Summary: Ms X complains that the Council unnecessarily delayed Mrs Y returning home while it got authorisation from the Court of Protection for her to be deprived of her liberty at home. The Ombudsman finds the Council was at fault and this caused Mrs Y a financial loss, and distress, time and trouble to Ms X. It will waive 20 weeks of Mrs Y’s fees less her contribution, and pay £250 to Ms X.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains that the Council:
• Delayed Ms Y’s discharge from residential care unnecessarily.
• Charged Ms Y for a longer stay in residential care than she needed.
• Failed to complete a safeguarding enquiry
2. Ms X says this caused Ms Y considerable stress, ill-health, major disruption, and a “financial burden”. Ms Y has paid for six weeks but Ms X says she should not pay for the remainder of the stay because the delay was due to the Council.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
4. 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)
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). In this case, we have exercised discretion to consider matters back to 2016 because Ms X was Ms Y’s main carer when the need to complain to us arose. She also has a chronic illness and so it is understandable that her complaint was delayed.
6. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

7. (Local Government Act 1974, section 26A(2), as amended) In this case, Ms X is Ms Y’s daughter; we have decided she is a suitable person to complain on Ms Y’s behalf.

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How I considered this complaint

8. I considered information from the Complainant and from the Council.
9. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

10. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. They provide legal protection for people who lack mental capacity to consent to care or treatment. 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 Government issued a DoLS Code of Practice in 2008 as statutory guidance on how DoLS should be applied in practice.
11. Without authorization, deprivation of liberty is unlawful. Once there is, or is likely to be, a deprivation of liberty it must be authorized under the DoLS scheme in the MCA 2005. The application for authorization should be made within 28 days.
12. Where someone is in a care home or hospital, the care home or hospital must apply for authorization. Where a deprivation of liberty is caused through a package of care at home, arranged or funded by the local authority (LA), the LA must obtain an order from the Court of Protection (CoP).
13. The Supreme Court decided on 19 March 2014, in the case of P v Cheshire West and Chester Council and another and P and Q v Surrey County Council, that deprivation of liberty occurs 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”. The judgement clarified circumstances which might be considered a deprivation of liberty. This caused a large, nationwide increase in DoLS applications and to the CoP for cases in the home.

What happened

14. Mrs Y had various health conditions which caused her difficulties with cognition and mobility. At the time of these events, she had lived with her daughter, Ms X, for around eight years. Ms X was her main carer, her son also provided support, and she had carers visiting daily. She also attended a day centre three times each week.
15. In March 2016, Mrs Y was admitted to hospital following a fall.
16. On 27 April, the Council assessed Mrs Y’s mental capacity to decide about her care on discharge from hospital. It found she did not have capacity and decided it was in her best interests to spend some time in a nursing home while she recovered from the injury caused by the fall. Mrs Y’s family agreed with this decision.
17. On 20 May, Mrs Y was discharged from hospital into a care home.
18. On 5 July, the Council says it allocated a case manager to deal with Mrs Y’s discharge home. This was because Ms X had asked that Mrs Y return home. The Council found that the Care Provider had not applied for a DoLS authorisation although Mrs Y did not have capacity to decide about her care, and was not free to leave the home. The Care Provider believed it was not necessary, so the Council began a safeguarding enquiry.
19. On 25 July 2016, the Council completed another mental capacity assessment for the decision about whether Mrs Y should return home. The assessment found that Mrs Y did not have capacity to decide about this, and the best interest decision outcome was that she should return home. The Council identified that Mrs Y would still be restricted at home, and therefore would need a DoLS authorisation from the Court of Protection. It advised the family.
20. At this stage, Mrs Y had two social workers and the care manager involved in her case; the Council acknowledges this was confusing for Ms X. It wrote to explain the different roles.
21. During August, the Council granted the DoLS authorisation for the care home and planned the application to the CoP; the family challenged the need for this.
22. On 6 September, the Council agreed funding for the package of care at home and an OT completed a risk assessment for the use of bed rails when Mrs Y moved home. The Council’s legal department gathered all the information for the application to the CoP and eventually submitted the application in November.
23. On 23 November, the CoP advised it was treating the application as urgent, and on 25 November it authorised a deprivation of liberty for Mrs Y to be cared for at home.
24. On 18 December, Mrs Y returned home.
25. Mrs Y paid for only six weeks of her stay at the care home because Ms X felt she should not pay for more because it was not agreed, or necessary.
26. The Council responded to Ms X’s complaint and offered to reduce the outstanding amount from £2,867.05 to £1,433.52
27. When Mrs Y returned home, her contribution to her care was £25 per week.
28. In May 2017, Mrs Y had two falls while in residential respite. The care home did not let Ms X know about this and had not used bed rails. The Council completed a safeguarding enquiry. This found that the care home had not received the most up to date assessment which specified the use of bed rails. It also found that the care home had tried to contact Ms X unsuccessfully but not continued until successful. The care home should have reviewed the risk assessment after the first fall. The risks to Mrs Y were minimised because she did not return to that care home and she did not need a safeguarding plan. The Council followed up with the care home to ensure it learnt from the findings.

Was there fault which caused injustice?

29. I saw no evidence of a safeguarding enquiry that was not completed.
30. The Council was right to insist on a DoLS application from the residential care provider and to seek a DoLS authorisation from the CoP for Mrs Y’s care at home.
31. However, while the Council completed the necessary mental capacity assessments and best interests decisions, it approached this from the wrong perspective. It decided it would be in Mrs Y’s best interests to return home; this was the least restrictive option. It should have arranged for Mrs Y to be cared for at home while it applied for authorisation from the CoP. In keeping her in the care home, it was authorising the deprivation of her liberty but not in the least restrictive way.
32. There will always be circumstances where people are deprived of their liberty before an authorisation can be obtained. If someone is at home when this happens, it is not necessary to admit them to residential care pending authorisation from the CoP. The Council needed to deal with this as with any other situation requiring authorisation. It completed risk assessments, identified equipment she needed and developed an appropriate care plan which it submitted to the CoP. If this was the best arrangement for her, it should have put it in place pending authorisation. The Council was at fault here and caused avoidable and significant distress to Ms X. It also potentially caused a financial loss to Mrs Y.
33. Mrs Y should have returned home soon after the Council decided it would be in her best interests on 25 July 2016. So, she remained in the care home for around 20 weeks longer than necessary. Had Mrs Y returned home sooner, we can say on balance of probability, she would have paid around £25 per week towards her care at home.

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Agreed action

34. To remedy the injustice identified above, I recommended the Council:
• Apologise to Ms X for the faults identified above and set out the actions it will take, or has taken, to remedy the injustice and avoid similar problems in future.
• Reduce Mrs Y’s total outstanding fees by 20 weeks, less £25 per week which represents her contribution to care had she been at home.
• Pay Ms X £250 for the distress, time and trouble it caused.
• Review its procedures and ensure staff are clear about how to process similar cases in future.
• Complete these actions within two months of the final decision.
• Provide evidence to the Ombudsman. Suitable evidence might include:
1. a copy of the letter;
2. details of the calculation and the amount waived;
3. confirmation of payments; and
4. the outcome of the review and action taken.
35. The Council has agreed to complete these actions.

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Final decision

36. I have completed my investigation and uphold Ms X’s complaints that the Council:
• Delayed Ms Y’s discharge from residential care unnecessarily.
• Charged Ms Y for a longer stay in residential care than she needed.
37. I do not uphold Ms X’s complaint that the Council failed to complete a safeguarding enquiry.
38. In completing the agreed actions above, the Council will put right the injustice it caused as far as possible.

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Investigator's decision on behalf of the Ombudsman