Date of decision: 06 April 2026
Summary
This report concerns an elderly man who went into a care home for a short, self-funded respite stay, but remained there for longer and incurred extra fees because his family believed he was not free to leave once a Deprivation of Liberty Safeguards (DoLS) authorisation was in place.
The Council failed to give timely, clear information that, once his family had a Lasting Power of Attorney, they could lawfully take him home and arrange care, which left them with avoidable uncertainty about whether he needed to stay and keep paying for residential care. The Ombudsman found fault in the Council’s communication and recommended an apology and a financial payment to recognise the uncertainty caused.
What happened
In early February 2024, the man, Mr Y, voluntarily entered a care home for respite care for a planned five‑week period following a fall at home, and he understood he would be paying for this care himself. Around early March 2024, near the end of this agreed stay, the care home requested a Deprivation of Liberty Safeguards (DoLS) assessment from the Council, and Mr Y remained at the care home while that process was underway. When the five‑week period ended in mid‑March 2024, Mr Y asked to leave the care home and return home.
In mid‑March 2024, the care home emailed the Council explaining that Mr Y’s family were concerned he would try to go back home if DoLS was not put in place. In late March 2024, the Council completed the DoLS assessment and concluded Mr Y lacked capacity to make decisions about his accommodation, taking account of his family’s views on where he should live. The DoLS paperwork recorded that Mr Y was not free to leave the care home, but also expressly noted that going home was a feasible and realistic option that should be considered by those making decisions about his care.
In mid‑April 2024, Mr Y’s family obtained a Lasting Power of Attorney (LPA) and received copies of the Council’s assessments, which they disputed, including the assessment outcomes and details. Later, in late April 2024, the Council emailed the family explaining that a Strengths and Needs assessment to look at Mr Y’s care needs could take several months.
In early May 2024, the Council emailed Mr Y’s daughter, confirming that, because the family now held an LPA, they could make decisions for him, including taking him home, and said there was nothing to stop them from doing so even with a DoLS authorisation in place.
Mr Y’s daughter replied that the family had been told Mr Y could not return home and that they had paperwork stating he was not free to leave the premises. The Council then sent a further email in early May 2024, reiterating that, because of the LPA, the family were legally able to take Mr Y home and arrange a suitable care package. The Council’s email recorded that Mr Y’s daughter had indicated she preferred to wait for the local Social Services Team to support them in setting up arrangements, and also stated that if the family felt the process was taking too long they could arrange private care.
The family ultimately arranged for Mr Y to return home in mid‑June 2024. In mid‑August 2024, the Council completed its Strengths and Needs assessment, concluding that Mr Y was not eligible for funded services. At that point, the Council also emailed his daughter explaining that it had referred Mr Y’s assessment to a senior team to approve and authorise the respite costs for the period between March and June 2024.
In early September 2024, the Council emailed Mr Y’s daughter again, stating that DoLS authorisation only legalised restraining or preventing someone from leaving as part of their care, and did not prevent a person from terminating their placement or moving out. The Council said Mr Y therefore had the opportunity to leave the care home at any point. In response, also in early September, Mr Y’s daughter told the Council that, before the LPA, the family had never been advised that he could leave the care home and that, in fact, they had been told the opposite. The family then made a formal complaint in late September 2024 about what had happened and the additional charges incurred.
The Council’s mid‑October 2024 complaint response said it could not refund the care home costs Mr Y had paid. Dissatisfied, the family complained again in late October 2024, saying the response implied they knew Mr Y could leave the care home, which they disputed. In mid‑November 2024, the Council responded again, maintaining that Mr Y could have left the care home.
In mid‑December 2024, the family made a further complaint, explaining that Mr Y had wanted to leave the care home in March 2024 but was told he could not, and that they had never been told what the DoLS assessment actually meant in practice, leading to him staying longer than necessary. In mid‑January 2025, the Council issued its final complaint response, saying Mr Y would have been free to leave the care home under family supervision and that it had discussed options with the family in early May 2024.
What happened
In its analysis, the Ombudsman noted that Mr Y’s original entry into the care home was voluntary for a defined five‑week period and that he understood he was paying for this care. When DoLS was granted after the care home’s application, the Council’s own paperwork told the family that Mr Y was not free to leave his accommodation, and they reasonably believed this meant he had to remain there. The Council later accepted that, once the LPA was in place, the family could have taken Mr Y home, but the Ombudsman found no evidence the Council told them this clearly before early May 2024.
The Ombudsman found that failing to give this information sooner was fault by the Council and left the family feeling that, had they known earlier, Mr Y might not have incurred the care costs he did. However, an email from the time confirmed that, after the Council told the family in early May 2024 they could take Mr Y home, they chose not to do so for more than a month because they wanted to wait for Council‑arranged care, so the Ombudsman could not say the outcome would certainly have been different if they had been told earlier.
The Ombudsman found the Council at fault for not giving Mr Y’s family clear, timely information about their ability once they held a Lasting Power of Attorney, to remove him from the care home and arrange care at home, even with a DoLS authorisation in place. This failure meant the family reasonably believed the DoLS paperwork, stating Mr Y was not free to leave, prevented him from going home, which caused significant uncertainty about whether his extended stay and resulting care home costs were necessary. The Ombudsman also noted that, once the Council did explain their options in early May 2024, the family chose to wait for the Council to arrange support rather than immediately taking Mr Y home, so the exact financial impact of the earlier communication failure could not be definitively quantified.
To remedy the injustice, the Ombudsman recommended that, within four weeks of the final decision, the Council write to Mr X (the son and complainant) to apologise for the uncertainty caused and pay him £400 to recognise that injustice. The Ombudsman further required the Council, in writing, to remind relevant staff that they must give families and representatives clear information about a person’s accommodation options when individuals are under DoLS, so that people are not left believing they are trapped in placements unnecessarily. There was no order to refund the care home fees, but the upheld complaint and remedy focused on the communication failures and resulting uncertainty and distress.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This report states that ‘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.’
Mr Y was asking to leave the care home from March 2024 before the LPA was obtained. It seems the family supported the DoLS at that point as they stated that they were concerned he would try to go back home if DoLs was not in place. The report suggests that a DoLS authorisation was put in place before the family obtained the LPA.
If the family held the LPA before the DoLs authorisation was put in place, and were at that point objecting to the placement, then the ‘No Refusals’ criteria would not have been met, and the DoLS could not have proceeded. This might not have helped the family though, who apparently wanted to ensure that care arrangements were made by the Council before Mr Y went home. In any event, Mr Y was clearly objecting to the placement and his Relevant Person’s Representative (RPR) could and arguably should have challenged his deprivation of liberty at the care home on his behalf. Mr Y’s RPR was probably a family member, and they might have been reluctant to mount a challenge in the absence of suitable care arrangements being in place at home. We think, though, that a challenge might have speeded up and resulted in scrutiny of the Council’s decision making on care.
The Council ultimately decided that Mr Y was not eligible for funded services. The report does not give any detail about the reason for this decision, which could itself have been the subject of a public law challenge, but it is in any event separate to the DoLS issue.
The events in this report took place before the decision in ‘A Reference by the Attorney General for Northern Ireland’ which held that the acid test set out in Cheshire West for deciding whether a person was deprived of their liberty was just wrong. At the time of the events in this report, however, we would expect the professionals to have considered that Mr Y would require a ‘Community DoLS’ for the care arrangements at home, even if he did not object to them.
Following the Supreme Court’s decision in the Northern Ireland case, the position on the ground has changed. The Supreme Court held that a person without mental capacity to make decisions about their residence and care arrangements can give subjective consent to what would otherwise be a deprivation of liberty, so as to take their circumstances out of Article 5 ECHR. This decision was only handed down on 2nd June 2026, and it is too early to say for certain what the effect on ‘Community DoLS’ will be, but it seems likely that a DoLS authorisation for Mr Y’s care arrangements at home would not now be required. We expect that new Government Guidance will now be issued.
From a policy and practice perspective, this decision illustrates the gap that can open up between a narrow Ombudsman focus on communication fault and the broader duties that community care law says should guide councils’ handling of liberty, home life and cost.
For busy practitioners and managers, the action‑focused takeaway is that whenever DoLS, capacity and accommodation decisions intersect, staff should check at each key stage: who currently has legal authority to decide on residence, whether the least restrictive option (usually return home with support) has been properly explained and considered, and whether any delay in assessment or planning is leaving the individual effectively “trapped” in a setting they no longer wish to be in, at their own expense, without a clear, lawful justification. There was absolutely no justification for a delay of several months. We are shocked that the investigator said nothing about that delay at all.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s West Sussex County Council (25 002 286) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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