Summary: Mr D complained about the standard of care his son receives in a care home arranged by the Council; the Council’s decision not to move his son; and its delay in responding to his complaint. We found there was delay which caused Mr D distress and time and trouble. The Council has agreed to apologise and make a symbolic payment to remedy this.

The complaint

1. Mr D complains through an advocate (Ms F) on behalf of his son, Mr J, about the standard of care his son receives in a care home arranged by the Council and the Council’s decision not to move Mr J to a different care home. He also complains the Council delayed responding to his complaint.
2. Mr D says this has affected him emotionally and physically and he cannot visit his son regularly.

Back to top

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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. We provide a free service but must use public money carefully. We do not start, or may decide not to continue with, an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6))

7. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
8. We may investigate complaints from the person affected by the complaint issues, or from someone they authorise in writing to act for them. If the person affected cannot give their authority, we may investigate a complaint from a person we consider to be a suitable representative. (section 26A or 34C, Local Government Act 1974)
9. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
10. 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)

Back to top

How I considered this complaint

11. I considered the information Mr D sent and the Council’s response to my enquiries.
12. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the Council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
13. Mr D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Care and support needs

14. The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. The person’s needs and how these will be met must be set out in a care and support plan.
15. Councils should keep care and support plans under review. 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.
16. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions.

Mental capacity and best interest decision making

17. 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.
18. 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.
19. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Council complaint procedure

20. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
21. The Council’s adult social care complaint procedure is a single stage. It aims to respond to the complaint within 30 working days. The policy says the service manager is responsible for ensuring complaints in their area are responded to.

COVID-19

22. In response to the COVID-19 pandemic and the national lockdown in March 2020, many care homes restricted visiting.
23. The Government issued guidance for care homes on 2 April 2020. This said family and friends should be advised not to visit care homes, except next of kin in exceptional situations such as end of life. It issued new guidance in July 2020 that care homes should develop a policy for limited visits based on risk assessments.
24. The Council issued guidance to its adult social care staff in July 2020. This said staff should work from home and carry out assessments and reviews remotely, but face to face work could be done “where not doing so might result in harm to the customer, carer or others.” It also says “Visits will also be undertaken where seeing the person in their setting is important.”

What happened

25. Mr D’s son, Mr J, has severe cognitive impairment following a brain injury. He has significant communication difficulties and does not have the capacity to decide where he should live. Mr J lives in a care home (“the Home”). Before the pandemic, the staff supported him to visit Mr D, who is in his 80s, at home twice a week.
26. Mr D complained to the Council about his son’s care on 19 March 2020. He said he had had concerns about the Home for ten years and there were many incidents of poor care, such as Mr J having a rash, not being given medication and having cuts from being shaved. Mr D was also concerned that Mr J was at risk from other residents and that the Home’s managers were not available.
27. Mr D asked the Council to move Mr J to another care home that was closer to him so he could visit more often and more easily. Mr D noted he had to get taxis to travel to the Home, which was expensive.
28. The first national COVID-19 lockdown then started and care homes were advised by the Government to restrict visitors. It also allowed councils to use easements from its Care Act duties to temporarily suspend planned reviews of people’s care and support needs. The Council decided to use these easements from 16 April to 26 May.
29. In April, Mr J’s independent advocate reviewed his stay at the Home, as it is a deprivation of his liberty. He noted that Mr D wanted Mr J to move to a new home, but found it was in Mr J’s best interest to remain at the Home for the next eight months, pending a review of his placement.
30. Mr J’s social worker spoke to Mr D about his concerns and then spoke to the Home. She replied to Mr D’s complaint on 2 June. The reply set out the Home’s response to each concern, for example that cream was being applied to the rash, changes had been made to the way Mr J’s medicines were managed, new types of razors were being used, managers were at the Home each day and Mr J was not at risk from the other residents. The Council did not consider that Mr J was at risk of significant harm and was satisfied the Home had acted on Mr D’s concerns. It said it would review Mr J’s needs to determine if he should move to a different home, but this was not possible at the moment due to the COVID-19 restrictions on visiting the Home.
31. Mr D was dissatisfied and Ms F told the Council he wished to escalate his complaint to the Ombudsman. There was a discussion between Ms F and the Council’s service manager about next steps. The service manager had been unaware of the social worker’s complaint response. She said that the Council had been trying to resolve the complaint informally and the next stage would be a complaint investigation by a quality assurance officer, rather than the Ombudsman.
32. The Council issued guidance to its adult social care staff on 1 July about visiting service users. This said visits could be done in certain circumstances.
33. Ms F asked the Council for an update on its investigation. In response the social worker said she could not determine whether Mr J should move to a new care home until she had seen him in the Home, carried out a capacity assessment and made a best interest decision. She said “no care homes were accepting visitors or moving people unless absolutely necessary.”
34. The Government issued new guidance on visiting care homes on 22 July. This said visits were possible in some circumstances, based on risk assessments.
35. As part of its complaint investigation, the Council wrote to the Home with the concerns Mr D had raised. The Home responded on 10 August on similar lines to its previous reply, although some new issues were covered such as nail care.
36. Ms F chased the Council in September for the outcome of its complaint investigation. The Council said it was still not possible to visit Mr J and decide where he should live. Ms F continued to ask the Council for a response to the complaint. She said Mr D was becoming increasingly distressed about the lack of reply.
37. The Council replied in October 2020 that it was liaising with the social worker about moving Mr J to a new home and was looking for homes near Mr D.
38. Mr D came to the Ombudsman in November 2020. The Council told us it had not yet replied to his complaint so it was too soon for us to consider it.
39. In December 2020, authorisation to deprive Mr J of his liberty and for him to stay at the Home was again granted following a remote assessment of his capacity.
40. The Council then replied to Mr D’s complaint. It said it was satisfied with the Home’s response to his concerns and it was considered to be in Mr J’s best interest to remain at the Home but an assessment would be done when COVID-19 restrictions allowed.
41. In February 2021 a social worker visited Mr J in the Home to review his care and support needs. The review found that a best interest decision about where Mr J should live was needed. It notes:
• Mr D’s concerns about the Home had been investigated and were “not of a nature that would suggest Mr J [was] at risk of harm or neglect”.
• It was felt the review could not wait until the pandemic had passed as Mr D had raised concerns and was unhappy with the outcome of the investigation carried out over the phone, but the family were not able to be present at the review because of COVID-19 restrictions.
42. Further authorisation to deprive Mr J of his liberty and for him to stay at the Home was granted in August 2021. These assessments were again done remotely.
43. Ms F came to the Ombudsman but we did not have Mr D’s consent for her to complain on his behalf. We obtained this in February 2022. We decided to exercise our discretion to investigate as Mr D had first approached us in November 2020.
44. In October 2021, the Council made a decision that it was in Mr J’s best interest to remain at the Home. An application has since been made to the Court of Protection as Mr D disagrees with this decision.
45. Mr D told us through Ms F that he was not happy with the Council’s complaint response as it did not answer his issues and some were still ongoing, such as problems with nail care and shaving.

My findings

Standard of care in the Home

46. I have reviewed the concerns Mr D raised in March 2020 about the quality of care for Mr J at the Home and the Home’s and Council’s responses to these. The Council has investigated and found that these incidents do not indicate Mr J is at risk of significant harm and it is satisfied with how the Home had dealt with them. There is no fault in the way it has reached this view.
47. I consider I can add nothing more to the Council’s investigation and that any investigation by the Ombudsman would not lead to a different outcome. I am therefore using my discretion (as set out in paragraph 6) not to investigate this part of Mr D’s complaint any further.

Decision not to move Mr J

48. It is not the Ombudsman's role to decide what, if any, care and support a person needs. That is the council's role. The Ombudsman's role is to consider if the council has followed the correct process for establishing a person's needs and if it acted correctly when this process was complete. In doing so we look at what information the council considered, and if it took account of the service user’s and carer’s wishes. If a council considers all this information properly the Ombudsman cannot find a council at fault just because a service user disagrees with its decision, or outcome of an assessment.
49. This means I cannot say which care home Mr J should live in. I have looked at how the Council decided he should stay at the Home.
50. I find there was delay from July 2020 to October 2021 in making the best interest decision that Mr J should remain in the Home.
51. I do not find fault with the decision not to visit Mr J from March to July 2020. The Home was restricting visitors and early in the pandemic the guidance was changing. I consider it was appropriate at that point for the Council to decide the risks were too great.
52. After July 2020, the Council could have determined, in line with its own and the Government’s guidance, that a visit to Mr J was essential as he needed to be seen in his setting. In addition, I can see no reason why the review, capacity assessment and best interest decision making could not have been done remotely in summer 2020. The deprivation of liberty reviews were done remotely in April and December 2020, as was the best interest decision in October 2021.
53. In response to my draft decision, the Council said the social worker’s judgment was that an in-person visit was necessary but the Home was reluctant to accept visitors due to the risk.
54. I accept the Council was balancing the risks of coronavirus transmission with Mr J’s rights to be reviewed and that it was entitled to decide those risks were too great. However, the Council and Home should have carried out a risk assessment to determine whether COVID secure measures could have been taken to enable this visit to happen. I have not seen such a risk assessment and I find this was fault.
55. I also consider that taking from February to October 2021 to make the best interest decision was too long.
56. In response to my draft decision, the Council said that it had made a best interest decision in March 2019 that it was in Mr J’s best interests to remain at the Home. It considered it likely the decision would not change as his circumstances had not changed. It had agreed to revisit the matter but felt it was appropriate to prioritise more complex and high-risk customers, taking account of its previous decision, support from other family members, that the DOLS team were happy with placement, the Home was rated good by CQC and all the evidence suggested that Mr J was being cared for in a safe environment. It also spent time researching alternative care homes to inform a new best interest decision.
57. The Care and Support Guidance says assessments should be carried out over an appropriate and reasonable timescale and the Ombudsman’s guidance on good administrative practice says councils should take timely decisions and respond to any delays proactively. So whilst I acknowledge the Council’s reasoning, I find there was delay and that the best interest decision could have been taken sooner than October 2021.
58. I find this delay caused distress to Mr D as he waited for over a year for a formal decision about his request to move Mr J which he could challenge.
59. However, I cannot say that if a review had been done sooner it would have found Mr J should move. In fact, it is likely that it would have found it was in his best interest to stay at the Home. I say this because the independent advocate found it was best for Mr J to stay at the Home in April 2020 and I have seen no evidence of fault in the way the October 2021 decision was taken that he should stay there. As I have found no fault in that decision-making, I cannot challenge the Council’s view that Mr J should remain in the Home.
60. I do not consider Mr J has been caused any significant injustice by this delay as he has continued to have his needs met in the Home.

Complaint handling

61. There was fault in complaint handling.
62. Mr D complained on 19 March 2020 but did not receive a reply until 2 June 2020, about a month late. However, our guidance on good administrative practice during the pandemic accepts that council complaint handling may have been reduced in that period, causing delays. I therefore do not find fault with this delay.
63. When Mr D said he wished to escalate his complaint to the Ombudsman in late June 2020 the Council advised it had not yet dealt with his complaint. This was fault. The Council’s adult social care procedure is a single stage, there is no local resolution stage. Although the 2 June response had been sent by the social worker, not the service manager, the Council should have accepted that it had already replied to Mr D’s complaint rather than saying a second complaint investigation was needed.
64. There was then a further delay in responding. The Council had received a response from the Home in August 2020, but it did not reply formally to the complaint until December 2020. This seems to have been because it was waiting to decide whether Mr J should move, but it could have separated that matter out from its response to Mr D’s concerns about the Home. I therefore consider the complaint response was delayed unnecessarily.
65. When Mr D came to us in November 2020, the Council said it had not yet replied to his complaint. We therefore could not investigate. However, I find this was fault. As I have set out above, it had replied to his complaint in June 2020.
66. If there had been no fault, Mr D could have come to the Ombudsman in July 2020, although it is unlikely that we would have issued any findings before November 2020 and, as I explained in paragraph 49, we could not have said which home Mr J should live in. Nonetheless, Mr D has been caused distress and time and trouble by delay in complaint handling.
67. When we have evidence of fault causing injustice, we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. The Ombudsman’s guidance suggests a remedy for distress should normally be a moderate sum, up to £300.

Back to top

Agreed action

68. Within a month of my final decision, the Council has agreed to apologise to Mr D and pay him £200 to acknowledge the distress caused by fault.

Back to top

Final decision

69. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman