Summary: There was fault in the way the Council arranged a care home placement for Mr T’s wife. The Council has partly remedied the injustice this caused, but the Ombudsman further recommends the Council makes a payment to Mr T for his distress, uncertainty, time and trouble. The Council should also review its internal procedures to ensure it complies with statutory guidance.

The complaint

1. Mr C complains on behalf of Mr T about how the Council have dealt with moving his wife, Mrs T, to a care home after Mr T could no longer care for her at home. Mr T complains the Council did not take his views into account and ignored him when he expressed his wife’s wish to be placed in another home. He is upset with the way in which the Council have acted towards him when he raised concerns about his wife’s placement. He feels the Council has not shown any empathy towards him and his wife at an unsettling time. This is the first time they have lived apart in almost 60 years of marriage.

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The Ombudsman’s role and powers

2. 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)
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. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

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How I considered this complaint

5. I read the papers submitted by Mr C and discussed the complaint with him. I considered the Council’s comments about the complaint and the supporting documents it provided in response to my enquiries.
6. I have written to Mr C and the Council with my draft decision and considered their comments.

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What I found

7. The Care Act 2014 sets out how local authorities should meet the care and support needs of service users. This legislation is accompanied by Care and Support Statutory Guidance (“the statutory guidance”).
8. The care and support planning process will identify how best to meet a person’s needs. As part of that, councils must provide a person with a personal budget, that provides clear information on the cost of meeting the person’s needs.
9. Where a council is meeting needs by arranging a care home, it must ensure a person has a genuine choice of accommodation. The council should give the person clear and balanced information to make the best choice. It must ensure there is at least one accommodation option available that is affordable and within a person’s personal budget. If no accommodation is available within the personal budget the council must arrange care in a more expensive setting and adjust the budget to ensure their needs are met.
10. A person can choose accommodation that is more expensive than the amount set in the personal budget, if a third party is willing to pay the additional cost - a top up fee. But if a person is placed in more expensive accommodation solely because the council has failed to arrange accommodation at the anticipated cost, then a top-up fee will not be payable. The council must ensure the third party enters into a written agreement with the council agreeing to meet these costs.
11. The council’s choice must not be limited to those settings or individual providers which the council already contracts with or operates, or those that are within the council’s geographical boundary. It must be a genuine choice across the appropriate provision.
12. At the time of the assessment of care and support needs, the council must establish whether the person has the capacity to take part in the assessment. If the person lacks capacity, the council must find out if the person has any of the following and involve them in the assessment process:

• enduring power of attorney (EPA);
• lasting power of attorney (LPA) for property and affairs;
• lasting power of attorney (LPA) for health and welfare;
• property and affairs deputyship under the Court of Protection; or,
• any other person dealing with that person’s affairs (for example, someone who has been given appointeeship by the Department for Work and Pensions (DWP) for the purpose of benefits payments).

13. Carers and families will often assist people in making decisions about their care and how they pay for it. Councils should as appropriate invite carers and/or families to participate in discussions, and should also provide them with all the information that would otherwise be given to the person they care for, where that person lacks capacity to take part in the decision-making process.

What did happen

14. Mrs T was diagnosed with Alzheimer’s disease in 2014 and her husband, Mr T began caring for her in their home. Mr T started to receive respite care from the Council in March 2017.
15. Mr T completed a financial assessment form for the Council on Mrs T’s behalf in May 2017. In this form, he stated he is his wife’s DWP appointee and helped manage her benefits.
16. In late February 2018, Mrs T had a fall and was admitted to hospital for a dislocated shoulder. The Council completed a care and support plan review for Mrs T on 10 May 2018, to prepare for her discharge from hospital and put in place carers to help Mr T with looking after Mrs T in their own home. The carers visited Mrs T each morning to help her get ready for the day.
17. On 13 August 2018, the Council received a referral for an urgent reassessment of Mrs T’s care and support plan. Mr T had reported he was struggling to cope with caring for his wife at home and needed the Council to arrange for her to move into a care home. The Council placed Mrs T in Care Home A for respite care on 14 August 2018.
18. The Council met with Mrs T, her husband and a support worker from the assisted living village where the couple lived on 20 August 2018 to carry out a further reassessment of Mrs T’s care and support plan. The Council’s notes state it completed a mental capacity assessment on 23 August 2018, which confirmed she lacked capacity to understand why respite care was needed.
19. On 25 August 2018, Mrs T became unwell while visiting relatives and was admitted to hospital again. The Council arranged for another review of Mrs T’s care and support plan following her discharge from hospital on 31 August 2018. The Council decided to transfer Mrs T directly to Care Home A when she was discharged with a view to her returning home as the Council felt she could still be supported by Mr T.
20. Mr T told the Council he could not have his wife back as he was unwell and was no longer able to care for her in their own home. Mr T expressed a preference for the Council to place Mrs T in Care Home B, which he had chosen for her. The Council told Mr T it could not place Mrs T in Care Home B straight away. Mr T agreed to his wife going to Care Home A until the Council could arrange for her to be moved to Care Home B.
21. Mr T contacted the Council again on 6 September 2018 and asked for his wife to be transferred to his chosen care home (Care Home B). The Council told Mr T it would be in contact to confirm if the move was possible soon.
22. The Council’s care and support plan notes for Mrs T show it gave funding to Care Home A from 6 September 2018 to 24 October 2018 to accommodate Mrs T until a permanent placement was agreed. On 11 September 2018, the Council contacted Mr T to ask him why he preferred Care Home B. The Council also noted that staff at Care Home A said Mrs T was very settled there.
23. The Council telephoned Mr T on 13 September 2018 to arrange and invite him to the Best Interests Assessment for Mrs T. During the call, the Council noted Mr T did not have Lasting Power of Attorney for his wife. Mr T completed and submitted an application to the Office of the Public Guardian for Lasting Power of Attorney (health and welfare) for his wife the following day.
24. Care Home B wrote to the Council on 17 September 2018. It confirmed it could accommodate Mrs T and was prepared to accept her on the Council’s standard assessed daily rate for residential placements.
25. The Council completed a further mental capacity assessment on 25 September 2018 for Mrs T and Mr T was present to give his views as her closest relative, carer and DWP appointee. The assessment confirmed Mrs T did not have mental capacity to make a choice on where to live. The Council also noted that Mrs T was unlikely to be distressed if she was moved to a different care home as Mr T had indicated. The Council employee who completed the assessment noted their view that a transfer to Care Home B would not adversely impact on Mrs T’s well-being, nor would the placement present any conflict as long as the care home was prepared to accept the standard placement rate.
26. On 2 October 2018, Care Home B contacted the Council to ask for an update on Mrs T’s transfer. Care Home B again confirmed it was able to meet Mrs T’s needs. The Council replied and confirmed it planned to move Mrs T the following week and that placement funding would be at the usual standard rate.
27. The Council contacted Mr T by telephone on 15 October 2018 and informed him Mrs T would not be moved to Care Home B. The Council explained to Mr T that his wife was very settled at Care Home A, had not expressed a wish to go to Care Home B and it would be detrimental and confusing to move Mrs T. The Council emailed Mr T to confirm its decision and provided the following reasons for not moving Mrs T:
• Mrs T was very settled at Care Home A;
• Care Home A was much closer to Mr T and therefore easier for him to travel and visit Mrs T;
• the Care Act stated the Council only had to offer one choice of care home to meet its duty; and,
• the Council would reconsider moving Mrs T to Care Home B if and when Mr T decided to move to this care home in the future.
28. On 19 October 2018, Mr C contacted the Council on Mr T’s behalf to challenge its decision not to move Mrs T to Care Home B. Mr C explained how Mr T had previously been told by the Council there was no issue with moving his wife to his chosen care home. Mr C asked the Council for an explanation as to why it had changed its decision as Mr T was shocked and distressed by this.
29. The Council responded to Mr C on 24 October 2018. It explained that as Mr T did not have Lasting Power of Attorney for his wife, it needed to check any move was in Mrs T’s best interests. The Council confirmed there were no well-being concerns that prevented Mrs T from being moved to Care Home B. The Council said it had explained to Mr T that it would need to have approval to fund any move before agreeing to this. The Council explained the placement Mrs T had with Care Home A was provided under a contract agreement between the care home and the Council. The Council told Mr C it did not have a similar contract with Care Home B and would therefore be unable to fund Mrs T’s place at this home.
30. Mr C wrote to the Council again on 1 November 2019 to formally appeal and challenge the Council’s decision not to move Mrs T to Care Home B. Mr C complained about the contradictory information Mr T received from the Council and that he had been treated unsympathetically. Mr C also informed the Council that Mr T was in the process of applying for Lasting Power of Attorney for his wife.
31. The Council responded to Mr C’s concerns on 9 November 2018. It explained that the decision not to move Mrs T to Care Home B had been made purely on a funding basis. The Council explained that Mr T’s application for Lasting Power of Attorney would not change the outcome it reached in Mrs T’s case. The Council suggested there had been some misunderstanding on Mr T’s part about why the Council had decided not to move Mrs T to the care home of his choice. The Council apologised if it had not stressed the importance of the approval of funding to move Mrs T, when it had explained matters to Mr T.
32. Mr C wrote back to the Council on 9 November 2018 to escalate Mr T’s concerns to the next stage of the Council’s complaints process. The Council responded on 4 December 2018. In its response, the Council explained it had no duty to offer Mrs T a placement beyond its budgetary constraints. The Council also provided the following additional reasons why it had decided not to move Mrs T to Care Home B:
• Mrs T does not have nursing needs and Care Home B is a home for people with nursing needs;
• the cost of an individual placement, as opposed to the block contract placement with Care Home A, was higher than the personal budget allocated to Mrs T;
• Mrs T did not have any religious or cultural preference for placement at Care Home B; and,
• the journey time to Care Home B is longer for Mr T than Care Home A.

The Council also noted Mr T had not made a written request to ask the Council to move Mrs T to Care Home B.

33. Mr C continued to have contact with the Council about Mr T’s concerns. He sent the Council a copy of Mr T’s approved Lasting Power of Attorney (for health and welfare) on 19 December 2018.

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Was there fault causing injustice?

34. The Council involved Mr T in the discussions about what should happen when his wife was discharged from hospital. It was right to do this as Mr T met the criteria of the types of people the Council should include when reviewing a person’s care and support plan.
35. The Council’s papers show it accurately recorded Mr T’s views, particularly when completing mental capacity assessments for Mrs T. While there is no dispute the Council completed a best interests’ assessment at the same time as the mental capacity assessment in late September 2018, the Council has informed the Ombudsman it does not hold a record of the best interests’ assessment. This is fault as there is now no audit trail or evidence to support the Council’s decision-making in this respect.
36. The Council’s notes up to mid October 2018 show it had agreed to move Mrs T to Care Home B in line with Mr T’s request and had even started discussing the arrangements about this with staff at Care Home B. There is nothing in these notes to show the Council made it clear to Mr T there was a chance Mrs T would not receive funding approval to go ahead with the move to Care Home B. On this basis, I am satisfied Mr T had a reasonable expectation his wife would be moved to the care home of his choice. The Council’s decision to then refuse Mrs T’s transfer to Care Home B on 15 October 2018 was completely unexpected and upsetting for Mr T.
37. The Council’s explanations to Mr T about why it considered Mrs T should remain at Care Home A altered each time it contacted him or Mr C about this. Mr T had informed the Council on more than one occasion that he had no concerns about the extra travelling he would have to do to visit his wife at Care Home B. The Council should have accepted this and not continued to use it as a reason for not moving Mrs T. The Council’s mental capacity assessment did not support its later view and reasoning that Mrs T would find a move to Care Home B unsettling.
38. The Council’s eventual explanation to Mr T for its decision not to move Mrs T was based on a flawed interpretation and understanding of the Care and Support Statutory Guidance (the statutory guidance).
39. There is no doubt that all councils must balance their duties to the public purse against providing the appropriate care and support to meet an individual’s eligible needs. But paragraph 6 of Annex A of the statutory guidance says “This choice (of accommodation) must not be limited to those settings or individual providers with which the local authority already contracts with or operates, or those that are within that local authority’s geographical boundary. It must be a genuine choice across the appropriate provision.”. The Council was at fault for not taking this aspect of the guidance into account when making its decision in Mrs T’s case.
40. In response to our enquiries, the Council explained it had applied internal guidance using block contracts in deciding to refuse the move. I welcome the Council’s early recognition that it had not interpreted the statutory guidance correctly on this occasion. I commend the steps it took following our enquiries to agree to moving Mrs T to Care Home B in line with Mr T’s wishes. The Council arranged and facilitated Mrs T’s move with her husband’s help on 27 February 2019. I understand from Mr C that Mrs T has settled in very well at Care Home B.
41. This situation could have been avoided and Mr T could have been spared the added distress and worry had the Council acted in line with the statutory guidance. The Council’s action to move Mrs T to Care Home B goes a considerable way towards remedying the injustice caused to Mr T, but I have made further recommendations below to address his distress, time and inconvenience from the Council’s failure to move Mrs T sooner. Mr C told the Council this situation was causing Mr T to become unwell and seek medical assistance for stress-related illness. It is unfortunate Mr T had to escalate his complaints to the Ombudsman to get the outcome he had believed he was getting for his wife since he took the difficult decision that he could no longer care for her in August 2018.

Agreed action

42. Within one month from the date of my final decision the Council has agreed to:
• pay £250 to Mr T for causing avoidable distress and uncertainty by first agreeing then refusing to place his wife in the care home of his choice, and for exacerbating his existing health conditions; and,
• pay £100 to Mr T for his time and trouble in complaining and escalating his complaint to the Ombudsman to achieve the outcome he wanted.
43. Within two months from the date of my final decision, the Council has agreed to review its internal guidance for block contracts in residential care homes to ensure this is in line with the Care and Support Statutory Guidance, and report to the Ombudsman the results of that review.

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Final decision

44. I have completed the investigation and uphold Mr T’s complaint. I have found the Council to be at fault in the way it arranged Mrs T’s care home placement. This has caused Mr T an injustice and the Council has accepted my recommendations to remedy that injustice.

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Parts of the complaint that I did not investigate

45. Mr C brought Mr T’s complaint to the Ombudsman on 20 November 2018 and continued to have contact with the Council about its charges for respite care at Care Home A.
46. I have not investigated issues about this because they are separate to Mr T’s complaints about the Council handling of his choice of care home for his wife. It also does not appear that Mr T has completed the Council’s complaint procedure in relation to respite charges. Mr T can bring these matters back to the Ombudsman, if he remains dissatisfied after receiving the Council’s final response to this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman