Summary: Mr X’s representative complained the Council delayed finding him an alternative placement after his supported living placement broke down. The Council was not at fault. It arranged an interim placement to meet Mr X’s care needs. It was at fault when it failed to clearly explain the time limits at the placement. However, this did not cause a significant injustice as Mr X’s representative was aware it was a short-term placement. There were some shortfalls in the care provided at the placement. The care home has already taken action to address these. There were also invoicing errors by the Council and delays in referring a safeguarding concern. The Council has already apologised for these errors. That is an appropriate remedy

The complaint

1. Mr X’s representative complained the Council:
• delayed identifying a suitable alternative placement after Mr X’s supported living placement broke down which meant Mr X had no choice but to move to an unsuitable interim placement at Care Home A.
• produced a care plan which did not comply with the Care Act, with a suitable care plan not being agreed until seven months after Mr X left his supported living placement;
• delayed providing documents and information necessary for Mr X’s Deputy, Mr Y, to progress direct payment arrangements for his long-term care and support.
• failed to safeguard Mr X from neglect at Care Home A.
• incorrectly charged Mr X for transport costs between Care Home A and the day service.
2. Mr X’s representative says these matters have caused Mr X and his family considerable distress and affected his physical and mental health.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)

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How I considered this complaint

6. I have considered the information provided by Mr X’s representatives and the Council’s response to our enquiries. I have considered the relevant law and guidance.
7. There was a significant amount of correspondence between Mr Y, his solicitor and the Council. The ‘What I found’ section does not reference everything that happened but provides an overview of key events.
8. I gave Mr X’s representatives and the Council the opportunity to comment on a draft of this decision. I considered the comments I received in reaching a final decision.

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What I found

The relevant law and guidance

9. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
10. The care and support plan should consider what 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 local authority must involve any carer the adult has. The support plan may 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.
11. There are three main ways in which a personal budget can be administered:
• As a managed account held by the local authority with support provided in line with the person’s wishes;
• As a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes;
• As a direct payment. (Care and Support Statutory Guidance 2014)
12. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The local authority has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the local authority should support them to use and manage the payment properly.
13. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)
14. Where a person lacks capacity to make decisions themselves, the court can appoint a deputy to make decisions on their behalf. Mr X’s brother, Mr Y, is his Court appointed Deputy for property and financial affairs and for decisions about his personal welfare.

Interim placement

What happened

15. Mr X lived in supported living accommodation. He received care and support from company B. In late November 2018 company B gave three months’ notice to Mr Y terminating the placement. Mr Y is Mr X’s Court appointed Deputy for financial and welfare matters. The Council asked Mr Y to consider whether he wanted to receive direct payments so he could arrange Mr X’s support himself. Alternatively, the Council would commission a service to meet his needs in a care home or supported living setting.
16. Mr Y’s solicitor confirmed Mr Y wanted to receive direct payments but it was likely an interim arrangement would be required as procuring new accommodation was likely to extend beyond the notice period. The Council accepted this and explained this would likely be in a care home setting and would depend on what vacancies were available at the relevant time.
17. Mr Y’s solicitor contacted the Council in late January requesting details of suitable interim placements for Mr X pending the move to direct payments. The Council said it would send details of options but that Mr Y must act to identify a suitable placement within a suitable timescale so Mr X would not be in the interim placement too long as that would not be in his best interests.
18. In early February 2019 Mr Y’s solicitor issued a Pre-Action Protocol (letter before action) to the Council. It said the Council had failed to offer Mr X a suitable placement to move to after the notice period expired and the Council had failed to provide a lawful care and support plan. It noted a meeting was scheduled for mid-February and required the Council to provide information on alternative placements before then.
19. The Council responded to Mr Y’s solicitor refuting the allegations made. It said it could only make an offer when there was a vacancy. It said it intended writing to Mr Y with the options available for interim care but the letter before claim was received first. It set out options of a placement at a respite/short term care home run by company B (care home A), an alternative care home or a domiciliary care package in a place of temporary residence. Mr Y had asked about availability at care home C (also run by company B) where Mr X had previously stayed for respite care but this option was not available at that time. The Council confirmed it had arranged to meet with Mr Y in the week before the end of the notice period. It said the care and support plan did not need updating for Mr Y to explore care options as Mr X required 24/7 care in supported living, in line with his current care plan.
20. Mr Y’s solicitor wrote to the Council setting out why they considered the options proposed were not suitable. They said Mr Y had found a supported living placement with a new company but would need four weeks to set this up. They asked again about care home C but said if it was not available, Mr Y would consider care home A.
21. Care home A contacted the Council in mid-February 2019 to confirm the placement was offered for three months only so Mr Y would have a deadline to find alternative accommodation.
22. Mr Y met with the Council and following this agreed to view another care home. The Council then wrote to Mr Y. It set out that care home A was available, as was the home he had recently viewed. Care home C was not.
23. Mr Y’s solicitor contacted the Council two days later to advise the supported living placement Mr Y had identified was in another council, council B’s area. Council B had refused to make it available for Mr X. Therefore, Mr Y needed to find another supported living arrangement which could take four to six months.
24. The Council emailed care home A which confirmed Mr X could stay there until 1 April after which a bed would hopefully be available at care home C. It reiterated it was an emergency placement bed and not a supported living arrangement. The Council emailed Mr Y three days prior to the end of the notice period. It confirmed a place was still available at care home A and it was satisfied this would meet Mr X’s needs. It gave Mr Y a list of care homes and supported living placements with places available that could potentially support Mr X. It said Mr Y needed to decide urgently or it would need to step in and make a best interests’ decision. Mr Y’s solicitor confirmed, the next day, that Mr Y accepted the placement at care home A as a short-term placement. Mr X moved into care home A.
25. In late February 2019 Mr Y’s solicitor contacted the Council. They noted Mr X was settling into care home A. They said Mr Y had delayed sending comments on the care and support plan due to a family illness. He wanted Mr X’s support needs to be set out fully to assist in the contracting process.
26. Later in March 2019 company B confirmed to the Council it would agree to Mr X staying at care home A for six months, but it considered Mr X needed a settled placement and care home A was not the best place for him. It later raised concerns with the Council that Mr Y had visited care home C and was keen for Mr X to return there. It was not prepared to offer a stay there as it had offered the short term stay at care home A until an alternative was found.
27. The Council emailed Mr Y. It set out that Mr X could stay at care home A if needed and that building works were being undertaken at care home C which would mean Mr X would need to change rooms regularly. Company B confirmed building works were due to take place and Mr Y agreed this would be unsettling. Mr Y sought confirmation Mr X could stay at care home A as long as he needed to. The care provider confirmed to the Council Mr X could stay for a maximum of six months as it was not an appropriate placement long term.
28. The Council responded to Mr Y. It said the placement at care home A was a temporary arrangement which they did not expect to be needed for longer than six months and asked to meet with Mr Y to discuss the long-term arrangements.
29. The Council held a review meeting with Mr Y at care home A in mid May 2019. At the meeting Mr Y said he was not told it was a short-term placement. Company B said it had clearly told the Council it could not be long term and it had agreed to honour it for six months. It said Mr X needed to leave before the end of July 2019, which it later revised to August 2019 – that is six months after he moved in.
30. The Council wrote to Mr Y’s solicitor to confirm care home A was never intended as a long-term placement. The intention was that Mr X would have a temporary stay in a care home while Mr Y commissioned an alternative arrangement using direct payments.
31. In June 2019 Mr Y’s solicitor submitted a formal complaint to the Council.
32. In early July 2019, the social worker contacted some care companies regarding an alternative placement for Mr X. The Council then provided Mr Y with options of a residential care placement and a supported living option for Mr X to move to. It set out that the residential option was high cost and so could only be funded on an interim short-term basis
33. In its complaint response the Council explained there was discussion around care home A being an interim placement of 3-6 months but accepted there was a lack of clarity between it and the care provider about the time limit for the staying at care home A. It apologised for this.
34. Mr X moved to an alternative residential placement in August 2019. Mr X later moved into a long term supported living property in April 2020.

Findings

35. The Council agreed to arrange short term provision for Mr X to enable Mr Y to identify a suitable long term supported living provision.
36. Although Mr X’s representative says the Council should have started looking for alternative accommodation sooner, Mr X’s notice period did not expire until late February 2019. The Council had a duty to ensure Mr X’s eligible needs were met. It was satisfied the current provider was meeting these needs and provided Mr Y with alternative options before the end of the notice period. It also provided Mr Y with a list of all vacancies in the Council’s area. The Council was satisfied care home A could meet Mr X’s needs. It was open to Mr Y to explore alternative options at that time or at any time before the notice period expired. The Council was not at fault.
37. Care home A is a care home for short term/respite placements. It was therefore always meant to be short term option and Mr Y was aware this was an interim placement. Company B told the Council the placement was agreed for three months which it later agreed to extend to six months. There is no evidence the Council explained these timescales to Mr Y. In its complaint response, the Council apologised for the lack of clarity regarding the timescales and I am satisfied this is an appropriate remedy for any injustice caused.
38. The Council did not provide Mr Y with strict deadlines but a short-term respite care home could never be expected to be long term care option. Mr Y initially identified a placement which he hoped Mr X could move into within four weeks. When this fell through his solicitor told the Council they expected a placement to be arranged within four to six months. The Council therefore never expected the placement would need to last beyond six months. The Council’s decision to propose care home A as a suitable interim placement at the end of the notice period was not fault.

Care and support plans and direct payments

What happened

39. In January 2019 the Council sent Mr Y a draft needs assessment for Mr X. Mr Y was unhappy with it and provided comments and more detail for the Council to include.
40. In January 2019 Mr Y’s solicitor raised concerns that talks with potential care providers for direct payments were delayed because there was no agreed, up to date needs assessment, support plan and indicative budget. The Council responded that it had sent draft needs assessments to Mr Y in December and January but Mr Y had sent back a significant number of comments. It intended sending the final version that week which would take into account Mr Y’s views but which were the officer’s professional judgement.
41. Mr Y’s solicitor wrote a pre-action protocol letter to the Council in February 2019. This set out that they considered the Council had failed to provide a lawful care and support plan for Mr X for his care once the notice period expired. They said the plan omitted some of Mr X’s eligible care and support needs, did not set out how they would be met and referred to the current placement.
42. The Council responded that Mr X’s care plan set out the assessment of Mr X’s eligible needs for 24 hour care, in his own home, with support with all aspects of daily living. The address would be updated when Mr Y had found and secured appropriate accommodation for Mr X. It was provided to aid Mr Y in choosing a domiciliary care provider for Mr X’s long term care.
43. In late March 2019 Mr Y’s solicitor contacted the Council to request the finalised needs assessment and support plan including the indicative budget.
44. The Council responded in April 2019. It provided an updated needs assessment with a response to the comments made by Mr Y and a separate care plan for Mr X’s stay at care home A. This included day service provision and additional one to one hours. It considered the needs assessment contained sufficient information to formulate a care and support plan. It explained the care and support plan for the new setting would essentially be the same as that in place at Mr X’s previous supported living placement. It advised Mr Y to share the plan that was in place at the previous placement with providers.
45. Mr Y’s solicitor provided the Council with further comments on the needs assessment. They also asked for clarification of Mr X’s indicative personal budget. They said ‘while the personal budget awarded at [Mr X’s previous supported living placement] may be indicative of the direct payment amount, the DP requires confirmation and signing off’. The Council provided Mr Y with information on the hourly rates it used to pay staff. It later wrote to Mr Y’s solicitor and provided the revised needs assessment and support plan. It explained that the previous care plan was sufficient to outline the scope to allow any care provider to have a discussion about whether they were in principle able to meet Mr X’s needs ‘although the precise detail is not as he would wish [Mr X’s] care to be delivered’.
46. In June 2019 Mr Y’s solicitor submitted a formal complaint to the Council. Mr Y also provided comments on the care plan as he considered it was too vague.
47. In the complaint response the Council said it considered the needs assessment and support plan from Mr X’s previous supported living placement, along with the indicative budget, were sufficient for Mr Y to use when meeting potential providers. It acknowledged it had taken longer than normal to agree a care and support plan and apologised for this.
48. In July 2019 Mr Y provided further detail which he wanted including in Mr X’s care and support plan. The Council agreed to produce the care plan in a bespoke format and produced a revised care and support plan.
49. Mr Y provided further detailed comments in August and September 2019. The Council amended the care and support plan. It emailed Mr Y in September 2019 and confirmed this was its final care and support plan. It reiterated it had been able to arrange and implement a direct payment for many months. The specific use of the budget would be for Mr Y to negotiate with the new care provider.

Findings

50. Mr X had a care plan in place at his supported living setting. The Council also prepared an interim care plan for his stay at care home A which included day centre attendance and additional one to one hours.
51. There was delay in finalising the care plan for Mr X’s future supported living placement, but the delay was partly caused by Mr Y’s need for an increased level of detail than what would normally be expected in a care and support plan. The Council worked with Mr Y to reach agreement on the content and format of the plan. This caused delay but ensured Mr Y had full involvement in agreeing the content and format of the plan. This was not fault.
52. Throughout this time Mr X received appropriate care and support at care home A. There is no evidence the Council failed to meet Mr X’s eligible needs during this time. The delay finalising the care and support plan did not cause Mr X an injustice.
53. Even if I were to say the Council was at fault for the delay in finalising the care plan, it was always open to Mr Y to use the care plan from the previous supported living placement as a starting point for negotiations with new providers. In February 2019 Mr Y had already identified a potential provider which fell through, not because of a lack of a support plan, but due to difficulties in securing accommodation in a different council area. The Council explained the indicative budget would be based on the support Mr X received at his previous supported living placement. The Council also explained that once Mr Y identified a provider, he could approach the Council if he considered funding was not adequate. I am satisfied that the delay in agreeing and finalising the care and support plan did not prevent Mr Y from exploring alternative accommodation options.

Care and support at Care Home A

What happened

54. In mid-March 2019, care home A telephoned Mr Y as Mr X had bruising and swelling to his right foot. The care provider took Mr X to the hospital A and E department which noted bruising and swelling over Mr X’s foot and evidence of old injuries along the side of his foot. The advice was to treat as an ankle sprain and for Mr X to elevate the leg when at rest.
55. The care home staff continued to monitor Mr X’s foot over the next few weeks and in early April took Mr X for a follow up hospital appointment. The Doctor said tests indicated Mr X may have gone over/twisted his foot. Because Mr X would not rest with his leg elevated it would take longer for the swelling to go down.
56. The Council emailed Mr Y’s solicitor at the end of March to advise there was nothing to indicate Mr X’s foot injury was a new injury and so it did not meet the criteria for safeguarding.
57. In early April 2019 Mr Y’s solicitor asked that the injury to Mr X’s foot be investigated as a safeguarding incident. The Council confirmed it had asked care home A to submit a safeguarding referral.
58. In late April 2019 the care provider did not give Mr X a full dose of his medication. The care provider spoke to the out of hours GP and there was no evidence of any impact on Mr X. The NHS made a safeguarding referral regarding this as it was the second incident in 10 days. The care provider confirmed it had discussed this with all staff who would be re-trained in this area.
59. At the review meeting in May 2019 Mr Y asked about Mr X’s foot injury. The social worker agreed to check with the safeguarding unit about it. The meeting also discussed Mr X’s general welfare, concerns about recent medication errors and that Mr X had been unshaven at a recent visit. The care provider confirmed Mr X undertook a range of activities at the day centre and staff members also supported him to go out. Mr X was not able to go swimming as he would need 2:1 support for that.
60. The care provider said they had addressed the issue that Mr X was not shaved as this was unacceptable. They had followed this up with the relevant staff. Mr X was also not sleeping well. They discussed the impact of the continual change of residents at care home A and some practical suggestions to address this.
61. Following the meeting the Council wrote to Mr Y’s solicitor. It said it agreed there was no consensus about what happened to Mr X’s foot and it would investigate it as a safeguarding referral.
62. In June 2019 Mr Y raised concerns with the Council that care home A told him Mr X was not sleeping well, was unshaven and unkempt and had a poor diet. Care home A advised that it would be happy to support Mr X to get his hair and nails cut but required funding to do this and asked that Mr Y send the money for this. It also asked if Mr Y would buy Mr X an electric shaver to assist with shaving. The Council contacted care home A about Mr Y’s concerns. Care home A set out the steps it had taken to support Mr X with sleeping. This included no caffeine at bedtime, strict bedtime routines and liaison with the GP. They considered the sleep pattern may relate to Mr X’s behaviour pattern which was affected by the current respite setting where the environment regularly changed.
63. In early July 2019 a Council officer contacted the multi-agency safeguarding hub (MASH) regarding the foot injury. MASH was satisfied the care provider took reasonable steps and followed the correct procedures by seeking medical advice. It said it was not always possible to avoid a muscle strain and it would be difficult to evidence this was due to lack of care.
64. Mr Y also raised safeguarding concerns that Mr X’s hair was uncut, his nails were long and uncut and he was unshaven. The MASH considered these issues were not safeguarding matters but related to care quality and so these were referred to the social worker.
65. In its complaint response of July 2019 the Council accepted there was a delay by the Council in referring the foot injury to the MASH after it had agreed to do so. It apologised for this. The Council considered care home A had acted appropriately to address Mr X’s sleep issues and it had seen no evidence of neglect.

Findings

66. I have seen no evidence of sustained poor practice at care home A and the care home was able to meet Mr X’s eligible care needs. Company B ran care home A and so were familiar with Mr X and able to transfer his care and support plans over to allow for continuity of care.
67. There were some occasions when the support provided to Mr X did not meet the standard we would expect. This is fault. There were medication errors after which the care home said staff were retrained in this area. The care home sought advice from the NHS and there is no evidence these errors caused harm. But they did cause Mr Y worry and frustration. On one visit Mr X was unshaven. Care home A apologised for this and said staff had been spoken to. It also asked Mr Y to provide an electric shaver. It therefore acted appropriately to prevent a recurrence of the faults.
68. When the care home noticed Mr X’s foot injury it acted appropriately and sought medical advice. The Council agreed to seek advice from the safeguarding hub. It delayed doing so and this is fault. However, there is no evidence this caused Mr X a significant injustice. MASH was satisfied the care provider acted appropriately and there was no evidence the injury resulted from neglect or a lack of care.
69. Mr X had difficulties sleeping at care home A. The evidence shows the care provider acted appropriately and sought advice, including from the GP. It tried practical steps to address the sleep problems. However, it was not a settled placement, with people coming and going who were there for short term respite. This is likely to have had an impact on Mr X but I cannot say this resulted from Council fault.

Transport costs

What happened

70. In early February 2019, the Council wrote to Mr Y ‘s solicitor in response to a letter before action. It set out the options available to meet Mr X’s needs. It proposed that if Mr X stayed at care home A he would attend a local day care service and ‘the Council would fund transport for [Mr X] to/from the day service’.
71. After Mr X moved into care home A, Mr Y raised some queries about the funding of the placement, including regarding transport costs. The Council responded and advised that transport to the day centre should be covered by Mr X’s PIP mobility (a disability benefit for those who have difficulty in getting around). The care provider would cover transport to hospital appointments.
72. Mr Y’s solicitor wrote to the Council in late February 2019 and again in early March, setting out why they considered Mr X’s transport should be arranged and funded by the Council. The Council responded in late March explaining why it disagreed and that Mr X’s transport costs to the day service should be funded through his PIP mobility. Company B sent Mr Y invoices for the transport costs.
73. In May 2019 Mr Y emailed company B and said the Council had agreed in February 2019 to fund transport to the day centre.
74. In June 2019 the Council emailed Mr Y with invoices for travel to the day centre. Mr Y responded that he understood this was funded as part of the placement as the Council’s letter of February 2019 had confirmed.
75. In response the Council accepted it had agreed to fund transport to and from the day placement and it later arranged to send the invoices to its finance department for payment.
76. In its complaint response to Mr Y’s solicitor in July 2019 the Council apologised for the errors in invoicing.

Findings

77. The Council was at fault when it invoiced Mr Y for travel to and from the day centre when it had previously agreed to fund this. While this was frustrating for Mr Y, there is no evidence Mr Y paid the invoices, or that Mr X was left out of pocket or that Mr X’s services were affected because of this.

Injustice

78. There is no evidence Mr X suffered a significant injustice from the faults identified. Mr X was unsettled and did not sleep well at care home A but there is no evidence this was Council fault. Because of the delay in identifying a long-term placement for Mr X, he had to move to another interim placement. However, I cannot say that was due to Council fault.
79. Mr Y was caused some frustration by the Council’s faults. The Council has already apologised for the frustration caused by these faults and I am satisfied that is an appropriate remedy.
80. Mr Y is seeking recompense for the solicitor’s costs involved in pursuing the complaint. Mr X’s solicitor is instructed by Mr X’s deputy, Mr Y. We do not generally expect people to have to instruct a solicitor to pursue their concerns with the Council or to make a complaint to the Council or to us. Mr Y is Mr X’s Court appointed Deputy and was able to make complaints on Mr X’s behalf. Mr Y has chosen to use a solicitor to pursue his concerns in some detail. That is his choice. But both complaints processes are designed for lay people and Mr Y was fully able to understand the issues. I see no grounds to depart from our usual guidance in this case and so do not recommend a reimbursement of the fees.

Final decision

81. I have completed my investigation. There is evidence of fault causing injustice which the Council has already remedied.

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Investigator's decision on behalf of the Ombudsman