Summary: There is no fault by the Council in the way it assessed Mrs Y prior to her return home from hospital. An assessment of Mrs Y’s capacity at the time concluded she was able to decide about returning home. The Council acted in accordance with the law.

The complaint

1. Mrs X complains the Council failed to properly assess her mother, Mrs Y’s capacity to understand the risks of returning home after a hospital admission in January 2019.

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

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How I considered this complaint

4. I have:

• considered the complaint and discussed it with Mrs X;
• considered the correspondence between Mrs X and the Council, including the Council’s response to the complaint;
• made enquiries of the Council, and considered the responses;
• taken account of relevant legislation;
• offered Mrs X and the Council an opportunity to comment on a draft of this document.

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What I found

Relevant legislation

5. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual 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.
6. 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. 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.
7. There are five principles which underpin the Act
8. Principle 1: A presumption of capacity. ...
9. Principle 2: Individuals being supported to make their own decisions. ...
10. Principle 3: Unwise decisions. ...
11. Principle 4: Best interests. ...
12. Principle 5: Less restrictive option.
13. People cannot be assumed to lack capacity because of age, appearance, condition or behavior.
14. People should receive support to help them make their own decisions. Before concluding that someone lacks capacity to make a particular decision, it is important to take all possible steps to try to help them reach a decision (principle 2).
15. People have the right to make decisions that others might think are unwise and should not automatically be labelled as lacking the capacity to decide (principle 3).
16. A council must assess someone’s ability to decide, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.

What happened

17. Mrs Y has dementia. Prior to her admission to hospital and residential care she lived in her own home and received a care package of two calls daily.
18. In the latter part of 2018, Mr & Mrs X began having concerns about Mrs Y’s ability to manage at home. A neighbour often reported Mrs Y to be in the street at 5am. The neighbour escorted her back home and informed Mrs X.
19. On 31 December 2018 Mrs Y telephoned Mr X at 6.45am to say she was at the police station and needed collecting. After discussion Mr X realised Mrs Y was at home and appeared to be hallucinating. He called Mrs X at work. Mrs X contacted the GP. The GP visited the same morning and admitted Mrs Y to hospital.
20. The hospital arranged for Mrs Y to be discharged to a residential care home on on 1 January 2019 for intermediate care. Intermediate care is a type of short-term care that aims to help people be as independent as possible. It can be provided in a community hospital, care home or a person’s own home. Intermediate care is free for a maximum of 6 weeks.
21. On 3 January 2019, the care home contacted the Council to ask that Mrs Y be allocated a social worker to assess her ongoing needs. The Council allocated a social worker the next day.
22. The Council’s records show the social worker contacted Mrs X on 15 January 2019 to arrange an assessment of Mrs Y’s needs. A date of 24 January 2019 was agreed.
23. The social worker visited Mrs Y at the care home on 24 January 2019. Mrs X was present. The social worker recorded, “…in my opinion [Mrs Y] has capacity to make her own decisions around accommodation and support, and expressed a wish to go home. Assessment indicates that a return to home, with current care package, is recommended”. Mrs X expressed her concerns about Mrs Y returning home. Mrs X believed Mrs Y needed 24-hour residential care. The social worker noted this but did not agree. The social worker concluded Mrs Y should return home on 27 January 2019 with domiciliary services reinstated and the addition of assistive technology.
24. Mrs X says the social worker did not take account of her concerns or properly consider Mrs Y’s capacity to understand the risks. At the time Mrs X agreed to escort Mrs Y home.
25. On 26 January 2019 Mrs X’s husband left the social worker a message asking her to call him back. The social worker telephoned Mr X the same day. Mr X said Mrs Y was unable to return home and the family had viewed a residential home with a view to placing Mrs Y on a permanent basis. The social contacted the care home Mrs Y was staying under intermediate care. The manager confirmed Mrs X had said she wanted Mrs Y to go into permanent residential care, but Mrs Y was asking to go home. Mrs Y’s planned discharge home was cancelled.
26. Mr X telephoned the social worker on 27 January 2019 again saying the family disagreed with the assessment that Mrs Y was able to return home. He said Mrs Y would be at risk. The notes show the social worker explained she believed Mrs Y had capacity to decide where she wanted to live, and that any placement in care home would need to be funded privately.
27. On 11 February 2019 the social worker visited Mrs Y to assess her capacity to “…understand the benefits of assistive technology and consent to the referral”. The social worker visited twice, at different times of the day. The assessment is detailed and takes account of Mrs physical health and cognitive impairment. The outcome concluded Mrs Y was able to “…communicate verbally and make decisions around her care and support and accommodation needs… [Mrs Y] clearly expressed she wishes to return home and not go into a care home…”.
28. Mrs X says the social worker did not inform her about the visit or about the assessment. Mrs X would like to have been present.
29. Mrs Y returned to her own home on 5 March 2019 with domiciliary services and telecare in place. In the 19 days that followed Mrs X says Mrs Y had 16 incidents. The Council files show six recorded incidents on, 8, 14, 15, 21, 26 & 28 March 2019. At midnight on the 8 March 2019, telecare was alerted that the sensor’s on Mrs Y’s front door had been activated. An officer from telecare visited to ensure Mrs Y’s safety.
30. The social worker visited Mrs Y the following day to assess Mrs Y’s wellbeing. The social worker recorded Mrs Y was switching off the fridge and heating. She recorded Mrs Y had some insight into her memory loss, and that she did not want to go into a care home. Later in the day the social worker spoke to Mrs X and recorded her anxiety about the telecare call-out. The social worker also contacted Mrs Y’s son to discuss “how things were going”.
31. The social worker telephoned the community mental health team on 12 March 2019, to make a referral for Mrs Y. She was told no one was available to take the referral. She was told ‘someone’ would return her call.
32. On 14 March 2019, the records show Mrs Y’s daughter-in-law contacted the Council to report Mrs Y seemed more confused and that a neighbour had found her in the street. The social worker telephoned Mrs Y and said she would like to request a visit from a GP. Mrs Y agreed. A GP visited and prescribed Mrs Y antibiotics for a chest infection.
33. The social worker visited Mrs Y the following day. The family reported a difficult night and that it appeared Mrs Y had taken medication wrongly. Mrs Y had insight into her chest condition. She said her family wanted her to go into a care home and she wanted to continue to live in her own home. The social worker had a discussion with a carer who was present. A decision was taken to ‘hide’ the medication from Mrs Y and carers would administer it as prescribed. Other measures were taken to prevent Mrs Y switching off the heating the fridge and heating. The social worker concluded Mrs Y “is safe to continue living in her own home at present and this is being reviewed regular. The risks have been identified and interventions in place to reduce those risks”.
34. The records show the social worker had contact with Mrs Y and the carers on 20, 21, 26 March 2019. On 28 March 2019 a carer contacted the social worker to says Mrs Y had been found sat on the floor in state of distress. Mrs X was informed and visited. She believed Mrs Y had fallen down the stairs and may have been on the floor some time. Mrs Y was admitted to hospital. She had broken her wrist and ankle.
35. Mrs Y’s son-in law contacted the social worker on 5 April 2019 to say the family held the social worker and her manager responsible for Mrs Y falling down the stairs, that the home care package was unsuitable and Mrs Y should have been placed in residential care as they advised previously. He wanted reassurance that the social worker would place Mrs Y in residential care on discharge from hospital. The social worker said Mrs Y would have her needs reassessed before discharge from hospital until then a decision could not be made.
36. The social worker kept in contact with the hospital during Mrs Y’s stay.
37. Mrs X submitted a formal complaint to the Council on 5th April 2019 about the actions of the social worker. She asked that a different social worker be allocated.
38. On 9 April 2019 the Council allocated a different social worker to Mrs Y. The social worker contacted the family the same day to introduce himself.
39. Towards the end of Mrs Y’s stay in hospital it was planned that she would be discharged from hospital to a care home under intermediate care for a period of assessment. Mrs X agreed. Mrs Y was declined an intermediate care bed because she no longer met the criteria. Subsequently the social worker undertook an assessment of Mrs Y’s capacity to decide her care arrangements and where she live on the ward on 17 April 2019. Mr & Mrs X were present. Mrs Y was not orientated to time or place. She lacked insight into her care needs and lacked capacity to decide where she should live.
40. A Best Interest decision was taken to arrange a temporary residential placement until the plaster casts were removed from Mrs Y’s arm and ankle. A review of Mrs Y’s future care needs would be done at that point. Mr & Mrs X agreed. Mrs Y was discharged back to the care home on 18 April 2019 on a short term basis.
41. The social worker completed an assessment of Mrs Y’s care needs. Mrs Y told the social worker she wanted to return home, but she did not think it would be possible because of poor memory and the pain from her fractured wrist and ankle.
42. Mrs X reiterated her wish for Mrs Y to go into permanent residential care and said this should have happened sooner, that Mrs Y should not have returned home after the last temporary stay at the care home, however “ she was aware that at that point , her mother was deemed to have capacity and this was not her wish” .
43. The social worker completed an assessment of Mrs Y’s capacity to understand her care needs and decide where she should live. He concluded, “although her registration was good ,she could not retain even very simple items for more than a few seconds . As a result, she lacks capacity to make decisions relating to accommodation or care arrangements. [Mrs Y] identified that she was happy to go into 24 hour care as this is what [Mrs X], Dtr and LPOA in Health and Wellbeing , wants . Agreed to seek a 24 hour care placement”.
44. The Council completed Deprivation of Liberty Order (DOLS) on 2 May 2019.
45. On 13 May 2019, Mr & Mrs X told the social worker they had chosen a care home. Mrs Y was transferred to the care home on 14 May 2019.
46. The social worker conducted a six-week review meeting on 19 July 2019. Mrs Y was reported to be happy and settled.

Mrs X’s complaint to the Council

47. Mrs X submitted a formal complaint to the Council on 5th April 2019. The Council acknowledged the complaint and told Mrs X she would receive a reply by 16 May 2019.
48. Mrs X did not receive a response to her complaint by the deadline date. Mr X chased the Council for a response on 20 May 2019. Mrs X received a response from a team manager on 22 May 2019. The officer did not uphold the complaint, and said the social worker had assessed Mrs Y appropriately and Mrs Y had made a capacitated decision to return home. The officer confirmed a new social worker had been allocated to Mrs Y, as per Mrs X’s request.
49. Mrs X says the response did not address all the points raised so she telephoned the Council and asked it to reconsider the complaint.
50. The Council says it deemed the manager an appropriate person to investigate the complaint and prepare a response. Because of Mr & Mrs X’s dissatisfaction with the complaint response, the complaint, and the response was passed to a senior officer for review.
51. A senior officer reviewed the complaint and concluded the initial complaint response to be poor and issued a ‘more robust’ response to Mr & Mrs X on 13 June 2019.
52. In the June response the officer acknowledged the family …” clearly had concerns about your mother and sought the best outcome for her, which in your view was an admission into a 24-hour care placement”. A view not shared by [Mrs Y]”, and whilst taking into account the family’s view, officers also had to take account of what Mrs Y wanted. The officer explained the law around the Mental Capacity Act and DOLS. The officer concluded the actions of the social worker were appropriate.
53. The officer apologised for the content of the initial complaint response saying the author of that letter “...acknowledged that due to pressures of work, on this occasion he had not taken enough time to consider all the records before ‘putting pen to paper’ and the haste in which the response was provided had led to some inaccuracies within its content. [The officer] has offered his sincere apologies for this”.
54. The Council says there have been lessons learned for the complaint. That all future complaint responses will require a ‘sign off’ from a service manager.

Analysis

55. It is not the Ombudsman’s role to say what a person’s needs are or what services they should receive. The Ombudsman’s role is to consider if the Council has followed the correct processes to assess a person’s needs. The Ombudsman cannot question the right or wrongs of a decision where the council has reached it properly.
56. I have considered the documents provided by the Council which included Mrs Y’s assessment and case records. I find no fault in the completion of the assessment. The social worker considered all relevant factors, including Mrs X’s concerns. She completed a mental capacity assessment and acted in accordance with the law. The outcome concluded Mrs Y had capacity to decide to return home. Whilst she may have been confused and frail this in itself does not evidence a lack of mental capacity to make a decision, even if the decision is deemed to be an unwise one.
57. The Ombudsman cannot question the merits of the decision itself without evidence of fault in the way it was made. I find no fault in the way the decision was made.
58. Mrs X disagreed with the decision. Her concerns were understandable, but the social worker could not allow this to supersede Mrs Y’s wishes. Had she done so; Mrs Y would have been unlawfully deprived of her liberty.
59. Mrs Y’s return home did not go smoothly. This must have been difficult for Mrs X and reinforced her concerns. The records I have seen show the social worker responded appropriately on each occasion she was alerted to an incident. The social worker was not responsible for the incidents, there was an element of risk in Mrs Y returning home, a risk she was entitled to take. The social worker kept Mrs Y’s wellbeing under review. I find no fault by the Council here.
60. Unfortunately, Mrs Y had a fall which resulted in broken bones. She was readmitted to hospital. Following a complaint by Mrs X a different social worker was allocated. The social worker concluded Mrs Y needed residential care, by this point Mrs Y appeared to acknowledge this herself. A fresh assessment concluded Mrs Y lacked insight into her care needs and decide where she should live. This does not mean previous assessments were wrong. Capacity can fluctuate; for example, a person’s ability to make a decision about something now may not be the same in a few weeks’ time.
61. To summarise, I have seen no evidence of fault to support the claim that the Council failed to properly assess Mrs Y’s needs and capacity to understand the risks of returning home after a hospital admission in January 2019.The Council acted in accordance with the Mental Capacity Act 2005.
62. In relation to how the Council handled Mr & Mrs X’s complaint. The Council acknowledges it’s first complaint response could have been better. It has apologised for this and made changes to its complaints procedure as a result. This is a suitable remedy. The Council provided Mr & Mrs X with a more detailed response to her complaint. There is no outstanding injustice to Mr & Mrs X

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Final decision

63. There is no evidence of fault. The Council properly assessed Mrs Y’s capacity to return home after a hospital stay in January 2019. It adhered to the principles of the Mental Capacity Act 2005.
64. The Council acknowledges it could have provided a more detailed first response to Mrs X’s complaint. The Council has apologised for this and explained the learning from it. I consider this appropriate remedy and there is no outstanding injustice to Mrs X.
65. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman