The Local Government and Social Care Ombudsman (the Ombudsman) has found Wokingham Borough Council (the council) at fault for how it handled and failed to prevent a care home closure.

Ms C, who was autistic, had lived at the care home for 16 years. A housing association owned the care home and Ms C’s care and support package was provided by a care provider, commissioned by the council. The council had hoped it would be able to change the service from a residential care home to a supported living service but not all the parties agreed.

In August 2021, the council rated the service as ‘red’ and prevented new residents from moving into the home, although improvements in the service meant that the home was rated ‘amber’ in June 2022 and new residents could move in – albeit with caution. This combined, with a series of challenges meant that vacancies remained unfilled and over time, the care provider was finding it increasingly difficult to be financially viable. 

In August 2022, the service provider gave notice it intended to stop delivering care to Ms C, with a further notice in December 2022 that it planned to close the home. Ms C and the other residents were notified in February 2023 that the home would be closing after 31 May 2023 and Ms C moved to a new service on 1 June 2023.

It soon became clear that the move was not successful for Ms C. She had complex needs and a settled routine at the previous care home. The new service did not have the same services and facilities to meet her needs and lacked a permanent bath, a fast internet connection, Sky TV and space for her piano. Family members had also raised concerns about safety related to the home’s lack of a locked door policy.

Fault causing injustice?

The Ombudsman concluded the council was at fault for how it handled the situation, for the following reasons:

• The council could have provided extra financial or staffing resources to help prevent the closure of Ms C’s original home;
• The council had failed to follow guidance on managing care home closures and its own Health and Wellbeing Care Governance Protocol;
• The council had failed to complete a detailed support plan for Ms C and a risk and compatibility assessment for her new home;
• The council had failed to produce an early transition plan for Ms C.

These criticisms are notable because the Ombudsman recognises it cannot say whether the original home would have remained open, had the council provided additional support. The decision also demonstrates the importance of the council’s overall duty to promote wellbeing – there is a reason this is the first duty laid out in the Care Act 2014 (section 1).

The Ombudsman has recommended that the council apologise, and complete a reassessment and detailed support plan for Ms C to transition to a new, permanent home. It has also been instructed to pay Ms C £1,500 for prolonged distress and anxiety plus a further £500 to Ms C’s family.

Lessons to learn

The decision comes at a time when commissioners are seeking to reduce their reliance on residential care packages, whilst the market is struggling to fulfil the demand for supported living schemes. It highlights the importance of collaborative working and shows that a punitive approach to commissioning may ultimately backfire where the outcome is detrimental to the individuals living in the scheme.

In this case, the original property has transitioned from a residential care home to a supported living scheme and there is a hope that Ms C may be able to return to the place that was her home for 16 years. Interestingly, the Ombudsman commented that the council’s duty to prevent the need for care and support (section 2 of the Care Act 2014) extended to a duty to consider whether it could have done more to prevent the closure of the original home. 

Both care providers and commissioners will be mindful that the public sector equality duty applies to publicly funded residential care. Consequently, decision-makers need to record they have taken steps to reduce inequalities if it is likely that people who share a protected characteristic may suffer a particular disadvantage as a result of the decision to close the home or significantly alter the service.

Local Authorities will want to take note of the reminders to:

• understand how different funding models affect the long-term viability of individual services and alternatives in the local market;
• fully consider the impact of the proposed change on the well-being of individuals supported by the service;
• consider and implement alternative measures to avoid negative impacts, potentially applying its own additional resources to prevent or delay needs escalating;
• communicate clearly and early with individuals impacted by the decision to change a service or close a home.

Providers that find themselves struggling with financial viability should:

• stress the importance of maintaining the well-being of the people supported;
• draw attention to the ways in which the commissioner can help rather than hinder improvements to the service (for the benefit of the people supported);
• act early to challenge restrictions on the service and new referrals;
• request prompt and regular meetings with key stakeholders, so that there is full transparency on timelines and next steps.

Managing quality issues and responding to enforcement action

Providers facing a potential closure will be trying to manage quality issues whilst also under enhanced scrutiny from the local authority and/or subject to enforcement action by the CQC. In those cases, providers should:

• ensure that a detailed action plan is in place with robust measures to address concerns, making clear where support from the local authority would be helpful;
• emphasise to both the local authority and the CQC the need for all stakeholders to work together to support the improvements being made – or in the case of closures, to facilitate smooth transfers to other services;
• challenge poor CQC inspection outcomes (for example, where providers have been rated inadequate and placed in special measures) since this is often a precursor to an embargo on new admissions from the Local Authority and/or a notice of proposal to cancel registration from the CQC;
• anticipate that the local authority and the CQC will communicate behind the scenes and use concerns raised by one organisation as an early warning that action may be taken by the other.

In cases where it is the CQC seeking to remove registration, it is important that providers manage the closure process carefully and seek support from the local authority. Situations where the local authority is slow to find alternative placements can be challenging because it is a criminal offence for providers to continue to provide care and support after their registration to do so has been cancelled. On the other hand, providers who stop providing care and support before other arrangements have been made for the people supported are often subject to very negative press.

In these situations, the answer can be an appeal to the First Tier Tribunal in relation to the CQC’s notice of proposal. This can buy providers some time to make sure alternative arrangements have been made for the people supported before the service closes. The appeals process can also be used to put pressure on the local authority to assist with the closure and find placements for the people supported. 

If you are facing the challenge of increasing financial pressures and considering whether to convert or close a service or would like support responding to concerns and challenging enforcement action from the CQC, contact us.