Summary: The Council was not at fault in the way it decided to discharge Mrs X into a care home.

The complaint

1. Mr A (as I shall call the complainant) says the Council forced his mother from her home and will not let her return despite her wish to do so. He says the Council has not addressed the repair problems in her home.

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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. 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, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

3. I considered the information provided by Mr A and the Council. We spoke to Mr A. Both parties had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

4. 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 themselves.
5. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt.
6. A key principle of the Mental Capacity Act 2005 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.
7. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
8. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.
9. The Mental Health Act 1983 sets out when an individual can by law be admitted, detained, and treated in hospital against their wishes.
10. A person can be detained in hospital under section 2 of the Act for an assessment to be carried out and for treatment after the assessment. A person can be kept in hospital under section 2 for a maximum of 28 days. Before the person is discharged, a social care assessment should take place to see if he or she has any social care needs the Council should meet.

What happened

11. Mrs X lived in a two-bed Housing Association property of which she was the sole tenant. She has a history of dementia and paranoia, and refusal to engage with mental health services. She has three adult children of whom Mr A intermittently stayed with her.
12. Mrs X’s GP referred her to the Community Mental Health Team in 2017. Her care co-ordinator visited her regularly and observed that Mrs X was in inadequate and unkempt clothing, was poorly nourished and her house was dirty. She refused the offer of a ‘blitz’ clean on two occasions. Sometimes she had no money to pay for food or heating and lighting and the house was cold as a result.
13. In February 2018 Mrs X was detained under section 2 of the Mental Health Act for assessment.
14. Mrs X’s care co-ordinator assessed Mrs X’s mental capacity on 9 March and concluded Mrs X lacked capacity to make her own decisions about her care and living arrangements. The record of the assessment shows Mrs X was unable to recall the conditions in which she lived or how the tenancy was arranged. She did not understand the consequences of a return home. The Council says Mr A was present at the assessment but did not contribute.
15. As a result of the capacity assessment the Council arranged a Best Interest decision meeting. Both Mrs X’s daughters attended the meeting and agreed with the Council’s view that Mrs X should be admitted to residential care.
16. Mrs X was discharged to a care home in April 2018, where her care was funded by the Council. The Council approved a DoLS authorisation for her. Her care plan says, “She lacks insight into her care and support needs. She has continuously denied having any problem with memory and refuses her diagnosis. She is at high risk of self neglect, financial abuse and deterioration in her mental and physical health if she was to live independently.”
17. As Mrs X lacked capacity to make decisions about her tenancy, the Council obtained an order from the Court of Protection in May 2019 to terminate her tenancy.
18. Mr A subsequently complained to the Council about the way in which his mother had been taken into care and was not allowed to return home. He said the decision to keep her in residential care and relinquish her tenancy had made him homeless.
19. The Council says Mrs X told the care co-ordinator her son had moved out of the tenancy two months before she was admitted to hospital.
20. Mr A says the Council never replied to his complaint, but the Council has provided a copy of its response to him in July 2019.
21. Mr A complained to the Ombudsman that the Council had forced his mother into the care home without the proper assessments and had failed to assist with her housing repair problems.

Analysis

22. The Council was not at fault in the way it carried out the relevant assessments of Mrs X’s mental capacity and reached its decisions.
23. The Council properly involved Mrs X’s family in the Best Interest decisions about her future care.
24. The Council obtained a Court order to terminate Mrs X’s tenancy. Mrs X was the sole tenant and the information she gave to the Council was that Mr A no longer lived with her.

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Final decision

25. The Council was not at fault in the way it acted in respect of Mrs X’s welfare.

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Parts of the complaint that I did not investigate

26. I have not investigated complaints about any necessary housing repairs as that is properly the remit of the Housing Ombudsman.

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Investigator's decision on behalf of the Ombudsman