Summary: Ms C complained the Council had wrongly placed her mother in a residential care home and failed to tell her about the care costs. She said it failed to consider her views properly, made errors, and fabricated her views when it made its best interest decision. We did not find enough evidence of fault in the process the Council followed. It therefore reached decisions it was entitled to make, and we cannot criticise the merits of decisions properly made. There was not enough evidence to make a finding on Ms C’s allegation her views had been fabricated.

The complaint

1. The complainant, whom I shall refer to as Ms C, complained about the Council’s handling of her mother’s (Mrs X) care arrangements. She said it:
• wrongly placed Mrs X in a care home without properly considering her best interest, the least restrictive option and the views of the family;
• fabricated her views in its best interest decision and failed to give her evidence how it reached its decision, and recorded another person’s name and information in part of the decision;
• failed to consult her in relation to a Deprivation of Liberty Safeguards assessment;
• failed to tell her, or Mrs X, she had to pay for her care; and
• failed to properly respond to her complaint.
2. As a result, Ms C said she and Mrs X experienced distress as Mrs X was locked away from her family for over a year at a time when her husband had just passed away.

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. 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

7. As part of my investigation, I have:
• considered Ms C’s complaint and the Council’s responses;
• discussed the complaint with Ms C and considered the information she provided;
• considered the information the Council provided in response to my enquiries; and
• considered the legislation and guidance relevant to the complaint.
8. Ms C 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

Legislation and guidance

9. The Mental Capacity Act 2005 provides a statutory framework for people who lack capacity to make decisions for themselves. It sets out who can take decisions, in what situations, and how they should go about this. The Mental Capacity code of practice provides further guidance on the application of the Act.
10. The code of practice notes the act places a duty on the decision-maker to consult other people close to a person who lacks capacity, where practical and appropriate, on decisions affecting the person and what might be in the person’s best interest. The decision maker has a duty to take into account the views of the following people, where it is practical and appropriate to do so:
• anyone the person has previously named as someone they want to be consulted;
• anyone involved in caring for the person;
• anyone interested in their welfare (for example, family carers, other close relatives, or an advocate already working with the person);
• an attorney appointed by the person under a lasting power of attorney; and
• a deputy appointed for that person by the Court of Protection.
11. Decision makers must show they have thought carefully about who to speak to. If it is practical and appropriate to speak to the above people, they must do so and must take their views into account. They must be able to explain why they did not speak to a particular person, and it is good practice to have a clear record of their reasons.
12. The Deprivation of Liberty Safeguards (DoLS) 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.
13. To obtain a standard authorisation, the care home or hospital (‘the managing authority’) makes a request to a team in the council (‘the supervisory body’). The supervisory body then carries out six assessments to decide whether to approve the authorisation: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’.
14. A supervisory body can grant or refuse an authorisation and it can make conditions including changes to a care plan to ensure there are fewer restrictions. It also sets a time limit for the authorisation.

What happened

15. In 2020 Mrs X was living in her home with her husband, who died. Her health deteriorated and she was admitted to hospital with an infection and grief delirium. A doctor assessed her to lack capacity to make decisions at the time.
16. When the hospital found Mrs X was ready to be discharged, she was placed in a care home temporarily.
17. After another hospital admission, the Council and professionals found Mrs X needed 24-hour care and a care home was the best option for her. Mrs X was discharged to another care home (the Care Home), which primarily had dementia residents.
18. Ms C wanted Mrs X to return home but agreed to the arrangement as the Council’s social worker told her it was a temporary measure.
19. The Council’s social worker made a Deprivation of Liberty safeguards (DoLS) assessment referral for Mrs X. This was because the Care Home had reported she had hit and bit staff, she had had a fall, and due to concerns about her safety without support. Ms C disagreed with the Council’s view and refused to sign the agreement. No DoLS assessment was completed by the time Mrs X left the Care Home as the urgency was considered low.
20. In Autumn 2020, the Council arranged for a best interest decision assessment to decide Mrs X’s longer term care plans. It considered the views of Mrs X, Ms C, professionals, and Mrs X’s granddaughter. It decided it was in Mrs X’s best interest to remain at the Care Home.
21. Mrs X’s COVID-19 funding ended and she became a self-funder. The Council sent financial information to Ms C and advised her to apply for deputyship to manage Mrs X’s affairs. It also considered other care homes for Mrs X, but these either had no space or could not meet her needs.
22. Ms C applied for bridging funding with the Court of Protection and the Council agreed to cover Mrs X’s care home costs until his was in place. It told Ms C it would do a financial assessment when her deputyship was in place, and she had access to Mrs X’s finances.
23. In late 2020, the Council tried to contact Ms C and Mrs X’s granddaughter regarding the payments of fees, the bridging application and the deputyship application, but it did not receive the information it had asked for.
24. In early 2021, the Council told Ms C the Court of Protection bridging funding had ended in late 2020 and Mrs X would be self-funding her care support in the Care Home.
25. As Ms C did not contact the Council or the Care Home, the Care Home gave notice to Mrs X and told Ms C it would end the placement due to non-payment of fees.
26. Shortly after, the Council’s social worker spoke with Ms C. Ms C said she had thought the COVID-19 funding would cover Mrs X’s care costs. The social worker explained the care costs and the best interest decision that had been made. She arranged for Ms C to receive a copy of its decisions, as she said she had not received these previously. She also asked Ms C to provide details of her plans for Mrs X to return home and the care arrangements she had put in place.
27. The Council did not receive Ms C’s care plans and arrangements for Mrs X to return home, nor the status of her application for deputyship for Mrs X. When it did manage to speak with Ms C, she told the Council she was arranging 24-hour care for Ms C in her home, and she did not agree for Mrs X to be in a permanent care home. She also said she had applied for deputyship and would discuss payment of the Care Home fees with the Council’s finance team.
28. The Care Home told Ms C and the Council it would give her until Spring 2021 to arrange Mrs X’s care in her home.
29. Ms C was unhappy with how the Council’s decisions around Mrs X’s care arrangements. She told the Council she would move her to a care home nearer to Ms C and Mrs X’s granddaughter.
30. In summer 2021 the Council arranged for Mrs X’s care home fees to be paid by the Council, and later be recovered from Mrs X’s estate. It said it did so to avoid her eviction from the Care Home.
31. The Council made a further best interest decision for Mrs X in Autumn 2021, which found she should remain in residential care. However, a care home closer to her family should be found.
32. Mrs X has since moved to a care home nearer to Ms C and her granddaughter.

Ms C’s complaint

33. Ms C complained to the Council in Summer 2021. She disagreed with the Council’s findings on Mrs X’s capacity and said it:
• wrongly placed Mrs X in a care home without properly considering her best interest, the least restrictive option and the views of the family;
• fabricated her views in its best interest decision and failed to give her evidence how it reached its decision, and recorded another person’s name and information in part of the decision;
• failed to consult her in relation to a Deprivation of Liberty Safeguards assessment; and
• failed to tell her, or Mrs X, she had to pay for her care.
34. In response the Council acknowledged it had recorded another person’s name in the best interest decision document. It explained this was a human error and had not impacted its decision. It apologised and corrected the error. However, it did not uphold other parts of Ms C’s complaint, and explained:
• its best interest decision considered and set out the views of Mrs X, Ms C, Mrs X’s granddaughter, and professionals;
• it considered the options available to Mrs X, including returning home which was Ms C’s preferred option;
• no assessment of DoLS had taken place by the time Mrs X left the Care Home;
• it had sent financial information and leaflet to Ms C regarding Mrs X’s care costs and COVID-19 funding in 2020; and
• it acknowledged Ms C disagreed with its view but suggested she applied or continue to apply to the Court of Protection for deputyship to manage Mrs X’s finances.
35. The Council also said to prevent incorrect details being recorded, it had arranged for its social worker and manager to review Information Governance training and practice standards. It Social worker was also reminded to review paperwork before completion, and this would be supervised by a manager.
36. Ms C asked the Ombudsman to consider her complaint as she was not satisfied with the Council’s responses. She also said she disagreed Mrs X did not have capacity and shared a doctor’s letter. The letter said Mrs X did not have capacity to make financial decision.

Analysis

37. Ms C complained about matters which occurred more than 12 months before she brought it to our attention. Her complaint is therefore late. However, I have decided to exercise my discretion to consider her complaint from Autumn 2020 when the Council made its best interest decision on behalf of Mrs X. This is because Ms C said she did not receive a copy of this until 2021, she was therefore not aware of some of the content in the decision until then.

Best interest decision

38. Ms C said it was her view Mrs X should have been in domiciliary care with enough support to meet her needs, as this was the least restrictive option, and it was appropriate for her. She said the Council:
• failed to consider her views;
• made errors and fabricated her views in its best interest decision; and
• failed to follow Mental Capacity Act procedures as Mrs X’s capacity was not assumed.
39. The Council agreed it had made an error as its best interest decision included another person’s name in one part of the document. It said this was a human error and did not impact its decision.
40. The best interest decision record shows the Council considered Ms C’s, Mrs X’s and Mrs X’s granddaughters view before it reached its decision. It also considered the two options available to her, which included for Mrs X to receive domiciliary care.
41. It is clear Ms C accepted Mrs X was placed in residential care temporarily, but she preferred for Mrs X to be in domiciliary care in the long term. When she received a copy of the Council’s best interest decision, she said she found her views had been fabricated.
42. I cannot say what was said between Ms C and the Council’s social worker during the period of the best interest decision. I cannot therefore make a finding on this part of her complaint. However, the evidence shows the Council did consider the benefits and risks of the options available to Mrs X, which included 24-hour domiciliary care.
43. The Council reached the view it was in Mrs X’s best interest to be in 24-hour residential care based on her needs and lack of capacity at the time even though this was not the least restrictive. As there is no evidence of fault in the process the Council followed, it reached a view it was entitled to make, and I cannot therefore criticise the merits of its decision.
44. I acknowledge Ms C believes Mrs X had capacity to make or give her authority to manage her finances in 2020, and she shared an NHS doctors letter as evidence of this. However, the letter said Mrs X could not make decisions about her finances as she had a memory impairment, and her confusion was ongoing despite the treatment. I have therefore not seen enough evidence the Council’s decision was flawed or failed to follow the Mental Health Act procedures.

Deprivation of Liberty

45. Ms C said the Council failed to consider her view regarding a DoLS assessment. She said she wanted Mrs X to be allowed to leave the Care Home when she wanted to. However, I understand the Council did not make a decision to restrict Mrs X’s liberty as her case was not considered urgent. This meant it did not seek further views from Ms C or others in this process.
46. As the Council did not make a DoLS decision, it was not at fault for failing to consider Ms C’s views.

Cost of care

47. Ms C said the Council had failed to properly inform her and Mrs X about the cost of Mrs X’s residential care.
48. The Council shared financial information and leaflets with Ms C in Autumn 2020 when her COVID-19 care funding ended. It also recommended for her to apply to the Court of Protection for deputyship to manage Mrs X’s finances. Both Ms C and the Council where aware Mrs X would be a self-funder of her care, but no financial assessment was completed as neither had access to her finances.
49. Ms C told the Council she had applied to the Court of Protection for the deputyship and bridging finance.
50. When Mrs X’s bridging finance from the Court of Protection ended in late 2020, the Council and the Care Home contacted Ms C regarding the payments of Mrs X’s care fees. However, I understand Ms C still did not have deputyship and could not arrange for payment of the fees due to delays in the Court of Protection application process, or decision process.
51. Ms C again told the Council about her intention to bring Mrs X home to receive domiciliary a care and said she had planned for this. The Council asked her to provide more information about the support she had planned.
52. It is clear the Council struggled to get the information it needed from Ms C regarding her deputyship application and the domiciliary care she had planned for Mrs X. It was therefore not clear to it how Mrs X would pay for the care costs either in the Care Home or domiciliary care. So, in summer 2021, it arranged to pay for Mrs X’s care costs and for the cost to be recovered from her estate. It told Mrs X and Ms C of its decision.
53. I found the Council had informed Mrs X and Ms C about the costs of her care. This is because Ms C was aware Mrs X was a self-funder. The Council told her when her COVID-19 and Court of Protection bridging funding ended, and it shared information about paying for care costs and suggested she spoke with its finance team. It also worked with the Care Home and arranged for the payment of Mrs X’s care costs to prevent her eviction from the Care Home.
54. I acknowledge Ms C still preferred for Mrs X to receive domiciliary care. However, due to the delays with her application to the Court of Protection, this was not a decision she could make.

Complaints handling

55. Ms C was not satisfied with the Council’s response to her complaint, partly because it did not comment on her concerns that part of the best interest decision was fabricated by its social worker.
56. While, it may have been good practice for the Council to comment on Ms C’s allegation against the social worker, it is not fault by the Council for not agreeing with Ms C’s views or concerns. The Council’s complaint response acknowledged its error in including another person’s name in the document and explained how it had reached its decision. It also explained how it had provided her with financial information about paying for the cost of Mrs X’s care.
57. I have therefore not found the Council at fault for how its handled Ms C’s complaint.

Back to top

Final decision

58. There was not enough evidence of fault by the Council, it is on this basis I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman