Summary: There is no evidence of fault by the Council in the way it assessed Mr Y’s capacity to make decisions about his care and accommodations needs. The Council adhered to the principles of the Mental Capacity Act 2005.

The complaint

1. Mrs X complains the Council placed her brother, Mr Y, in a care home against his and his family’s wishes. She also complains about the attitude and behaviour of two social workers.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), 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 the opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

5. The Care Act 2014 is the legislation that sets out local authorities’ powers and duties in respect of adult social care. The Care Act places a duty on local authorities to promote the wellbeing of people in their area.
6. Sections 9 and 10 of the Care Act require local authorities to carry out an assessment of any adult who appears to need care and support. Where a local authority has determined that a person has eligible needs, it must meet those needs.
7. The Mental Capacity Act 2005 (MCA) and the Care Act work together to promote the empowerment, safety and wellbeing of adults with care and support needs. Section 44 of the MCA prioritises people’s safety by making willful neglect or mistreatment of an adult who lacks capacity to make decisions a criminal offence.
8. There is nothing in the Care Act that replaces or undermines the MCA when it comes to making decisions with or on behalf of adults who lack capacity. There are five principles of the Act that need consideration:

• Assume that a person has capacity to make decisions, unless there is evidence otherwise.
• Do all you can to maximize a person’s capacity.
• Unwise or eccentric decisions do not in themselves prove lack of capacity.
• If you are making a decision for or about a person who lacks capacity, act in their best interests.
• Look for the least restrictive option that will meet the need.

What happened

9. The statement is not meant to be an account of everything that happened. I have focused on the material issues in the complaint.
10. At the time of the events complained about Mr Y was in his late seventies. He had dementia and other physical health problems. He had lived in supported living for approximately seven years. Mr Y’s brother lived next door and provided support. Mr Y also received 19.5 domiciliary care hours each week commissioned by the Council.
11. The Council received an email from the supported living facility on 21 May 2020 saying it was struggling to meet Mr Y’s increased needs, specifically with continence and mobility, and that Mr Y was distressed as he was soiling himself outside of care calls, and that care calls were taking longer due to his reduced mobility. It said it was unable to accommodate the increased care calls.
12. A social worker visited Mr Y to discuss his situation. The officer completed an assessment of Mr Y’s care needs and a formal mental capacity assessment to determine if he was able to decide about his care and accommodation needs. I have seen a copy of both documents and I can confirm they are completed properly and in accordance with the law.
13. Mr Y agreed to a short period of respite care and went into residential care on 28 May 2020. Mrs X says Mr Y only agreed to respite care for one week. She says Mr Y began asking to leave the care home after a week’s stay and was often tearful. Mrs X relayed this to social services, who she says refused to listen.
14. The records show a social worker visited Mr Y at the care home on three separate occasions in June 2020. A carer from the home was present at each visit. I have seen the records of these visits.
15. The records also show Mr Y’s needs increased during his respite stay, and he required assistance with personal care and continence. The Council completed an assessment of Mr Y’s care needs. I have seen a copy of this document.
16. The Council reassessed Mr Y’s mental capacity to make decisions about his care and accommodation needs on 8 June 2020. I have seen a copy of this document. It concluded Mr Y did not have the capacity to make such decisions.
17. Mr Y was then appointed an Independent Mental Capacity Advocate (IMCA). In June 2020 the IMCA reported back to the Council. I have seen a copy of the report dated 23 June 2020. It records in detail the steps taken by the IMCA. The IMCA met with Mr Y to discuss his care and accommodation, and consulted others involved in his care. The IMCA concurred with the Council’s decision, that Mr Y lacked capacity to make decisions about his care and accommodation needs., and his needs would best be met in residential care. The IMCA reported Mr Y to be ambivalent about the care home and advised the placement should be reviewed after three months, and that Mr Y should have support from an IMCA during the review.
18. The Council convened a best interest meeting on 24 June 2020. Due to the pandemic the meeting was conducted remotely. Mrs X was invited to join the meeting, which she declined. The meeting considered all the records/information relating to Mr Y’s situation along with the views of all the professionals involved in Mr Y’s care, and concluded Mr Y should remain in residential care.
19. Mr Y’s residential care placement was made permanent on 24 June 2020.
20. Mrs X contacted the Council numerous times to report her concerns about Mr Y’s wellbeing. She reported him to be unhappy, and that he wanted to leave the care home. She believed the care home was not encouraging Mr Y to mobilise and that he was in a wheelchair all day, and consequently his mobility had deteriorated. Mrs X also believed Mr Y may have been sedated.
21. The IMCA visited Mr Y again on 2 October 2020. She reported Mr Y’s presentation had improved and he was better able to communicate. Mr Y told the IMCA he wanted to leave the care home and go somewhere quieter. The IMCA reported Mr Y still appeared to lack capacity to understand information relating to his care and accommodation needs or weigh up a decision. However, she recommended the decision that Mr Y remain at the care home be reviewed.
22. The Council received a request from the care home for authorisation of Deprivation of Liberty Safeguard (DOLS). This was granted on 5 October 2020 for six months. I have seen a copy of this document. The assessor concluded Mr Y lacked the capacity to make decisions about his care and accommodation needs, and that it was in his best interests to remain at the care home.
23. The Council reassessed Mr Y’s capacity to decide about his care and accommodation needs on 21 November 2020. I have seen a copy of the report. The assessor concluded Mr Y lacked capacity to make such decisions, and that his health had declined. The assessor concluded that it would be detrimental to health to move Mr Y to a different care home.
24. A best interest meeting was held on 2 December 2020. The minutes of the meeting are detailed and comprehensive. Mrs X did not attend the meeting, but her views were considered. Mrs X felt strongly that Mr Y should not remain in his placement. Ideally, she wanted Mr Y to return to his previous accommodation, if that was not possible, she wanted him to move to a care home closer to her home. The meeting considered all the records/information relating to Mr Y’s situation along with the views of all the professionals involved in Mr Y’s care, including the IMCA, and the DOLS assessor. It concluded Mr Y should remain where he was. The records show the Council intended to make an application to the Court of Protection.
25. Mr Y sadly passed away at the care home on 3 January 2021. Mrs X says he remained there against his will and his health deteriorated because he was so unhappy.
26. Mrs X says the care Mr Y received at the care home was inadequate. The Council says it had regular contact with the care home, and although Mr Y reported he wanted somewhere quieter to live, he did not complain about the care provided to him. No concerns were reported by either the IMCA or the social worker.
27. Mrs X complains about the actions/attitude of two social workers. She says the officers failed to respond to the family’s queries and were aggressive in their approach. She says one officer was particularly rude and unwavering in her decision that Mr Y should stay in the care home. The records detail all the contact Mrs X had with the Council and record her concerns/complaints.

Analysis

28. The evidence I have seen demonstrates what a difficult situation this was for all concerned.
29. It is not for the Ombudsman to say how much care and support Mr Y needed or what was in his best interest, that is the Council’s role. The Ombudsman’s role is to consider whether the Council followed the correct process in determining Mr Y’s capacity to make such decisions. If it did, then I cannot question or criticise the decisions the Council made.
30. In this case I find no fault by the Council.
31. The evidence I have seen shows the Council properly assessed Mr Y ’s ability to understand his care and accommodation needs and his decision making in relation to this. Officers spoke with Mr Y and considered his views. When the assessments concluded Mr Y lacked capacity to make such decisions it made a best interest decision on his behalf. There is no fault in the best interest’s process. The Council adhered to the principles of the Mental Capacity Act.
32. Because Mr Y lacked capacity to make decisions about his care and accommodation needs, and due to differing views about his needs, the Council secured an IMCA for Mr Y. This was the correct procedure. The Council took account of the IMCA’s views in the decision-making process. When the IMCA recommended the decision about Mr Y’s accommodation should be reviewed the Council did so, and reassessed Mrs Y’s mental capacity. When this concluded Mr Y lacked capacity, the Council made a best interest decision on his behalf again. This was the correct procedure.
33. The Council acted correctly in obtaining a Deprivation of Liberty Order when it became apparent Mr Y’s free will may be restricted. The Mental Capacity Act 2005 includes the Deprivation of Liberty Safeguards, it is a set of checks that aims to make sure that any care that restricts a person’s liberty is both appropriate and in their best interests. If Mrs X disagreed with the decision she had the option of applying to the Court of Protection to challenge the decision.
34. The Deprivation of Liberty Order was granted for six months. The Council was aware of Mr Y’s views and Mrs X’s objections to Mr Y’s placement. It intended to make an application to the Court of Protection within six months. Sadly, Mr Y passed away before this process commenced.
35. I am satisfied the Council gave due regard to Mrs X views. I realise Mrs X disagreed with the Council’s decisions with the but that does not make the decisions wrong.
36. I have seen no evidence which suggests the care Mr Y received was poor. There were numerous visits from social workers, an IMCA and DOLS assessor, none of which reported any concerns.
37. The records show all the contact Mrs X had with the Council. I am satisfied that officers responded to her communication in a timely manner.
38. I am unable to come to a finding on Mrs X’s complaint about officers’ manner towards her. Complaints like this are often difficult to consider when it relates to a verbal conversation. Each person has their own interpretation of events. I was not there or involved in the discussion in any way.

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Final decision

39. There is no evidence of fault by the Council in the way it assessed Mr Y’s capacity to make decisions about his care and accommodations needs. The Council adhered to the principles of the Mental Capacity Act 2005.
40. I am satisfied officers responded to Mrs X’s communication in a timely manner, however, I am not able to come to a finding about officers’ manner towards Mrs X.
41. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman