Summary: Mr X the complainant, complained the Council did not properly consider his late mother’s needs when assessing her for a move to a care home resulting in falls in her home. The Council said it had to follow deprivation of liberty procedures because the client said she did not want to move. We found the Council at fault, and it has agreed to apologise, pay Mr X £250, and review its procedures.

The complaint

1. The Complainant I shall refer to as Mr X complains the Council failed to properly consider if his late mother-in-law Mrs Y needed urgent care in a care home. Mr X says the Council gave Mrs Y’s reluctance to move priority over her family’s views, her known lack of mental capacity and the risks posed by her remaining at home. The family believe this led to a fatal fall from which Mrs Y did not recover.
2. Mr X wants the Council to accept it gave too much weight to Mrs Y’s known and often expressed wish to remain in her own home. Mr X wants the Council to improve decision making to avoid other families experiencing the same distress.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
5. If 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)

Back to top

How I considered this complaint

6. In considering this complaint I have:
• Spoken with Mr X and read the information presented with his complaint;
• Put enquiries to the Council and reviewed its responses;
• Researched the relevant law, guidance, and policy.
7. I shared my draft decision with Mr X and the Council and reflected on their comments before reaching this my final decision.

Back to top

What I found

The law and guidance

8. The Mental Capacity Act 2005 (the Act) governs how councils and those involved with people who may lack mental capacity should act. Guidance in the Mental Capacity Act Code of Practice and the Deprivation of Liberty Safeguards Code of Practice 2008 helps councils comply with the Act.
9. A key principle of the Act is that any act done for, or any decision made for a person who lacks capacity must be in that person’s best interests.
10. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests. The decision maker also must consider if there is a less restrictive choice available that can achieve the same outcome.
11. A deprivation of liberty must be authorised through the courts or under the scheme in the Act.

What happened

12. Mrs Y lived at home cared for by carers and her family. Mrs Y’s son in law Mr X has a Power of Attorney to make decisions for Mrs Y including decisions on her finances and health and well-being. Following Mrs Y’s diagnosis of Alzheimer’s disease in 2018 Mrs Y often told her family and carers that she did not want to go into a care home even for respite care.
13. Prior to October 2020 Mrs Y received support through care workers visiting her twice daily and had a fall alarm fitted at her home. Until January 2021 Mrs Y did not experience any reported falls within her home. Family visited her most days.
14. During 2020 Mr X says the risk to Mrs Y of remaining at home alone increased. Mr X says evidence to support his view includes Mrs Y locking herself in the house, barricading doors. Mrs Y’s personal hygiene declined. Mrs X hid food and switched off key equipment. Mr X says this put Mrs Y at risk of injury or worse. Mrs Y did not understand she had placed herself at risk, but made it clear she did not want to go into a care home.
15. In October 2020 Mr X contacted the Council for help believing Mrs Y needed to move into supported accommodation. The Council says it explained to Mr X that unless Mrs Y posed an urgent risk it may take some months for an assessment.
16. Mr X contacted the Council twice in December 2020. On 7 December 2020 he told the Council it was only a matter of time before Mrs Y would fall. On 22 December the Council spoke with Mr X and arranged to assess Mrs Y’s care needs and mental capacity on 6 and 19 January 2021.
17. The assessment confirmed Mrs Y needed 24-hour care support. The Council’s social worker noted Mrs Y had no problem communicating her settled wish not to move to a care home. The social worker explained to Mrs Y she would consider her views, but the Council may decide to move her. The Council says such a move against Mrs Y’s will, could be classed as a deprivation of her liberty needing authorisation. To allow Mrs Y time to see if she could remain at home with increased support the Council arranged for four visits a day to support her, starting on 12 January 20201. It arranged a review in a week. The Council considered this the least restrictive choice in care delivery.
18. On 13 January 2021 in an email to the family the Council’s social worker explained that until now Mrs Y had continued living in her home with minimal support and said she did not want to move. Therefore, the Council said it needed to allow time to see if she could continue living at home with an increased care package. It could then move to a best interest meeting to consider a move to a care home setting.
19. During the night of 16 January 2021 Mrs Y fell in her bedroom and carers found her on the floor the next morning. Mr X contacted the Council on 18 January to report the fall and explain the fall did not activate the fall alarm.
20. Mrs Y fell again during the night of 20 January 2021. Again, family found Mrs Y the next day in severe pain. An ambulance took her to hospital.
21. The best interests meeting took place on 22 January 2021. The meeting’s chair set out the need for a court order if Mrs Y continued to object to care home care. The Council’s social worker told the meeting the Council could not legally force Mrs Y to leave her home. Not until it had exhausted all measures to support her in the home as the ‘least restrictive option’. Mr X told the meeting about the risks Mrs Y posed through her actions and lack of capacity. With Mrs Y now in hospital the meeting agreed that on discharge she would need to go into respite care.
22. On taking legal advice the Council decided it could not move Mrs Y and deprive her of her liberty without gaining a court order. The law sets out the procedure a council must follow to gain an order. The Council must show the person is over 18, suffers from a mental condition such as dementia, and lacks mental capacity. Plus, it must show that a deprivation of liberty is necessary (after an independent assessment) and in their best interest to protect them from harm. Applicants should present an application for a court order application within 28 days of the best interest meeting that decided to apply for an order.
23. On 1 February 2021 Mrs Y sadly passed away having contracted Covid -19 before the Council could complete the application or arrange respite care.
24. Mr X says had the Council acted more urgently, accepted his view as Power of Attorney and moved Mrs Y into a care home Mrs Y may not have fallen. The Council says falls could and do happen within care settings so Mrs Y may still have fallen whatever the setting. If falls occurred in care home settings however, both parties agree, there is usually 24-hour care to offer support.

Analysis- was there fault leading to injustice?

25. My role is to decide if the Council properly considered all relevant information and powers available to it when deciding how to meet Mrs Y’s needs. It is not to decide whether Mrs Y needed a placement in a care home. If I find the Council at fault, I must decide how it should remedy the impact of that fault on the late Mrs Y, Mr X, and his family.
26. Mr X does not understand why he could not approve a move by the Council into a care home as Mrs Y’s power of attorney. Even with a power of attorney if the person receiving care objects, then any attempt to move them against their will can be construed by the courts as a deprivation of liberty and illegal. Both Mr X and the Council would need a court order to move Mrs Y if she continued to resist proposals to move her into 24-hour care even though she lacked capacity.
27. The Council manages service applications through a triage procedure where the Council places applications on a waiting list depending on whether the applicant presents as in urgent need. In triage the Council contacts the referrer and assesses the risk and urgency and advises the referrer to contact the Council if circumstances change. The record for 12 October 2020 does not give any details of how the Council’s social worker through questions put to Mr X decided if Mrs Y needed urgent assessment. Therefore, I cannot judge from the record whether the Council gathered all relevant information before deciding to place Mrs Y’s assessment on its waiting list. The Council did not review that decision until Mr X contacted it. It should regularly review cases on the waiting list without waiting for further contact. This delayed any assessment and application for a court order resulting in Mrs Y remaining at home. I find the record keeping and lack of review a fault.
28. On Mr X’s further application in December 2020 the Council arranged an assessment by 6 January which I find is within the timeframe expected.
29. The assessment found Mrs Y lacked capacity, needed 24-hour care but had clearly refused a move. Therefore, the Council would need to show it had offered the least restrictive service. It agreed to review that in a week. If as expected Mrs Y could still not safely cope at home the Council would begin the application for a court order. The Council took legal advice on what it should do and acted in line with that advice. I find the Council acted in line with best practice and its legal advice in offering a four-visit a day service for a week before starting the legal procedure. I find therefore it acted without fault in offering the service.
30. Following the best interests meeting Mrs Y sadly died. I cannot decide where Mrs Y contracted Covid-19 or what may or may not have hastened her sad demise.
31. The family will never know but for the decision in October 2020 to place the assessment on the waiting list if the Council may have applied for a court order sooner. Thus, removing her from the risks she posed to herself at home.
32. Our “Guidance on Remedies” suggests a payment on a scale between £100 and £300 as a symbolic payment in recognition of any distress caused by uncertainty or delay.

Back to top

Agreed action

33. To address the injustice, the Council agrees within four weeks of this my final decision to apologise to Mr X and pay him £250 in recognition of the avoidable distress the lack of good record keeping has caused. Within three months of my final decision to review how it records and reviews urgency of cases on the waiting list.

Back to top

Final decision

34. In completing my investigation, I find the Council at fault for poor record keeping and lack of review for which it has agreed a proportionate remedy.

Back to top

Investigator's decision on behalf of the Ombudsman