said it had a recruited a new senior manager and their role was to ensure there was effective communication with all stakeholders, including the landlord, the Council and families, when disrepair issues arise. It also said it told its frontline staff to promptly escalate similar issues to line management in the future.
34. The care provider issued a further response to Ms D’s complaint. It apologised for failing to deal with the bathroom issues in a timely manner and failing to communicate with her about Mr E’s further hotel moves. It confirmed it had put in place service improvements to prevent a recurrence of the fault.
35. The Council completed a review of Mr E’s care and support plan in mid-March. Its view was the care provider was meeting Mr E’s needs. Ms D contributed to Mr E’s review.
36. The Council sent Ms D a copy of Mr E’s finalised care and support plan in July.

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Analysis

37. The care provider was at fault for its delay in dealing with Mr E’s bathroom disrepair issues. It first reported the issue at the beginning of October 2023, but it failed to take any action to follow matters up until the end of October. It also did not take any steps to progress the matter throughout November.
38. The care provider did not tell Ms D about the bathroom issues in October or November 2023. It also did not consult with her, other members of Mr E’s family or the Council before it moved Mr E to a hotel. This is fault. Mr E does not have the mental capacity to make decisions about his care and support and he is subject to a DOLS. The care provider should have arranged a best interests meeting with the Council and Mr E’s family to discuss suitable temporary arrangements. The care provider also moved Mr E twice in February 2024, but it again failed to consult with his family or the Council before making that decision. I have not received any evidence the care provider considered whether a hotel was appropriate accommodation for Mr E, given that he lives in 24 hours supported accommodation, and what the potential risks were of him moving to unfamiliar surroundings. It is unlikely Mr E received the same type of care in a hotel that he would have received if he was living at the care provider.
39. I am satisfied as soon as the Council was aware of the issues, it took proactive steps to resolve them. It chased the landlord and was in regular contact with the care provider.
40. I welcome the care provider has apologised and implemented service improvements for the faults found in paragraphs 37 and 38 of this statement. However, I am not satisfied this appropriately addresses Mr E’s and Ms D’s injustice. Mr E is vulnerable and requires a lot of care and support. The care provider’s faults mean he was living in accommodation that did match what was in his care and support plan. This would have caused him some confusion and distress as it was a disruption to his normal routine. This may have been prevented if it had acted without delay and if it held a best interests meeting with the Council and Mr E’s family. There is also an injustice to Ms D as she lost an opportunity to contribute to where Mr E should move to and finding out about the issues so late would have caused her some distress.
41. The care provider and the Council have acknowledged Ms D did not consistently receive Mr E’s health reports every month in 2023. This fault has caused her some frustration. The care provider has apologised to Ms D, and it is now consistently sending her the reports. This is a suitable remedy for Ms D’s injustice for this part of her complaint.
42. The Council was at fault for its delays in reviewing Mr E’s care and support plan. It failed to review the plan in 2023. This statutory guidance sates plans should be reviewed every 12 months. I have compared what it is in Mr E’s plan from 2024, to what is it his plan that was issued in 2022. The content of the two plans is similar, and so it is unlikely the Council’s delay has caused Mr E a significant injustice in terms of this care and support needs. However, the Council’s faults mean Ms D lost an opportunity to contribute to a review about Mr E’s care and support needs for two years. This is an injustice which the Council needs to remedy. I also note the Council accepted its fault when it responded to Ms D’s complaint, but it did not issue an apology for her injustice.

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Agreed action

43. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found some fault with the service of the care provider, I have made recommendations to the Council.
44. By 24 October 2024 the Council has agreed to:

• Apologise to Ms D for the injustice caused by its delay in reviewing Mr E’s care and support plan.
• Pay Ms D £200 for her distress and lost opportunities.
• Pay Mr E £400 for his confusion and distress.
• Issue written reminders to relevant staff to ensure they are aware they must review a service user’s care and support plan every 12 months.

45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. There was fault by the Council, which caused Ms D and Mr E an injustice. The Council has agreed to my recommendations and so I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman