Summary: Mr X complains on behalf of his father, Mr Y, the Council detained him against his will while it completed a Deprivation of Liberty Safeguards assessment. Mr X says this led to his father incurring unnecessary care home fees. We have found fault in the actions of the Council in relation to the information it supplied Mr Y. The Council has agreed to write to Mr X to issue an apology and pay a financial payment.

The complaint

1. Mr X complains on behalf of his father, Mr Y, the Council detained him against his will while it completed a Deprivation of Liberty Safeguards (DoLS) assessment.
2. Mr X says this led to his father incurring unnecessary care home fees.

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The Ombudsman’s role and powers

1. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
2. 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(1), as amended)
3. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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How I considered this complaint

4. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
5. Mr X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

6. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.
7. The Supreme Court defined deprivation of liberty as when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
8. If there is a conflict about a deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection.
9. Once there is or is likely to be a deprivation of liberty, it must be authorised under the DoLS scheme in the Mental Capacity Act 2005.
10. The ‘managing authority’ of the care home (the person registered or required to be registered by statute) must request authorisation from the ‘supervisory body’ (the council). There must be a request and an authorisation before a person is lawfully deprived of their liberty.
11. The application for authorisation should be made within 28 days.
12. There are two types of authorisation: standard authorisations and urgent authorisations. Standard authorisations are made by the council.
13. On application, the supervisory body must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. A minimum of two assessors, usually including a social worker or care worker, sometimes a psychiatrist or other medical person, must complete the six assessments. They should do so within 21 days, or, where an urgent authorisation has been given, before the urgent authorisation expires.
14. Urgent authorisations are made by the managing authority of the care home in urgent cases only, for seven days, pending application for a standard authorisation. In some cases, the supervisory body can extend an urgent authorisation up to 14 days in total.

What happened

15. Mr Y voluntarily went into a care home in early February 2024 for respite care following a fall at his home. Mr Y arranged to stay at the care home for five weeks.
16. The care home requested a DoLS assessment in early March 2024 and Mr Y remained at the care home while that process was underway.
17. Mr Y asked to leave the care home when his five-week stay had ended in mid-March 2024.
18. The care home emailed the Council in mid-March 2024 to say Mr Y’s family had concerns he would try to return home if the Council did not put DoLS in place.
19. The Council completed a DoLS assessment in late March 2024 and concluded that Mr Y lacked capacity to make decisions. The Council’s assessment took into account Mr Y’s family’s views about where he should live. The DoLS form notes Mr Y was not free to leave the premises of the care home. The form also notes that Mr Y returning home would be a feasible and realistic option and those making decisions about Mr Y’s care should consider this.
20. The family obtained a Lasting Power of Attorney (LPA) in mid-April 2024 and received a copy of the assessments the Council made. The family disputed the outcome of the assessment and the details contained within it.
21. The Council emailed the family in late April 2024 to say a Strengths and Needs assessment could take several months to complete in relation to Mr Y’s needs.
22. The Council emailed Mr Y’s daughter in early May 2024 and confirmed as the family had an LPA for Mr Y, they could make decisions for him. Such as being able to take him home. The email went on to say there was nothing to stop the family from taking Mr Y home even with DoLS in place. Mr Y’s daughter responded to the Council and said the family had been told Mr Y could not return home. Mr Y’s daughter said they had paperwork to confirm that Mr Y was not free to leave the care home premises.
23. The Council sent a further email to Mr Y’s daughter in early May 2024 to say it had advised her that as the family had an LPA, they were legally able to take him back home and arrange a suitable package of care. The email went on to say Mr Y’s daughter had told the Council she preferred to wait for the local Social Services Team to support the family in putting arrangements in place. The email also said if Mr Y’s family thought the process was taking too long they could arrange private care.
24. I understand the family arranged for Mr Y to return home in mid-June 2024.
25. The Council completed a Strengths and Needs assessment in mid- August 2024 which confirmed Mr Y was not eligible for funded services. The Council also emailed Mr Y’s daughter and said it had sent Mr Y’s assessment to a senior team to approve and authorise the respite costs between March and June 2024.
26. The Council emailed Mr Y’s daughter in early September 2024 and said DoLS authorisation only legalises restraining or preventing someone from leaving as part of their care. It does not stop someone from terminating their placement or moving out. The Council said Mr Y therefore had the opportunity to move out of the care home at any point.
27. Mr Y’s daughter emailed the Council in early September to say at no point before putting in place the LPA did it advise them Mr Y could leave the care home. Mr Y’s daughter said the family were told the opposite. Mr Y’s family then raised a formal complaint in late September 2024.
28. The Council responded to the complaint in mid-October 2024 and said it could not refund the costs Mr Y incurred while in the care home.
29. Mr Y’s family issued a further complaint in late October and said the complaint response implied they knew Mr Y could leave the care home, but they did not.
30. The Council responded again in mid-November 2024 to say Mr Y could have left the care home.
31. The family raised a further complaint in mid-December 2024 and said Mr Y wanted to leave the care home in March 2024 but was told he could not do so. The family said it was never told the implications of the DoLS assessment and Mr Y remained in the care home for longer than necessary.
32. The Council issued a final response in mid-January 2025 and said Mr Y would have been free to leave the care home under the supervision of family members. It also said it had discussed options with the family in early May 2024.

Analysis

33. Mr Y voluntarily went into the care home in February 2024 for a five-week period and was aware he would have to pay for the care he received. Towards the end of the agreed stay the care home applied for DoLS which was granted.
34. The family received paperwork from the Council which said that Mr Y was not free to leave the current accommodation. The family understandably believed this meant he had to remain in the care home.
35. The Council has confirmed that the family could have taken Mr Y home after the LPA was granted. However, I cannot see the Council told the family this until early May 2024. This is fault. The family have been left with the feeling that had they received the information sooner Mr Y would not have incurred the care costs he did.
36. After the Council told the family they could take Mr Y home, they did not do so for over a month. An email from the time records the family had said they wanted to wait for care arrangements to be put in place by the Council. As such, I cannot say that had the family been given the information about Mr Y being able to return home sooner that the outcome would have been any different.

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Action

37. Within four weeks of a final decision, the Council should:

• Write to Mr X to apologise for the uncertainty caused by the faults identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mr X £400 to recognise the uncertainty caused by the faults identified.
• In writing, remind relevant staff to provide families/representatives with clear information of a persons accommodation options when placing individuals under DoLS.

38. The Council should provide us with evidence it has complied with the above actions.

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Decision

39. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman