Summary: We upheld some of Mr X’s complaints. There was poor communication by a care provider which acted on behalf of a council. The Council will apologise and make a symbolic payment to reflect his avoidable distress.

The complaint

1. Mr X complained South Gloucestershire Council (the Council) and Stoke Gifford Retirement Village (SGRV):
• Gave inaccurate information about the level of care provided
• Gave or allowed his mother Mrs Y to drink alcohol although she lacked mental capacity to make decisions around drinking and failed to consult with him about whether giving her alcohol was in her best interests
• Ended the placement inappropriately and with no prior warning
• Reported Mrs Y was wandering without telling him.
2. Mr X said this caused Mrs Y distress because she did not understand why she had to leave her home. And, it caused him a financial loss because he had to make other housing and care arrangements for Mrs Y with little notice.

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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 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. SGRV acted on behalf of the Council which arranged and funded her care package. We can investigate Mr X’s complaints about its services because of the legal provision described in the last paragraph.
6. 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

7. I considered Mr X’s complaint, SGRV’s responses and documents described later in this statement.
8. Mr X, SGRV 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

Relevant law and guidance

9. Councils arrange and fund care packages under powers and duties in the Care Act 2014. They have a duty to meet a person’s eligible unmet care needs, (Care Act 2014, section 18)
10. Where a council agrees a person has care and support needs which meet national eligibility criteria, it must issue them with a care and support plan which sets out their needs, explains which is an eligible need and says how much funding the person is entitled to. It should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
11. Statutory Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. The council should act promptly after receiving a request for a review. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
12. A council should revise a care and support plan where circumstances have changed in a way that affects the plan. Where there is a proposal to change how to meet eligible needs, a council should take all reasonable steps to reach agreement with the adult about how to meet those needs. (Care Act 2014, sections 27(4) and (5))
13. The Mental Capacity Act and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt (Code of Practice paragraph 4.34)
14. Where a person lacks capacity to make a decision, any decision made on their behalf should be taken in their best interests. There is a checklist of things to consider including:
• The person’s past and present wishes and feelings
• The beliefs and values which would influence them if they had capacity.
15. When dealing with adults who lack capacity to make decisions about their care, councils and bodies acting on their behalf should consult and take into account the views of: people the person has named to consult; carers; their attorney or deputy. Generally, councils consult about care and support plans by holding a best interests meeting involving relevant people.

What happened

16. Mrs Y has dementia. She moved into a flat at SGRV in November 2018
17. SGRV is extra care sheltered housing run by the Extra Care Charitable Trust. It provides housing (independent flats) and home care services for older adults with different care needs. People have their own flats and have a tenancy agreement. They receive care calls from care assistants. The service has a call button people can use to call for help between care visits. People are free to come and go as they please and the project does not provide 24-hour supervision. Although it has some other services like a bistro and activities similar to provision in residential care, SGRV is not a care home and is not registered with the Care Quality Commission to provide residential care services.
18. The Council arranged and funded Mrs Y’s care, with Mrs Y paying towards the cost as well. The Council told me in response to enquiries that Mrs Y’s care was ‘self-funded’. This is incorrect. Mrs Y’s care and support plans showed SCGV received core funding from the Council to provide Mrs Y with 12 hours of care visits a week initially and this was increased to just under 16 hours a week.
19. Mr X signed Mrs Y’s tenancy agreement when she moved into a flat at SCGV in November 2018. Under the agreement, the parties had to give written notice if they wanted to end the tenancy. SCGV would have needed a court order if it had wanted to evict Mrs X. Mrs Y’s rent was either paid for by housing benefit or from her own capital. Mr X received and signed a document called ‘key facts’ about SGRV. This had basic information and included a breakdown of the charges for housing and facilities.
20. The Council’s social care team carried out a review of Mrs Y’s care and support plan in May 2019. The review noted Mrs Y had a medium band care package which was for 16 hours a week of visits in the morning, at bed-time and escorts to the bistro at lunch. Mrs Y ate and drink independently. The review did not say anything about alcohol and noted no issues with regard to care.
21. SGRV had a care plan for Mrs Y. It did not say anything about alcohol consumption. It described the tasks care assistants helped Mrs Y with, including supporting her in the mornings and at bed-time with some care tasks, escorting her to the bistro for lunch and to organised activities.
22. In February 2020, Mr X complained to SGRV. He said staff were not encouraging Mrs Y to go to activities which she was paying extra for and she was often being given alcohol against his wishes. He said he had asked for visits to be reduced to morning and night. Mr X also said one of the other tenants was providing Mrs Y with alcohol and this was not what he wanted.
23. SGRV responded in March saying:
• Mrs Y attended morning activities, but in the afternoon, she often wanted a rest and staff couldn’t make her go regardless of whether it was felt she should go.
• The Council was funding some care hours and so they had emailed the Council to confirm this and would arrange a refund of the additional fees she had been paying
• The bistro was managed by a third party and he needed to contact them about not serving Mrs Y with alcohol.
• Staff could not prevent a friend from buying Mrs Y alcohol.
24. Records indicated Mrs Y was noted to be wandering in or around the building or the rest of the premises on several occasions in June and early July. It was noted on at least one occasion that other tenants had redirected her back to her flat. As SGRV did not provide 24-hour supervision, staff noted they could not guarantee to know exactly how many times Mrs Y wandered. On some occasions, care staff redirected Mrs Y back to her flat.
25. On 7 July SGRV asked the Council to conduct an urgent review of Mrs Y’s care needs as she had been seen in the car park and was confused. It is not clear from the papers, but it appears Mr X was not told about each individual incident of wandering.
26. On 10 July, the social worker emailed Mr X saying she had reviewed Mrs Y’s care needs and she would be better in residential care. The social worker explained the Council could arrange short term care while a long-term placement was identified. Mr X said he would remove his mother to live with another relative in a different area as SGRV could not guarantee her safety.
27. On the same day, SGRV emailed Mr X saying they were waiting to hear back from Mrs Y’s GP who they had contacted because staff thought Mrs Y may have an infection. The email went on to say Mrs Y’s social worker would review whether the placement was appropriate for her. Mr X emailed back to say he had removed Mrs Y.
28. Mr X complained to SGRV. Its first complaint response of 13 July said:
• The model was independent living and staff could not stop people leaving the premises
• There were records of incidents of wandering
• A friend bought Mrs Y a glass of wine.
29. SGRV’s final complaint response of 31 July said:
• It should have been clearer about what its responsibilities were under the care plan. Mrs Y was funded for four daily calls – wake-up, lunch, dinner, bedtime. She was not funded for additional tasks like taking her for exercise, activities or monitoring her outside her flat. He expected this additional support, but she was not funded for this. The issue was clouded by fact that Mr X did make extra payments, but as the Council was already paying for core care services, SGRV refunded these payments. Instead, it would have been better to discuss with him whether it should use his payment to pay for the extra tasks he was expecting.
• Regarding alcohol in the bistro. They carried out a mental capacity assessment – there then should have been a best interests’ decision about Mrs Y’s intake and how to manage this and a conversation as to whether this was even possible in the context of the service. The discussion did not go ahead because of the pandemic and the bar and bistro closed temporarily due to lock down.
• Staff did not police the building to prevent people from wandering but could have explained this better.
• Mrs Y’s wandering was recorded.
• They should have worked with social services to put measures in place to support Mrs Y’s safety while an alternative placement was found.
• They were willing to consider mediation before taking any further action and they would meet the costs.

Was there fault and if so did this cause injustice requiring a remedy?

30. Mrs Y’s care was arranged and funded by the Council. Any fault by SGRV was fault by the Council.

SGRV gave inaccurate information about the level of care provided.

SGRV gave or allowed Mrs Y to drink alcohol although she lacked mental capacity to make decisions around drinking and failed to consult with him about whether giving her alcohol was in her best interests.

31. SGRV already identified in its final complaint response that there were areas of fault in terms of communication with Mr X about responsibilities under Mrs Y’s care plan including about the nature of the service provided (there was no 24-hour supervision), about alcohol consumption and whether they could prevent Mrs Y consuming alcohol. Poor communication was fault which caused avoidable confusion.
32. I note also that under the Mental Capacity Act, there should have been a formal discussion about whether alcohol consumption was in Mrs Y’s best interests. This could have taken place by phone or video as the concern arose at the beginning of the pandemic when contact was curtailed. The failure to have a best interests discussion was not in line with the principles of the Mental Capacity Act and was fault. The outcome of the discussion would have been that the service could not prevent Mrs Y from getting alcohol from a friend (because SGRV did not supervise tenants closely in this way), although a discussion of how to support her to limit excessive consumption could have taken place.
33. I note SGRV offered to fund mediation with Mr X to explore whether differences could be resolved, but he had already decided on other action. The offer of mediation was a partial remedy for the confusion caused by poor communication.

SGRV ended the placement inappropriately and with no prior warning and reported Mrs Y was wandering without telling him

34. There is no evidence SGRV ended the placement formally. It raised concerns with the Council about a possible decline in Mrs Y’s health which was displaying in more frequent episodes of confusion and wandering. The Council then carried out a review of the placement and a social worker told him she needed residential care and the Council would arrange respite care while a long-term placement was identified. This was in line with the Council’s duties under section 18 of the Care Act 2014 and in line with the requirement to review the care and support plan due to a change in circumstances and so there was no fault.
35. There are emails between SGRV and Mr X and between him and the Council (social worker) indicating he was aware Mrs Y was wandering. SGRV did not provide constant supervision and so it was possible Mrs Y may have wandered without SGRV being made aware. There was no evidence of an intention to withhold information from Mr X. SGRV took appropriate action by contacting the Council to review Mrs Y’s care. This was in line with Statutory Guidance which required a review of a care and support where a person’s care needs may be changing.
36. SGRV offered to pay for mediation at the end of July. This was good practice and was an opportunity for Mr X to discuss his concerns. Mr X did not respond and escalated his complaint to us. This was his right, but mediation may have been an opportunity for him to explore issues of concern with SGRV in the presence of an independent person.
37. I do not uphold this complaint and there was no fault. There was no evidence SGRV required Mrs Y to leave immediately or gave formal notice, the Council carried out an urgent review, offered alternative respite care and SGRV offered mediation. It was appropriate for SGRV to involve the Council and report incidents of wandering because the Council was funding Mrs Y’s care.

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Agreed action

38. 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 found fault with SGRV’s service, I have made recommendations to the Council, which it has accepted.
39. The Council will, within one month:
• Apologise to Mr X for poor communication
• Pay him £150 to reflect the avoidable distress caused by poor communication described in paragraphs 31 and 32.

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Final decision

40. I have upheld some of Mr X’s complaints. There was poor communication by a care provider which acted on behalf of a council. The Council will apologise and make a symbolic payment to reflect his avoidable distress.
41. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman