Summary: Mr and Mrs X complained the Council reduced their relative’s care package without fully reviewing her care and support plan. They say this left her without appropriate support for over five weeks which increased the risk of harm. They also complained the Council did not involve them in decisions about her care. The Council was at fault, but this did not cause Ms Y an injustice. It did not complete a full review of her care and support needs before reducing her care package. The Council has accepted it was at fault and has reinstated the original package. It has also accepted that future reviews should fully review the care and support plan and agreed to involve Mr and Mrs X in future decision-making. These are appropriate actions to improve the service it provides to Ms Y.

The complaint

1. Mr and Mrs X complained the Council reduced their relative, Ms Y’s, care package without completing a full review of her care plan. They say this left her without appropriate support for over five weeks, increasing her risk of harm. They also complained the Council had not involved them when making decisions about her care. Mr and Mrs X say they the Council did not consider all aspects of their complaint and wants to ensure reviews are completed appropriately in the future.

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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 read Mr and Mrs X’s complaint and discussed it over the phone with Mrs X.
5. I considered information provided to us by the Council and by Mr and Mrs X.
6. Mrs and Mrs X and the Council had the opportunity to comment on the draft decision. I considered their comments before making my final decision.

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What I found

Legal and administrative background

The Care Act 2014

7. The Care Act 2014 provides the legal framework for the assessment and provision of care and support for adults assessed by Councils as having eligible needs.
8. When a council identifies a person has eligible needs, it has a duty to meet them. It must set out how it plans to meet those needs in a care and support plan.

Mental capacity and lasting power of attorney

9. A person must be assumed to have capacity to make a decision unless it is established that he or she lacks capacity. A council must assess a person’s ability to make a decision, when that person’s capacity is in doubt. Assessments of capacity should be time and decision specific, reflecting the fact that people may lack capacity to make some decisions for themselves, but will have capacity to make other decisions.
10. The Mental Capacity Act 2005 introduced the Lasting Power of Attorney (LPA). This is a legal document which allows a people to choose one person (or several) to make decisions about their health or welfare and/or their finances and property, for when they become unable to do so themselves.

What happened

11. In 2019, Ms Y received care and support at home. She received eight care visits a day to meet her identified care and support needs. Mr and Mrs X had Lasting Power of Attorney for decisions about her health and welfare.
12. In June 2019, the Council reviewed Ms Y’s care package. Mr X was present at the review. It considered whether it could reduce the number of care visits and still meet Ms Y’s assessed needs. It decided to reduce her care package to seven visits a day, but to support this reduction, the district nurses agreed to increase their visits in the short term, to monitor any adverse impact on her skin integrity.
13. Later that month, Mr and Mrs X expressed concern the reduction in care package was negatively impacting on Ms Y’s health. The Council made referrals to health professionals for further assessment and sought advice from Ms Y’s GP. These assessments found no evidence of deterioration in Ms Y’s health.
14. Mr and Mrs X were unhappy with the decision to reduce the care package and complained to the Council. They said the Council had made the decision to reduce her care package without a full review of her care and support needs. They said this had put Ms Y’s health and welfare at risk. They asked the Council to re-instate the eighth care visit. They further complained:
• The Council was not involving them in decision making or keeping them informed of proposed changes;
• Council officers were visiting Ms Y without asking Mr and Mrs X to attend and this was causing Ms Y distress;
• Mrs Y did not have capacity to make decisions related to her health and welfare, so, as attorneys, the Council needed to involve them in all decision making and keep them informed of any decisions made.
15. In the middle of July, the Council reinstated the eighth daily care visit.
16. The Council investigated and partially upheld Mr and Mrs X’s complaint. The investigation found that when making the decision to reduce the care package, discussion had revolved around predominant themes rather than a full review of Ms Y’s support plan. Because of this, potential issues may have been missed. However, it said there was no evidence the reduction in care package had caused Ms Y any harm.
17. It said when visiting Ms Y, Council officers had assumed Ms Y had capacity and approached each decision with Ms Y on this basis. It said this had been the correct approach in line with guidance.
18. The Council made several recommendations. These included:
• Maintaining the original eight calls a day until it completed a full review of her care and support plan;
• Any further review should include a review of the whole plan and not focus on specific themes;
• Mr and Mrs X to be actively involved in future decisions about Ms Y’s health and care needs;
• A meeting with Mr and Mrs X for the Council to provide more information on its approach to assessing capacity and decision making;
• A meeting to complete a complaint resolution plan to set out how it will meet the recommendations.
19. Mr and Mrs X were dissatisfied with this response and brought their complaint to us. They said the Council had not considered all aspects of their complaint and they wanted reassurance the Council would complete reviews appropriately in future and involve them in all decisions about Ms Y’s care and support.
20. Mrs X told us the Council had contacted them to arrange a meeting to complete a complaint resolution plan, but Mr and Mrs X had postponed this as they were awaiting completion of a subject access request and wanted to view this information before the meeting. Mrs X said they had now received this information and will contact the Council to arrange this meeting. Mrs X said Ms Y’s care package had remained at eight daily visits since their complaint and was currently working well.

Analysis

21. The Council’s investigation found it had not completed a full review of Ms Y’s care and support needs before deciding to reduce her care package. This was fault, however there was no evidence the reduction in care caused Ms Y an injustice. The Council accepted it was at fault and recommended the original care package be maintained until it completed a full review of Ms Y’s care and support needs. It also recommended all future reviews consider her care and support needs as a whole and do not just focus on themes. These are appropriate recommendations for this part of the complaint, which satisfy Mr and Mrs X’s desired outcomes of maintaining the eight care visits and conducting future reviews appropriately.
22. The Council’s complaint investigation recommended Mr and Mrs X are actively involved in any future decision making related to Ms Y’s heath and care needs. This is an appropriate recommendation which meets Mr and Mrs X’s desired outcome to be actively involved in all decisions relating to Ms Y’s care. The Council was not at fault for presuming Ms Y had capacity to participate in decision making, prior to receiving evidence to the contrary. The law says a person should be presumed to have capacity unless it is proven otherwise, and each decision should be assessed specifically and at the time it needs to be made. The Council has offered to meet with Mr and Mrs X to discuss the Council’s approach to assessing capacity and decision-making.
23. The Ombudsman investigates complaints about events in the past and does not monitor future council actions. The Council has appropriately investigated Mr and Mrs X’s complaint. It has accepted it was at fault and made appropriate recommendations to improve the service it provides to Ms Y going forward.

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Final decision

24. I have completed my investigation. The Council was at fault, but this fault did not cause Ms Y an injustice. The Council has acted appropriately to improve its service.

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Investigator's decision on behalf of the Ombudsman