Summary: Mrs D complains about the domiciliary care provided to her mother. There was fault which has caused distress and time and trouble to Mrs D. To remedy this, the Council has agreed to apologise, and make a payment and service improvements.

The complaint

1. Mrs D complains about the quality of domiciliary care provided to her mother by Holistic Care on behalf of the Council, causing distress to her mother and herself; and about the way the Council dealt with her complaint, causing her time and trouble.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
4. We normally name care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care provider. (Local Government Act 1974, section 34H(8), as amended)
5. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (Local Government Act 1974, section 26A or 34C)
6. 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)

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How I considered this complaint

7. I spoke to Mrs D about the complaint and considered the information she sent, the Council’s response to my enquiries and the Care and Support Statutory Guidance (“the Guidance”).
8. Mrs D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Care and support assessments and plans

9. The Care Act 2014 requires 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.
10. The Guidance says the assessment must involve the individual and where suitable their carer or any other person they might want involved. (Care & Support Guidance, para 6.9)
11. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan. The plan should be proportionate to the needs to be met, and should reflect the person’s wishes, preferences and aspirations. The council must take all reasonable steps to agree the plan with the person it is for.
12. If the plan cannot be agreed with the person, or any other person involved, the council may need to go back to earlier elements of the planning process. If a dispute still remains, it should direct the person to the complaints’ procedure. An adult with care and support needs may choose to refuse to have an assessment or decline support.
13. Councils should keep care and support plans under review. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget.

Mental capacity

14. At the time of the assessment of care and support needs, the council must establish whether the person has the capacity to take part in the assessment. The Mental Capacity Act 2005 says councils must presume that an adult has the capacity to make a decision until there is a reason to suspect that capacity is in some way compromised.
15. If a council thinks a person may lack capacity to make a decision or a plan, it should carry out a capacity assessment. For example, it may assess whether the person has the capacity to decide whether family members should be involved in their care planning. (Care & Support Guidance, para 10.63) If it find the person lacks capacity to decide, it should make a best interest decision (as set out in the Mental Capacity Act) about who should be involved.
16. If the person lacks capacity, the local authority must involve a person with lasting power of attorney (LPA) for property and financial affairs if there is one. Unless the person says otherwise, the attorney may make all decisions about the person’s property and finance even when the person still has capacity to make those decisions. The LPA must be registered with the Office of the Public Guardian before the attorney can make decisions for the person.
17. Councils must arrange an independent advocate to facilitate the involvement of a person in their assessment and preparation of their care and support plan if the person would have substantial difficulty in being fully involved otherwise and there is no appropriate individual to represent the person’s wishes.
18. If there is a conflict about whether a person has capacity to make a decision, or about what is in the person’s best interest, an application can be made to the Court of Protection. The Court of Protection may appoint a deputy to make decisions for people lacking capacity to make those decisions.

Council complaint procedure

19. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
20. The Council says it does not have a procedure for adult social care complaints. Its corporate complaints policy says complaints may be made by a person representing the complainant and it would “usually require your consent for them to act on your behalf.” It is a two-stage process and the Council aims to respond within 20 working days at the first stage.

What happened

21. Mrs D’s mother, Mrs F, has Alzheimer’s and is diabetic. At the time of the complaint, she was living at home on her own. Mrs F has two children, Mrs D and Mr J, who are estranged from each other but are both involved with Mrs F’s care.
22. In August 2021, Mr J contacted the Council seeking care and support for Mrs F. In a subsequent telephone assessment, he said he lived nearby, was the main carer and shopped for Mrs F each week. He would be going away for about a week.
23. The care and support plan of 4 August 2021 says Mrs F has Alzheimer’s and is diabetic. It says she would require two 30-minute visits a day to prompt with medication and getting dressed, to “leave lunch (a sandwich) prepared” and to “warm up a ready-meal” for the evening. There would also be a one-hour, weekly visit for shopping, to be reviewed when Mr J returned. The assessment says Mrs F and Mrs J had been involved. There was no reference to Mrs D.
24. A care agency, Holistic care, was commissioned and started to visit on 11 August 2021. On 18 August, Mrs D’s husband called the agency to cancel the care package as it was unnecessary. The agency cancelled its visits but the Council asked them to reinstate the care the next day. Three visits were missed. In response to my draft decision, Mrs D said they cancelled as Mr J had commissioned another agency which visited instead.
25. On 20 August, the Council told the agency it had no record of another next of kin and asked the agency to check the details. It advised the agency not to make any changes to the care package unless it had confirmed this with the Council. I have seen no evidence the agency or the Council clarified the next of kin records or spoke to Mrs F about Mrs D’s involvement.
26. The agency asked the Council to add an extra visit at bedtime as Mrs D had told them she had to call Mrs F to remind her to take medication then. On 9 September 2021 the Council told the agency a third visit was not necessary as Mrs D could continue to remind Mrs F.
27. The agency’s care plan was signed by Mrs F. It said she had fluctuating capacity and the weekly one-hour visit would now be for cleaning rather than shopping. It is unclear whether it was agreed that Mr J would shop for Mrs F.
28. Mrs D says there was insufficient food in the house so she set up a weekly online food shop and delivery. The care and support plan or assessment do not say how this was being paid for or record whether there were any doubts about Mrs F’s capacity to decide who could spend her money. It was around this time that Mrs D applied for Mrs F to have a LPA.
29. Mrs D and her husband were in frequent contact with the agency and would often call Mrs F when the carers were there. Although they often visited Mrs F, they did not live close by, so would call the agency to check on her care or report concerns, including:
• carers arriving late;
• lack of food in the house;
• insufficient or inappropriate food being offered, causing Mrs F to decline the food;
• meals not being made and Mrs F not having eaten. Mrs D said Mrs F had gone 72 hours without a hot meal and sometimes had gone 24 hours without eating.
30. They also expressed concerns about some of the care staff and asked for them not to visit. Mrs D would sometimes cancel visits as she would be visiting Mrs F or would be taking Mrs F to stay with her.
31. In November 2021, the agency noted that Mrs F would sometimes refuse care or meals and would be dressed before carers arrived. In December 2021 it asked the Council if the evening call could be extended to 45 minutes to allow for a meal to be cooked. I have seen no response to this request or any review of Mrs F’s needs.
32. The agency reviewed its care plan in January 2022 and found no changes were needed.
33. The Council reviewed Mrs F’s care and support plan in March 2022. I have not seen the review but no changes were made to the care package. In response to the draft decision, Mrs D sent a mental capacity assessment that was carried out in March. This found that Mrs F did not have capacity to make decisions about her finances although it does not refer to Mrs D’s role in shopping. It says Mr J would apply for deputyship.
34. Mrs D raised further concerns about Mrs F’s care in April 2022, including about the cleanliness of the bathroom, bleach bottles being left open, out of date food and milk in the house and shopping going missing. The agency advised the Council there were difficulties in its relationship with Mrs D and her husband and asked for a meeting.
35. Mrs D was registered as LPA for property and finance in May 2022.
36. That month, a neighbour found Mrs F wandering at night. Mr J could not be contacted so the neighbour had spoken to Mrs D. Mrs D attempted to call the police but, as she was not in the area, she could not get through to the right team. Mrs D called the agency’s out of hours number but had no response. The next day the agency advised it would not have been able to send carers or provide Mr J’s address to Mrs D. It said it would alert the Council. I have seen no evidence a safeguarding alert was raised or of any review of Mrs F’s care and support needs, though the Council said a door sensor should be ordered.
37. On 19 May 2022, the Council advised the agency not to communicate with Mrs D as “there was no formal written agreement from Mrs F that she wished Mrs D to be involved with her care.”
38. Mrs D continued to raise concerns with the agency, including that medication had been missed and the key had not been left in the key safe. On 3 June 2022 she wrote to Mrs F’s GP about her concerns. She said she was applying to the Court of Protection as there had been an objection to the application for Mrs D to have LPA for health and welfare. A mental capacity assessment for this had been recently cancelled by Mr J.
39. The Council allocated a social worker to Mrs F in June 2022 to try to resolve Mrs D’s concerns. The social worker spoke to Mrs D and reviewed the agency’s care records. The Council says it received Mrs D’s letter to the GP on 23 June. It emailed the agency about it and added Mrs D to its record of contacts for Mrs F.
40. Mrs F fell and went into hospital. The social worker spoke to Mrs D about her concerns, explaining that the agency had not been commissioned to cook meals. The Council says it offered to meet with Mrs D and the agency.
41. When she was discharged in mid July 2022 extra visits (four visits a day totalling 2.5 hours) were put in place. It was agreed that Mrs D would shop for Mrs F. A new bed and a commode were installed downstairs.
42. Mrs D says Mrs F would forget the commode was downstairs and would go upstairs to use the bathroom. A handrail on the stairs was loose, so it was not felt safe and a stairgate was installed. Mrs D says the stairgate was left in place after the handrail was fixed, which caused confusion and distress for Mrs F as she tried to remove it.
43. Mrs F’s condition had deteriorated and there were incidents of incontinence and confusion and Mrs F was often refusing care. The social worker visited Mrs F on 5 August 2022. She emailed Mrs D and Mr J noting that Mrs F did not have capacity to make decisions about her care and support. The situation would be monitored and if she struggled the Council would assess whether she required 24-hour care. The Council appointed an independent advocate for Mrs F due to the dispute between Mrs D and Mr J. I have not seen any mental capacity assessment.
44. Mrs D’s husband spoke to the rehabilitation team about their complaint. As a result, the social worker emailed Mrs D on 10 August 2022. She said she had reviewed the records and could not say that Mrs F had not had a hot meal for 72 hours.
45. The agency then gave notice as it could not meet Mrs D and her husband’s expectations nor had capacity to manage the frequent contact with them. The Council asked the agency to continue to provide the care until a new agency was found.
46. Mrs D made a formal complaint to the Council on 15 August 2022.

Events after Mrs D complained

47. Mrs D privately commissioned another agency to provide Mrs F’s care (two visits totalling two hours a day). She informed the agency, but as they had been advised by the Council not to cancel Mrs F’s care package unless confirmed by the Council, they continued to visit.
48. The social worker spoke to both agencies and noted Mrs F’s care plan was for four visits per day. On 12 September, the Council commissioned the second agency to provide three visits per day totalling 2.5 hours.
49. Mrs F moved into a care home in 2023. In March 2023 the Court of Protection ordered a panel deputy be appointed to manage Mrs F’s finances.

The Council’s response to Mrs D’s complaint

50. The Council replied to the complaint on 25 October 2022. It said it could not respond fully as she was not Mrs F’s deputy and Mrs F was unable to consent to Mrs D representing her. It said it had investigated under the adult social care complaints procedure but in response to my enquiries the Council said it had dealt with Mrs D’s complaint under its corporate complaints’ procedure.
51. The Council told Mrs D it had explored her concerns about the standard of care with the agency at the time and had provided proportionate responses. It had tried to support Mrs F and work in partnership with Mrs D and the agency. Mrs F’s condition had deteriorated after she was discharged from hospital and the agency had struggled to meet her increased needs, but “there had been a very positive move back upstairs”. There had been some confusion about care being provided after Mrs D had commissioned the second agency. It said Mrs D could make further comments within the next 20 working days, otherwise it would consider that she was satisfied with the response.
52. Mrs D came to the Ombudsman in March 2023.

My findings

53. My investigation covers the period August 2021 to August 2022, when Mrs D formally complained to the Council.
54. Mrs D complained about the standard of care provided to Mrs F by the agency. In particular she was concerned about Mrs F’s nutritional needs not being met. She says the Council and agency ignored her concerns and did not investigate them properly.
55. The evidence I have seen shows there were incidents of carers arriving late and out of date food being left in the fridge. This fault. Although the carers were not commissioned to clean at every visit, I consider out of date food should be disposed of as it could cause a risk of harm to the service user. Arriving late also meant that on occasion Mrs F had not eaten for a long period.
56. Mrs F sometimes declined care, meals and medication. Mrs D says she was offered inappropriate or insufficient food but the agency was not commissioned to cook meals and I have seen no evidence of fault in the way food and care was offered.
57. However, given the concerns Mrs D was raising, I consider the Council should have reviewed Mrs F’s care and support needs to ensure her nutritional needs were being met and to consider if she needed more support with meals. I note that in December 2021 the agency asked for a longer evening visit to prepare a meal but have seen no response to this from the Council.
58. There were a number of times when the Council could have reviewed Mrs F’s needs and support but I have seen no evidence it did so:
• Six weeks after the start of care package (i.e. by October 2021).
• December 2021, when the agency asked to extend the evening call to allow for cooking a meal.
• May 2022, when the agency asked for a meeting with the Council to discuss Mrs D’s concerns.
• May 2022, when Mrs F was found wandering.
• Early August 2022, when the Council said it would review the care package if Mrs F did not “settle”.
59. I find it was fault not to review Mrs F’s care and support needs and the care and support plan prior to March 2022. In particular, not reviewing them by October 2021 has caused injustice to Mrs D, which I discuss further in paragraph 74.
60. Whilst there is no evidence the lack of reviews caused significant injustice to Mrs F, there is some uncertainty about whether they may have found she needed more support with meals.
61. Overall, I have seen no evidence of poor quality care by the agency, other than the late visits and non-disposal of out of date food.
62. I find there was fault in the way the Council considered Mrs F’s mental capacity to make decisions about her care.
63. The initial care and support assessment in August 2021 does not say whether Mrs F had capacity to agree to the care, despite the Council being aware that she had Alzheimer’s. Whilst the Mental Capacity Act says capacity must be assumed unless established otherwise, it would have been helpful to have recorded whether there were any doubts about her capacity.
64. The assessment indicates the Council spoke to Mrs F on the phone and she agreed with the care package. I accept that the Council was putting care in place urgently as Mr J was going to be away, but I consider it would have been good practice to have reviewed the package on his return and spoken to Mrs F face to face, given her Alzheimer’s.
65. If the Council has any doubts about Mrs F’s capacity, there should be a mental capacity assessment. An independent advocate was appointed in August 2022, an application had been made to the Court of Protection for a deputy and the social worker considered Mrs F did not have capacity on 5 August 2022, but I have seen no evidence of an assessment in August 2022. This is fault.
66. The lack of clarity about whether there were any doubts about Mrs F’s capacity has caused difficulties in two areas – the management of her finances and Mrs D’s involvement in Mrs F’s care.
67. In relation to Mrs F’s finances, it is unclear whether there were doubts she had capacity to decide who could spend money on her behalf. Assuming she had, the August 2021 assessment should have recorded what had been agreed with her about how the shopping was being paid for and by whom. This may have prevented some of the later concerns about possible financial abuse.
68. If Mrs F had not had capacity to decide about her finances, the Guidance says the Council would have to ensure there was a person with legal authority to manage them. But there is no evidence this was considered, which could have put her finances at risk.
69. In relation to Mrs D’s involvement, the Council told the agency in May 2022 not to communicate with her as there was “no formal written agreement from Mrs F that she wished Mrs D to be involved.” This was fault because there is no requirement for there to be a formal written agreement. And, if there was, I have seen no evidence of such an agreement about Mr J’s involvement.
70. The Guidance says people may develop their care and support plan with “whoever they may wish to involve” and “any other person that the adult requests.” (Care and Support Guidance paras 10.33 & 10.45) This means that the Council should have established from the outset whether Mrs F wanted Mrs D to be involved in her care and support planning.
71. The evidence shows that the Council was aware of Mrs D by 9 September 2021 as it advised the agency that Mrs D could continue to remind Mrs F to take medication. It had also previously asked the agency to clarify the next of kin with Mr J, although it is unclear if that happened. But I have seen no evidence the Council asked Mrs F at any point whether she wanted Mrs D or Mr J to be involved. The care and support assessment was requested by Mr J, which is in line with the Guidance, but the assessment does not record whether Mrs F wanted him or Mrs D to be involved in her care. This is fault.
72. If Mrs F had agreed, then Mrs D had a right to contact the agency and the Council. Although she would not have had a right to cancel or change Mrs F’s care package, as this had been commissioned by the Council following a care and support assessment. The way to change this was through a request to review Mrs F’s needs.
73. If the Council had doubts about Mrs F’s capacity to make a decision about Mrs D’s involvement, it should have assessed her and made a best interest decision.
74. The Council missed an opportunity to clarify the situation in autumn 2021 as it did not review Mrs F’s care and support plan after six weeks. Doing so, and discussing finances, may have revealed that Mrs D had applied for LPA.
75. I do not consider that this fault caused injustice to Mrs F, but it has caused distress to Mrs D who has felt ignored and excluded by the Council and resulted in the Council being unclear about Mrs D’s role.

Complaint handling

76. Mrs D initially wrote to Mrs F’s GP about her concerns. She copied this letter to the Council who say they received it on 23 June 2021. My view is it should have been registered as a formal complaint then.
77. It was not, but the Council asked a social worker to try to resolve the concerns. The social worker liaised with the agency and with Mrs D in an attempt to do so, but there is no written record of the outcome of her investigations. Whilst this may not be fault, it would have been good practice for the Council to have written to Mrs D in August 2021 explaining how it had dealt with her concerns. This may have meant she did not need to make a formal complaint.
78. The Council’s formal complaint response was sent about four weeks after its corporate complaint procedure target, which is fault. The Council apologised for the delay, which I consider to be a proportionate and appropriate remedy for any injustice caused.
79. There was confusion about which complaint procedure the Council was using. Its response letter refers to the adult social care procedure, but the Council now says it was using the corporate procedure. The corporate procedure is two stages, but there is no evidence Mrs D was advised of this and given the option to escalate the complaint.
80. In addition, the social care complaint regulations say councils should have a clear procedure for adult social care complaints, but the Council says it does not have one. This is fault as the Council has not explained why it is deviating from the regulations.
81. The Council said it was unable to respond fully to Mrs D’s complaint as she was not a deputy nor had LPA and Mrs F did not have capacity to consent to Mrs D being her representative. This is fault. The Council’s corporate complaints procedure says it “usually” requires consent. This rightly gives it discretion to consider complaints from people who have no capacity to consent. It would not be right if only people with deputies or LPA were able to complain.
82. But the Council did not consider whether to exercise discretion or whether to accept a complaint from Mrs D in Mrs F’s best interest. This is fault.
83. My view is the Council has wrongly conflated Mrs D’s lack of entitlement to see Mrs F’s personal data, with her right to represent Mrs F in a complaint. The fact that Mrs D is not entitled to see Mrs F’s personal data should not prevent a complaint investigation. But the complaint response does not set out whether Mrs D’s concerns about the care had been upheld.
84. I therefore find fault in the way the Council dealt with Mrs D’s complaint causing her time and trouble as she has had to come to the Ombudsman.
85. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might.
86. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended.

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Agreed action

87. Within a month of my final decision, the Council has agreed to:
1. Apologise to Mrs D and pay her £100 to remedy the distress and time and trouble caused by fault.
2. Remind staff involved with complaints that the Council is able to use discretion when considering whether to accept a complaint from a representative of a person who cannot consent.
88. Within three months of my final decision, the Council has agreed to develop a procedure for dealing with adult social care complaints, which should include how its complaints process interacts with those of commissioned care providers.
89. The Council should provide us with evidence it has complied with the above actions.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman