The Ombudsman's final decision
Summary: Mr Y complains about the Council’s decision to place his mother, Mrs C, in a residential care home. He says Mrs C would have benefited more from a package of care in the community, close to family. He says her condition has deteriorated in the Home. The Ombudsman does not find fault in how the Council managed decisions about Mrs C’s care.
The complaint
The complainant, who I refer to as Mr Y, complains the Council decided to place his mother in permanent residential care. He says his mother never wanted to go into a care home and would have been better supported with a community care package close to family. He says the Council did not properly involve him or take account of his and other family members’ views when making its decision.
Mr Y says the Council later agreed to consider a community care package. However, by this point her condition had deteriorated from living in the Home and she had become institutionalised. Therefore, the Council again refused to move her into a community placement.
The Ombudsman’s role and powers
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) 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) 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)
How I considered this complaint
I considered the information Mr Y provided and spoke to him about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mr Y and the Council for their comments before making a final decision.
What I found
Law and Guidance Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
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.
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. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
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.
Background
From 2019 to mid-2020 Mrs C lived with her daughter and received a domiciliary package of care. Before this Mrs C lived with Mr Y.
In April 2020 Mrs C went into a care home for respite care. During this stay staff raised concerns about her wellbeing. Mrs C was due to return home in early May 2020, but concerns were raised about whether her needs could be met at home. A social worker contacted the daughter and Mr Y. Mr Y asked for time to think about the best option. The social worker arranged an extension to the respite care in the interim.
In mid-May 2020 Mr Y contacted the Council and outlined that he did not believe Mrs C should remain in the care home on a permanent basis. He asked the Council to arrange for Mrs C to live at home with him, with a revised package of domiciliary support. A social worker arranged to conduct a new assessment of Mrs C’s needs.
The social worker carried out an initial virtual assessment with Mrs C, supported by the Home Manager, due to social distancing measures at the time. The social worker then contacted the family members and indicated that she believed Mrs C would require 24-hour residential care. There was disagreement about whether this was the best option between Mr Y and the daughter. Mr Y asked the Council to consider a housing option in the community where extra care was provided in the person’s own home, as an alternative to residential care. Mr Y said he had spoken to other family members, and all agreed this would be a suitable option for Mrs C.
Mr Y contacted the local authority in which the community care option was located. That local authority said that any move to the community care housing would need to be based on an assessment of needs by the Council. It would then consider transfer of care and any issues around ordinary residence.
The social worker completed a mental capacity assessment in early June 2020 and found Mrs C lacked capacity to make decisions about her living situation. The social worker also arranged for an occupational therapy (“OT”) assessment. In late June 2020, the OT found Mrs C was physically independent but raised concerns about her cognition and independence around things like toileting, taking medication and personal care. The assessment found Mrs C needed monitoring and supervision.
The social worker also engaged an independent mental capacity advocate (“IMCA”). In early August 2020, the IMCA informed the social worker that she found Mrs C was settled and happy in the current placement. The social worker noted that moving to a different placement may have a detrimental impact on Mrs C’s mental health. She also noted that Mrs C would wander at night. In the current placement staff could monitor this but that monitoring would not be in place in the community. The social worker then contacted Mr Y to inform him that she had made a best interest decision for Mrs C to remain at the Home.
The social worker completed their report in September 2020. It found Mrs C needed 24-hour residential care. It said she would remain in her current placement but with a view to exploring whether she could move into a care home closer to where Mr Y and other members of her family lived.
Mr Y complained about the assessment. He said it was biased and did not include a clear functional assessment of Mrs C. He said the assessment did not capture Mrs C’s history, her likes or preferences and questioned the involvement of the IMCA. Mr Y said the social worker had focussed on Mrs C’s limitations with a view to the need for 24-hour care, rather than exploring her strengths and how she could be supported in the community. He said it was never his mother’s wish to live in a care home.
The Council’s complaint response says the social worker involved Mrs C in the assessment and explored some focused areas of strengths and abilities. However, it could have further explored activities that would have benefited Mrs C in terms of her concentration and memory. It said it could not find evidence the assessed need for residential care was based on bias, but more options could have been explored earlier given the family network in the area where community support was requested. It said the social worker had consulted with Mr Y but there should have been more in-depth family representation within the assessment. It said the Council would allocate a social worker to re-assess Mrs C’s needs and consider the possibility of a less restrictive placement.
The new social worker began the assessment process in January 2021. She spoke to Mr Y and other family members and obtained information from the Home. An updated OT assessment was also completed. The social worker contacted an extra care housing provider close to family, for further information.
The assessment found Mrs C required support over a 24-hour period to maintain her assessed care and support needs. It set out Mrs C’s needs in detail and said that assessment would be sent to the extra care housing provider to establish if they could meet Mrs C’s needs going forward. In the meantime, Mrs C would continue to reside in the Home.
The Council sent a copy of the assessment to Mr Y and other family members in April 2021. It also sent the assessment to the extra care housing provider. There was delay on the part of the provider in attending the Home to assess Mrs C for a placement. The social worker regularly chased the provider. In mid-June 2021 the provider informed the social worker that it did not consider Mrs C was suitable for extra care living and recommended that it was in her best interest to continue to receive care at the Home.
Mrs C continued to be represented by an IMCA throughout the process. An updated IMCA report dated June 2021 which set out contact with Mr Y and that the IMCA had no concerns about Mrs C’s placement.
In July 2021 the extra care housing provider completed its report and informed Mr Y of its decision that Mrs C was not suitable for the service.
In October 2021 the Council held a meeting with Mrs C, her family members, IMCA and professionals involved in her care, to discuss and finalised her care plan. The minutes of the meeting say that Mr Y commented on the missed opportunity in the first assessment for Mrs C to be moved to a community placement. However, he agreed with the current, updated assessment. The review report says that all family members agreed for Mrs C to remain at the Home.
Findings
On balance, I do not find fault in how the Council managed the decisions about Mrs C’s accommodation.
There were issues with the initial assessment in May to September 2020. The Council spoke to Mrs C and obtained views from Mr Y. The assessment gave a brief account of why Mrs C may not have received the necessary level of support in extra care housing but did not provide a detailed analysis of why it would not meet her needs. The Council did not share its assessment with the extra care housing provider or ask it to assess whether Mrs C was suitable for the service. There was significant disagreement about the best course of action, so it may have been good practice to hold a formal best interest case conference, with Mr Y and other family members in attendance. Instead, the Council made a best interest decision based on limited contact with Mrs C and the family.
Based on that assessment alone, it is likely I would have found fault and recommended the Council carry out a new assessment. However, the Council addressed these issues in its complaint response and carried out a new assessment that was more detailed and clearly recorded the views of family members. It contacted the extra care housing provider, who assessed Mrs C and found she was not suitable for its service. There is no fault with the later assessment, and this suitably remedied the issues with the original one.
Mr Y is concerned that, by that point in time, Mrs C had become accustomed to living in a care home and more dependent of that level of care. Therefore, an opportunity was missed to move Mrs C to the community at an earlier point in time. When I spoke to Mr Y, he asked that the Council reconsider finding a community placement for Mrs C and repay money he considered had been wasted on a care home placement that was avoidable and unnecessary.
I cannot find that, had the Council’s first assessment been as in depth as the second, it would have likely placed Mrs C in a community setting in 2020. There is no indication in the assessments that Mrs C’s condition significantly deteriorated during the time between the two assessments. I can see from the second OT report that it noted some improvement in Mrs C’s physical ability but that she still needed a high level of support to maintain her needs. Therefore, I cannot see a strong likelihood the extra care housing provider would have reached a different decision had it assessed Mrs C in mid-2020.
Even if there was a strong chance it would have made a different decision, I would not have recommended the Council reimburse Mrs C for the fees paid. Mrs C received care at the Home that met her needs. This is a chargeable service and any questions over the level of financial contribution is a separate matter. I would only have recommended a new assessment going forward. A new assessment was completed and there was no fault with that assessment.
I will not recommend the Council review whether to place Mrs C in a community setting going forward. The Council received a clear response from Mr Y’s preferred provider that it was not a suitable placement for Mrs C. At the meeting in October 2021, all parties agreed that Mrs C should remain in the Home where her needs are met, and she is settled. I note the Council indicated it was open to finding a similar residential placement closer to Mr Y and other family members. However, it does not appear the family has pursued this alternative and any future decision on this point would need to be made having weighed up the best interests of Mrs C.
Final decision
I do not find fault in how the Council managed decisions about Mrs C’s care.
Investigator's decision on behalf of the Ombudsman