Summary: Mrs Y complained the Council failed to take appropriate action when she reported an increase in her aunt, Mrs X’s social care needs and said the Council failed to respond to her. We find fault by the Council. This caused significant stress to Mrs Y and Mrs X. We make several recommendations to address the injustice caused by fault.

The complaint

1. The complainant, Mrs Y, complains on behalf of her aunt, Mrs X. She said the Council have:

• Failed to take appropriate action when she reported an increase in Mrs X’s social care needs.
• Failed to respond to her emails and voicemails when she raised serious concerns for Mrs X.

2. As a result of the Council’s actions Mrs Y said Mrs X did not receive sufficient care.

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. 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

5. I spoke with Mrs Y about her complaint. I considered any documents provided by Mrs Y and the Council.
6. Mrs Y and the Council had an opportunity to comment on my draft decision. I considered their comments before making my final decision.

Back to top

What I found

What should have happened?

Assessment

7. 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.
8. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

Care Plan

9. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
10. The guidance says plans can be reviewed in three ways: a planned review; an unplanned review (usually due to a change in circumstances); and a requested review (when the person or another party asks for a review).
11. If there is any information or evidence that suggests that circumstances have changed in a way that may affect the efficacy, appropriateness or content of the plan, then the local authority should immediately conduct a review to ascertain whether the plan requires revision. For example this could be where a carer is no longer able to provide the same level of care, there is evidence of a deterioration of the person’s physical or mental wellbeing or the local authority receives a safeguarding alert. During the review process, the person the plan is intended for, or the person acting on their behalf should be kept fully involved and informed of what is occurring, the timescales involved and any likely consequences. This will help to alleviate anxiety at a time where things in the person’s life may have changed substantially.

Mental Capacity Act

12. 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.
13. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

14. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
15. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

16. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
17. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

What did happen?

18. This section sets out the key events in this case and is not intended to be a detailed chronology.
19. Following a fall, Mrs X was discharged from hospital to a care home in September 2021 for a period of assessment.
20. An occupation therapy assessment completed in November 2021 said the ready to transfer form from the hospital stated Mrs X lacked capacity and noted she suffered from memory loss. The Council said Mrs X presented some memory loss but otherwise presented well in terms of her cognition. It was also noted the previous care agency reported no concerns for Mrs X’s understanding or confusion.
21. A care needs assessment completed the following month said Mrs X wanted to return home and the Council had completed a home visit to ascertain what equipment would be needed.
22. A care and support plan completed in November 2021 said a single handled package of care three times a day was needed to support Mrs X with her personal care, nutrition and managing her home and a telecare system would reduce risks.
23. The Council spoke with Mrs X in the same month. It explained Mrs X would be living downstairs on her return to her house and discussed the times the care workers would attend. Due to previous concerns around Mrs X’s blood sugar levels, staff at the care home confirmed Mrs X had been reviewed by the GP and confirmed her blood sugar levels and level of understanding had gone back to normal.
24. Mrs X returned home in February 2022. The care package provided support with personal care, making food/drinks, switching the cooker off, laundry and ensuring Mrs X wore her lifeline pendant.
25. In March 2022 the care agency requested the morning care call time be increased as it had taken longer to get Mrs X ready due to mobility issues. The Council completed a care and support plan review with Mrs X at home. It said further laundry and toilet needs had been identified. It agreed to increase the care. The increase in care was to commence on 4 May 2022.
26. The care agency reported further concerns for Mrs X between March and April 2022 as she had been trying to cook and was burning food. The care agency suggested Mrs X may need 24-hour care. It said Mrs X was found in the front garden with faeces down her legs. It said there were also feaces inside the house and Mrs X did not know how it got there.
27. Between March and June 2022 the Council contacted Mrs X’s GP about the care agency’s concerns and made a referral to the fire service who completed a safe and well check at Mrs X’s address.
28. Mrs Y started raising concerns about Mrs X’s ability to cope at home before she was discharged from hospital. She contacted the Council between March and June 2022 to make further concerns. These concerns included confused conversations, unexplained falls, unsuccessful attempts to prepare food, unexplained cuts to her legs and concerns about the monitoring of Mrs X’s diabetes.
29. The Council tried to contact Mrs X about completing a financial assessment. It said it was unclear who managed her finances. The Council discussed completing a financial assessment with Mrs Y in April 2022. It asked Mrs Y for a charging letter to be completed as it could not move forward with any care increase until completed. It was agreed the next review would be brought forward.
30. Mrs Y complained to the Council the following day. She said Mrs X had previously been assessed in hospital as no longer having the capacity to make decisions as to where she could live long term. She said this decision was later changed by the Council despite her expressing serious concerns for Mrs X. She said the Council had failed to respond to her concerns.
31. The Council contacted Mrs X’s niece, Mrs Z, in June 2022 to discuss arranging to see Mrs X. Mrs Z expressed concerns for Mrs X who had been found in the street near her home and did not know why she was there. She said the cooker had been disconnected as Mrs X had started multiple fires but was now using the sandwich maker inappropriately. She said Mrs X had injuries to her legs and feet and was no longer using her lifeline pendant.
32. In the same month the Council completed a mental capacity assessment for Mrs X. It said when Mrs X was previously in hospital, the team discussed with Mrs Y that Mrs X was showing signs of dementia. But it said this was undiagnosed and the GP had referred her to a memory clinic. It said the Council would look at placing Mrs X in a residential respite care home for four weeks so her long term care needs could be assessed.
33. The Council completed a review with Mrs X at home in June 2022. It was noted Mrs X’s confusion and memory loss had progressed since the last review.
34. In the same month Mrs Y told the Council Mrs X had fallen at home. The care worker had found her and called an ambulance. Mrs X was taken to hospital.
35. The Council responded to Mrs Y’s complaint in June 2022. It apologised and said her emails had not been received due to an error on its system. It said a council officer would be working with Mrs X to see how her needs could be met.
36. Mrs X was discharged from hospital to a care home in July 2022.

Analysis

37. The Council did not complete a mental capacity assessment with Mrs X before she was discharged home. But the Council met with Mrs X and said she was able to clearly express her wants, needs and wishes. It was also noted Mrs X could understand and retain the information in relation to how and where her assessed care and support needs would be best met and communicate where she wanted to live. The Council also spoke to the care agency who had previously supported Mrs X, who reported no concerns around her level of understanding or confusion. I am satisfied the Council considered the relevant information and fluctuating capacity when making its decision about Mrs X’s capacity at the time of discharge.
38. The occupational therapy assessment completed in November 2021 noted Mrs Y and Mrs Z hold Power of Attorney for Mrs X’s finances. The Council aborted the financial assessment in March 2022. It had tried to contact Mrs X and it said it was unclear who managed Mrs X’s finances. It then discussed finances with Mrs Y in April 2022 and asked her to complete a charging letter. It said without this it could not move forward with any care increases. This is fault. I am satisfied the Council was aware in November 2021 that Mrs Y held Power of Attorney for Mrs X’s finances. If the Council had contacted Mrs Y about this in March, the charging letter could have been completed sooner. But this did not lead to an injustice as Mrs X did not go without care as the care workers provided care covering the additional time.
39. The care agency told the Council in March 2022 it needed more time to support Mrs X due to mobility issues. The Council reviewed Mrs X’s care and support plan in the same month. It agreed to provide extra time for the morning care call. There is no fault in the action the Council took in increasing the care plan in response to a review.
40. The care agency reported further concerns for Mrs X after the March 2022 review. It said she may need 24-hour care. Mrs Y also reported numerous concerns to the Council between March 2022 and June 2022. The Council said due to a fault on its system it did not receive four of the seven emails Mrs Y sent it. This was fault. This caused frustration and significant stress to Mrs Y at a time she was raising serious concerns for Mrs X and not receiving any response. Mrs Y spent unnecessary time and trouble in repeatedly contacting the Council.
41. The Council did contact the fire service and Mrs X’s GP to report concerns about Mrs X’s ability to remain at home. The care plan stated Mrs X’s next planned review was 30 May 2022. The Council agreed in April 2022 to bring the next review forward. But the review did not take place until 10 June 2022. This was fault. The council were aware that there was increasing risk with Mrs X remaining at home. The delay in holding the review created injustice because Mrs X’s health had deteriorated in this time, and she was not receiving safe and proper care. This caused distress to Mrs. Y who was raising concerns about the urgency of the situation.

Back to top

Agreed action

42. To address the injustice caused by fault, within one month of my final decision the Council should:

• Apologise to Mrs Y and Mrs X for the faults identified in this statement.
• Pay Mrs X £200 to acknowledge the distress caused by not reviewing her care needs sooner.
• Pay Mrs Y £150 to acknowledge the distress caused by the Council not responding to her concerns raised for Mrs X.

43. Within two months of my final decision the Council should:

• Remind relevant staff of the Care and Support Statutory guidance which says plans can be reviewed in three ways: a planned review; an unplanned review (usually due to a change in circumstances); and a requested review (when the person or another party asks for a review).

44. The Council should also provide evidence that it has followed the recommendations.

Back to top

Final decision

45. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman