Summary: Mr X complains the Council failed to deal properly with the arrangements for his mother’s care when she left hospital, resulting in a failure to involve him properly in the decision-making process. The Council failed to follow the Mental Capacity Act 2005 when assessing his mother’s needs. This left Mr X feeling the Council had not properly involved him in the process. The Council needs to apologise and take action to improve its services.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council failed to deal properly with the arrangements for his mother’s care when she left hospital, resulting in a failure to involve him properly in the decision-making process.

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The Ombudsman’s role and powers

2. 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)
3. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, sections 30(1B) and 34H(i), as amended)

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What I have and have not investigated

4. I have investigated the actions of the Council. I have not investigated the action of the hospital, as they fall within the remit of the Parliamentary and Health Service Ombudsman. Mr X has already complained to the hospital.

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How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Mr X;
• discussed the complaint with Mr X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Mr X and the Council, for me to consider before making my final decision.

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What I found

What happened

6. Mr X’s mother, Mrs Y, has dementia (diagnosed in January 2023). Mr X has power of attorney for his mother’s property and affairs. He lives in another part of the country.
7. Having carried out assessments in March under the mental Capacity Act 2005, the Council decided Mrs Y lacked the capacity to make decisions about how and where her care needs should be met. In April 2023 she was living at home with a small package of care. Concerns were raised about increased confusion, after Mrs Y visited her chemist four times in a day. When the Council called Mr X on 5 April, he accused it of bullying him. The Council said a call from him may help to reassure his mother. Mr X said it had not sent him a copy of his mother’s mental capacity assessment, nor had it completed a checklist for NHS Continuing Healthcare. Mr X made a formal complaint the following day.
8. Mrs Y went into hospital on 7 April 2023 after falling while getting out of a car. The next day the hospital assessed Mrs Y’s mental capacity to decide where she should live when discharged from hospital. It found she did not have the capacity do so. It went onto decide it was in her best interest to go to an EMI (elderly mentally impaired) residential care home. The best interest decision did not consider any other less restrictive options. The hospital also completed a fact-finding assessment referring Mrs Y to the Council. The form identified her as suitable for a complex assessment within a nursing home, under the NHS discharge pathways. It said Mr X had been looking for a long-term placement and agreed his mother needed an EMI placement in a residential care home.
9. On 9 April the Council completed a checklist for NHS Continuing Healthcare. It did not identify the need for a full assessment for Continuing Healthcare. The Council accepts Mr X’s claim that it used an out-of-date form (from 2018), having been revised in 2022. The Council says the changes made in 2022 were to the order of items on the form, rather than the substance of the contents or the scoring criteria. It says using the 2018 form made no difference to the outcome.
10. On 11 April Mr X asked the Council for information about respite care, which he said the hospital had suggested. The Council advised him to speak to the Ward Manager “to determine needs and possible respite due to fall”. According to the Council’s records, it received the 8 April referral from the hospital on 11 April. The Council then started looking for a placement for Mrs Y. Its records say no reablement beds (a placement where someone can relearn the skill needed to live independently) were available at 11 care homes. It was waiting for a response from two other care homes.
11. On 17 April the Council contacted the other two care homes. One said it had received no paperwork and the other said it had been told the bed was no longer needed and had therefore been turned down on 14 April. After receiving the paperwork, the first home said it could meet Mrs Y’s needs, subject to doing an assessment over the telephone.
12. On 18 April Mr X told the Council his mother was not back to her baseline (i.e. could not do everything she had been able to do before going into hospital). He said he wanted her to return home with a package of care, if that could happen safely. The Council said it would visit Mrs Y to assess her needs.
13. The Council visited Mrs Y on 19 April to assess her needs under the Care Act 2014. She said she wanted to return home and did not need any care or support. However, the assessment said she had eligible care needs over:
• Managing and maintaining nutrition – as she needed help with food preparation.
• Maintaining personal hygiene – as she needed help showering and washing, and needed prompting and help with mouth care.
• Being appropriately clothed – as she could not pick weather appropriate clothes, she needed prompting and supervision getting dressed.
14. The assessment also said Mrs Y:
• was a high risk from falls;
• needed help prompting medication;
• had wandered day and night;
• was a self-funder (i.e. had enough money to pay for her own care).
15. The assessment said the Council would signpost the family to find a short-term EMI residential care home, so a long-term decision could be made when she was back in the community.
16. The assessment said a mental capacity assessment had been done on 16 April, but this appears to have been a mistake. The Council actually assessed Mrs Y’s mental capacity to make decisions about her care and support needs, when it visited her on 19 April. It decided she did not have the mental capacity to do so. It wrote up the assessment on 21 April.
17. On 20 April the Council sent the hospital’s fact finding and mental health assessments to a care home Mr X had identified. It asked it to confirm the charges and an admission date if it could meet Mrs Y’s needs. Mr X complained to the Council about the failure to fund respite care while his mother recovered her baseline abilities, noting she had a limp she had not had before going into hospital. Mr X also pointed out the documents said he said his mother had to go into residential care, but that was not the case. The Council asked Mr X if he agreed his mother needed to move to an EMI residential placement when she left hospital. Mr X said “no”, as he wanted her to have care in her own home, but the hospital had said residential care was the only option.
18. The Council has provided a record of a best interests decision meeting dated 21 April. The purpose of the meeting was to decide how Mrs Y’s care needs should be met. It says Mr X was involved in the meeting along with two nurses from the hospital and a social worker. It says Mrs Y wanted to return home and Mr X also wanted her to go home. It says the two nurses and the social worker agreed Mrs Y should move to an EMI residential care home. However, the record goes on to say Mr X previously wanted his mother to return home but following various assessments which said it was unsafe for her to do so, he was now in agreement with a discharge to an EMI residential placement as the safest alternative, until a permanent solution could be identified. The record of the meeting identified the benefits and burdens of returning home and residential care. The decision was to discharge Mrs Y to a short-term EMI residential care home, where her long-term needs could be assessed. Mr X says the Council did not involve him in this meeting and the record of the meeting does not reflect his views.
19. The Council e-mailed Mr X on 21 April to let him know the result of the assessment and the recommendation for his mother to go to an EMI residential care home. Its records noted that he had previously wanted his mother to return home with a package of care, but it had “been deemed unsafe for her to return home”. It said everyone agreed a move to an EMI residential care home would be safest until they agreed a permanent solution. Mr X’s preferred care home told the Council it could meet Mrs Y’s needs.
20. The Council’s records say Mrs Y’s discharge from hospital to the care home was confirmed for 24 April. However, the move was delayed and she left hospital on 26 April. At Mr X’s request, she has since moved to another residential care home, where she remains.
21. The Council says it held a best interests meeting on 25 April to decide where Mrs Y should go when she left hospital, but there is no evidence of this in its records.
22. During April Mr X made several complaints about the Council’s handling of the arrangements for his mother’s care when she left hospital. When the Council replied to his complaints in May, it said:
• It had now sent him a copy of his mother’s mental capacity assessment in a format he could access and apologised for the delay.
• It was sorry if he felt telephone calls had been bullying, but that had not been the intention. It had reminded staff of the need to communicate professionally.
• It apologised if Mr X believed information in its assessment of Mrs Y’s needs was out-of-date. It had only included information available to it at the time.
23. In a separate letter, the Council said:
• “The procedure for discharge from hospital is the completion of the fact-finding assessment (FFA) by health practitioners. This assessment is undertaken as part of a multi-disciplinary approach with the patient at the heart of the assessment and family member involvement. The FFA identifies the discharge pathway and is a health document which social care are guided by for discharge planning.”
• “Whilst we do have the ability to question the discharge decision, in this case it was not deemed safe for your mother to return home. From the FFA it has been reported that the multi-disciplinary team were in agreement for discharge to an EMI residential placement would be the safest alternative until a permanent solution could be decided on.”
• Mrs Y’s social worker had altered some wording in the assessment which Mr X had not been happy with. However, the decision by health was based solely on their medical opinion and the Council would have had no influence over the medical decision that Mrs Y was not safe to go home and needed a placement in a care home. It had advised Mr X to complain to the hospital about the content of the FFA and its decision that Mrs Y was not safe to return home.
• It did not offer respite care on discharge from hospital. It could offer free reablement care for up to six weeks, to help people relearn how to do daily activities, but Mrs Y’s FFA and assessment documents did not identify reablement needs so she did not meet the criteria.
24. Mr X accepts residential care was the right result for his mother. He also accepts she is unlikely to qualify for NHS Continuing Healthcare.

Legal and administrative background

25. 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.
26. A key principle of the Act 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.
27. 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.

Is there evidence of fault by the Council which caused injustice?

28. Under the Care Act 2014, it is for the Council to decide how people’s social care needs should be met, in consultation with other interested parties, including: the individual themselves; family or professional advocates; and health professionals. However, when responding to Mr X’s complaint the Council implied it was bound by the hospital’s decision that Mrs Y needed to go to an EMI residential care home. That was fault by the Council which resulted in a flawed decision-making process. It left Mr X feeling the Council had not properly involved him in the process.
29. There was no formal best interests meeting on 21 April, neither in person nor virtual. It appears the Council relied on pre-existing information when recording the views set out in the record of the “meeting”, including Mr X’s views, including those contained in the hospital’s FFA, which Mr X has disputed with the hospital.
30. The Council told Mr X it did not assess his mother as needing reablement care when she left hospital. Neither the hospital’s FFA nor the Council’s Care Act assessment refer to reablement potential. If the hospital had assessed Mrs Y for rehabilitation, it would have assigned her to a different discharge pathway. However, the Council’s case notes say it was looking for a reablement bed. There is nothing to explain why it was doing that. After assessing Mrs Y’s needs the Council stopped looking for a reablement bed. While this reflects some confusion, the fact Mrs Y has remained in residential care suggests she had no significant potential for reablement.

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Agreed action

31. The Council has agreed to take action to remedy the injustice it has caused:
• Within four weeks it will write to Mr X apologising for:
1. the failure to follow the principles of the Mental Capacity Act when deciding how his mother’s care needs should be met, including the failure to give proper regard to his view that she should return home with a package of care;
2. misrepresenting the status of the fact-finding assessment; and
3. its poor record keeping of the best interest decision making process;
• Within eight weeks it will identify the action it will take to ensure the relevant parties are properly informed when contributing to best interest decisions, and to ensure that reasons for best interests decisions are recorded, especially when the decision is disputed.
32. The Council should provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation on the basis there has been fault by the Council causing injustice which requires a remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman