Summary: The Council’s complaint responses should have explained the circumstances of Mrs Y’s fall in a care home it commissioned. This was fault causing avoidable distress. The Council will apologise for its poor complaint responses. There was no fault in placing Mrs Y in a care home in a different area because the evidence shows her family agreed.

The complaint

1. Mr X complained West Berkshire Council (the Council) placed his late mother Mrs Y in Marlborough Lodge Care Home (the Care Home) too far away from her family and she had a fall which was unexplained.
2. Mr X also complained Mrs Y was not allowed to go to a funeral because of COVID-19 restrictions imposed by the Care Home.
3. Mr X said this caused avoidable distress and inconvenience.

Back to top

The Ombudsman’s role and powers

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. We can investigate the actions of the Care Home because the Council arranged and funded Mrs Y’s care under powers and duties in the Care Act 2014.
6. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but we must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

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

7. 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

8. I considered Mr X’s complaint, the Council’s complaint responses and documents in this statement.
9. Mr X, the Council and the Care Home 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

Relevant law and guidance

10. Councils arrange care and support for adults with eligible care needs following an assessment. The Care Act 2014 allows councils to provide or arrange care and support without completing an assessment first where there is an urgent need. (Care Act 2014, section 19(3))
11. The Mental Capacity Act and Code of Practice 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)
12. A person lacks mental capacity to make a decision if they have a temporary or permanent impairment or disturbance of the brain or mind and they cannot make a specific decision because they are unable:
• To understand and retain relevant information or
• Weight that information as part of the decision-making process or
• Communicate the decision (whether by talking using sign language or other means.) (Mental Capacity Act 2005, section 3)
13. A Lasting Power of Attorney (LPA) is a legal document which gives an adult power to make decisions about another adult’s welfare and/ or finances where the adult lacks mental capacity to make the particular decision in question.

What happened

14. Mrs Y had was in hospital in Summer 2021 due to wandering and confusion. Her daughter Ms Z had an LPA for health and welfare.
15. The Council told me it did not complete a social care assessment before Mrs Y was discharged from hospital because she required an emergency placement. This was due to her husband’s health declining and therefore he could no longer look after her at home. The Council told me the intention was to complete a social care assessment and a social worker started the process once Mrs Y moved to the Care Home.
16. At the end of July, the hospital carried out an assessment of Mrs Y’s mental capacity to make decisions about where she lived and about her care and concluded she lacked capacity. The social worker noted the advantages and disadvantages of Mrs Y returning home with care and moving into a care home. She also noted Mrs Y’s daughter’s (Ms Z’s) view that she was not safe to return home. The outcome was everyone consulted agreed with a plan for Mrs Y to go into a temporary care home.
17. The case notes show a social worker spoke to Ms Z who told her the family agreed for Mrs Y to be placed in a care home. Mrs Y’s husband was seriously ill and his health had declined. The notes indicate the social worker consulted three care homes including the Care Home. The other two homes declined to offer Mrs Y a place.
18. The Care Home, which is in a different area, offered Mrs Y a place. The social worker spoke to Ms Z who is noted to have said she was happy and agreed to the placement. The social worker said she would review the placement in due course. Mrs Y moved to the Care Home at the start of August.
19. The Care Home’s care plans and risk assessments said Mrs Y had a history of falls in the past, she had a sensor mat in her room and walked using a frame. Walkways were to be kept clear.
20. Mrs Y’s husband died a week after Mrs Y moved into the Care Home. I understand from the Council that she attended his funeral because she had already left the Care Home by the time it took place.
21. The Council sent me an initial contact assessment which was started at a meeting at the Care Home with Ms Z, Mrs Y and the manager of the Care Home. The social worker noted Mrs Y was distressed during the meeting; Ms Z said she had found another care home and Mrs Y said she wanted to stay where she was.
22. Mrs Y had a fall. The Care Home reported the fall to the Care Quality Commission (CQC) and a member of staff did a witness statement describing what they saw. The record to the CQC said:

“On 21.08.2021, at 17:00, Mrs Y got up from the dining chair to complement the chef about her cooking through the kitchen hatch. The cook then noticed Mrs Y lose her footing and fall backwards. Staff member XX attended to Mrs Y and asked her if she was able to get herself up to which she said no. She was also expressing pain in her left finger. 999 was then immediately called for an ambulance.

Upon arrival, paramedics tried to move her to which she was expressing lots of pain. The paramedics then decided to take her in for an x-ray for a suspected broken finger.

On 23.08.2021, multiple attempts were made to [contact] the hospital to find out whether Mrs Y had broken a bone to which there was no response.

On 24.08.2021, the daughter was called to which she mentioned Mrs Y had broken her left hip.

The hospital were then also called to confirm this. The sister nurse of trauma unit confirmed she had broken the left neck of femur (left hip).”

Action Taken:

- Family been informed

- Safeguarding team alerted

- Incident form completed and reviewed.

Follow up action: - Will review her care plan and risk assessments when she returns from hospital.”

23. The case notes indicate the social worker and Ms Z spoke in the last week of August and Ms Z said Mrs Y had hip surgery. Ms Z said she intended her mother to go to a different care home. The social worker said the Council’s plan was for Mrs Y to return to the Care Home and Ms Z said she would arrange her mother’s care privately. I understand the family arranged and funded a different care home for Mrs Y without the Council’s involvement.
24. Mr X complained to the Council. Its responses said:
• It approached three homes but only one offered a place. Ms Z accepted this at the time
• The Care Home’s manager felt Mrs Y had mental capacity to decide where she lived and had said she wanted to stay at the Care Home
• Officers intended to complete a Mental Capacity Assessment, but Mrs Y was admitted to hospital and discharged to a different placement
• As there were different views about whether Mrs Y had capacity then it was appropriate for council officers to carry out an assessment of capacity. There was no intention to collude or take sides with the Care Home’s manager or to exclude family.

Findings

25. There was no fault by the Council in placing Mrs Y in the Care Home. It used powers in the Care Act to arrange and fund Mrs Y’s care in the Care Home before completing a social care assessment as the situation was urgent. This was in line with section 19(3) of the Care Act 2014. The records show Mrs Y’s daughter was consulted beforehand and agreed to the placement. So there was no fault, despite the Care Home being in a different area and not close to the family.
26. There was no fault in council officers deciding to complete a mental capacity assessment. This is because the Code of Practice to the Mental Capacity Act says an assessment is needed where a person’s capacity is in doubt. As the manager expressed doubts about Mrs Y’s capacity to make decisions about where she lived, it was appropriate for the Council to suggest an assessment.
27. I note the Council’s complaint responses did not explain the circumstances leading to Mrs Y’s fall. My view is the Council should have sought information from the Care Home about the fall and responded to the family’s complaint about it. This would have reassured the family about what happened and that staff at the Care Home took appropriate action at the time. The records indicate Mrs Y had a witnessed fall in a common area of the home. She could walk independently with her frame and the care plans said she did not need supervision with walking. There is nothing to suggest the fall could have been prevented. It was an accident, but not fault. I am satisfied the Care Home took appropriate steps to inform Ms Z about what was known at the time and to report the incident to the Care Quality Commission.

Back to top

Agreed action

28. The Council’s complaint responses should have explained the circumstances of Mrs Y’s fall in a care home it commissioned. This was fault causing avoidable distress. The Council should apologise for its poor complaint responses within one month of my final decision.

Back to top

Final decision

29. I have upheld a complaint about one aspect of Mrs Y’s care: the failure to respond to her family’s complaint about a fall. There is no fault in arranging an out of area placement because Mrs Y’s family were consulted and agreed to it.
30. I have completed the investigation

Back to top

Parts of the complaint that I did not investigate

31. I stopped investigating the complaint in paragraph two because Mrs Y was not prevented from attending the funeral because she was no longer in the Care Home by the time the funeral took place (she was in hospital). So she was not prevented from attending the funeral because of any actions by the Care Home.
32. I did not investigate other complaints from Mr X because there was no significant injustice or apparent fault including complaints about:
• The manager being aggressive
• The lack of a pod with a screen
• The manager telling Mrs Y her husband had died
• Loss of small items
• The lack of a private area for visitors, noisy alarms or changing Mrs Y’s GP.

Back to top

Investigator's decision on behalf of the Ombudsman