Summary: We will not investigate Mr X’s complaint about the hairdressing charges incurred by his late mother Mrs X during her stay at a care home. The care provider did not fail in its duty of care to Mrs X by not preventing her having this service, because there is not enough evidence to show Mrs X did not have capacity to make decisions to spend her own money on the hairdressing she received.

The Ombudsman’s role and powers

3. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (Local Government Act 1974, section 26A or 34C)
4. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
5. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
6. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

0. the action has not caused injustice to the person who complained, or
1. it is unlikely further investigation will lead to a different outcome.

(Local Government Act 1974, sections 34B(8) and (9))

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How I considered this complaint

7. As part of my assessment I have:
• considered the complaint and the documents provided by Mr X;
• issued a draft decision inviting Mr X to reply, and considered his response.

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What I found

8. Mr X is the late Mrs X’s son and an executor of her estate. Mrs X lived in Radcliffe, a private care home, for about 4 years up to her death in 2020. Mr X says he and his brothers were astonished to discover after she died the care provider had charged her £8 per week for hairdressing. Mr X says before moving to the care home his mother only went to the hairdresser every four to six weeks.
9. The Mental Capacity Act 2005 (‘the 2005 Act’) says a person must be assumed to have capacity 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;
• before all practicable steps to help the person to do so have been taken without success.
10. Mr X says his late mother had a dementia diagnosis prior to going into the care home. He says she was very suggestible, would have agreed to almost anything, and would not have understood the hairdressing was costing her money.
11. A diagnosis of dementia does not mean a person lacks capacity to make any decisions about their life. By law, capacity assessment is done for each decision a person needs to make, on a case-by-case basis. For example, someone may have capacity to decide what to eat for a meal, but lack capacity to decide where they should live.
12. Mr X says Mrs X was assessed under a Deprivation of Liberty Safeguards (DOLS) process. He has provided some of that DOLS assessment. But this is not evidence Mrs X lacked capacity to decide to pay to have her hair dressed each week. Mrs X was not assessed during her time at the home as lacking capacity to make that specific decision. In the absence of such evidence, the care provider must assume Mrs X held that capacity, in line with the Act. The care provider’s reply to the complaint confirms it was satisfied Mrs X understood and was clear about her decision to have hairdressing weekly, contrary to Mr X’s view. It follows that I cannot say the care home failed in any duty of care to Mrs X by not preventing that service and its cost to her.
13. Mr X says it is absurd to expect a mental capacity assessment to foresee every conceivable type of decision Mrs X might need to make, and determine her capacity to make them. That scenario would be wholly impractical. That is why the Act requires capacity to be assumed, until such time as a specific decision becomes an issue. Then an assessment of capacity on that specific decision may be sought.
14. If Mr X was concerned Mrs X’s spending on hair care was having an unacceptable impact on her finances he, or another member of her family, could have raised the matter sooner. Then Mrs X’s capacity could have been assessed specifically on the issue of her hairdressing and its weekly costs. There would be no duty on the care provider to raise the issue of the hairdressing and report this to Mr X or another family member, as there were no reasons for them to have concerns about Mrs X’s capacity to make the specific relevant decisions.
15. Mr X says he could not have raised the hairdressing expenditure sooner because he was not aware of it until after Mrs X’s death. Mr X had instructed a firm of solicitors to act as Mrs X’s financial deputies because he says she was assessed as needing support to manage her money. It was Mr X’s decision not to be directly involved in giving Mrs X support with her finances, and to pass that role to solicitors during her time at the home.
16. I cannot say Mrs X lacked capacity to decide to spend £8 every week on hairdressing, even if Mr X now considers many of those decisions were unwise. There is not enough evidence Mrs X lacked the capacity to decide when she wanted her hair done, so we could not find the care home failed in any duty of care to Mrs X by allowing her to incur the £8 expense every week.
17. I also take into account that Mrs X chose to pay for a hairdressing service which she then received. There was no injustice to Mrs X caused by the care home in providing or enabling that service, and so no subsequent financial injustice to her estate.

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Final decision

18. We will not investigate this complaint. This is because there is not enough evidence the care home failed in any duty of care towards Mrs X by allowing her to spend her £8 per week on hairdressing.

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Investigator's decision on behalf of the Ombudsman