Summary: Mr X complained on behalf of his father, Mr Y, when the Council decided he could remain at home with support. Mr Y said he was not safe and wanted him to move to a care home. We found the Council was not at fault.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained on behalf of his father, Mr Y. He says the Council said Mr Y could manage at home but Mr X disagreed and believed he should move to a care home.
2. Mr X says Mr Y was not safe at home.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended). Mr Y has consented for Mr X to bring his complaint to us.

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How I considered this complaint

6. I considered information from the Complainant and from the Council.
7. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

Mental Capacity

8. The Mental Capacity Act 2005 (the 2005 Act) sets out how to decide for people who lack the mental capacity to decide for themselves. The 2005 Act and the Code of Practice (2007) describe the steps a person should take when dealing with someone who may lack capacity to decide for themselves. They describe when to assess a person’s capacity to decide, how to do this, and how to decide on behalf of someone who cannot do so themselves.
9. A person must be presumed to have capacity to decide unless it is established that they lack capacity. When someone’s capacity is in doubt a council must assess their ability to make a decision.
10. The 2007 Code of Practice says:
• Capacity should always be reviewed:
• whenever a care plan is being developed or reviewed;
• at other relevant stages of the care planning process; and
• as particular decisions need to be made.
• The person who lacks capacity is at the centre of the decision to be made. Their wishes, feelings, beliefs and values should be taken into account, but the final decision must be based entirely on what is in the person’s best interests.
• The decision-maker will need to find a way of balancing disagreements over best interests or deciding between them. Ultimate responsibility for working out best interests lies with the decision-maker.
• An advocate might be useful in providing support for the person who lacks capacity in working out their best interests, if family members and professionals disagree.
• If there is a serious disagreement about the need to move the person that cannot be settled in any other way, the Court of Protection can be asked to decide what the person’s best interests are and where they should live.

Powers of attorney

11. Powers of attorney are legal documents agreed and signed while a person still has the mental capacity to make their own decisions. They allow people to choose, in advance, who they want to decide on their behalf, about their health and welfare and/or their finances and property, when they cannot. Decisions made by an ‘attorney’ on the person’s behalf, must be in the person’s best interests. Separate powers are required for health and welfare, and for finance and property. Powers of attorney end with a person’s death.
12. The code of practice to the 2005 Act says:
13. “Attorneys have no authority to take actions that result in the donor being deprived of their liberty. Any deprivation of liberty will only be lawful if this has been properly authorised and there is other protection available for the person who lacks capacity”.
14. The guidance for attorneys in making decisions in someone’s best interests says the attorney should consider “what they would have decided if they could”. Also, their “past and present values and wishes”. It also says “Do not make assumptions based on their age, gender, ethnic background, sexuality, behaviour or health”.

Court of Protection

15. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
16. The Court of Protection may need to become involved in difficult cases or cases where there are disagreements that cannot be resolved in any other way. The Court of Protection
• decides whether a person has capacity to make a particular decision for themselves
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions
• appoints deputies to make decisions for people lacking capacity to make those decisions
• decides whether a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) is valid, and
• removes deputies or attorneys who fail to carry out their duties.
17. If there is a need for continuing decision-making powers and there is no relevant attorney, the Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian (OPG) oversees the work of attorneys and court appointed deputies and produces detailed guidance for them.

Deputyship

18. A Deputy is appointed by the Court of Protection to act for a person who lacks the mental capacity to do so themselves.

Deprivation of Liberty

19. The Deprivation of Liberty Safeguards (DoLS) 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. The legislation sets out the procedure to follow to get authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful.
20. If there is a conflict about an (un)authorised deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the court of protection.
21. Once there is, or is likely to be, a deprivation of liberty it must be authorised under the DoLS scheme in the 2005 Act.
22. The ‘managing authority’ of the care home (the person registered or required to be registered by statute) must request authorisation from the ‘supervisory body’ (the local authority). There must be a request and an authorisation before a person is lawfully deprived of his or her liberty.
23. On application, the supervisory body must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. A minimum of two assessors, usually including a social worker or care worker, sometimes a psychiatrist or other medical person, must complete the six assessments. They should do so within 21 days, or, where an urgent authorisation has been given, before the urgent authorisation expires.
24. Urgent authorisations are made by the managing authority of the care home in urgent cases only, for seven days. This is pending application for a standard authorisation from the local authority.

What happened

25. Mr Y lived at home on his own. He had dementia and was independent with some support. In early March 2021, Mr X contacted the Council to advise that Mr Y’s memory was worsening, and he was concerned that Mr Y was not coping. Mr X said Mr Y did not remember to wash and change regularly and believed he did not eat regularly; he had lost weight. He consulted Mr Y’s GP who said his weight and BMI were within the normal range and had not significantly changed. Mr X also said Mr Y’s kitchen and bathroom were disgusting. Mrs X visited weekly to clean Mr Y’s home and do his laundry. Mr X also felt Mr Y would become lost very easily and was concerned that Mr Y was not managing his medication safely.
26. Mr Y took too much medication and was admitted to hospital in April; following this his medication was changed to morning only and kept in a locked box. The Council arranged support from a short term enablement service to help assess his needs. The service felt Mr Y was managing his meals and personal care. He refused help with personal care but did not appear unkempt. It said he would benefit from support to ensure he was managing his needs, with prompting if needed, as he may not always remember. He also, needed support with taking his medication.
27. In May, the Council completed an assessment of Mr Y’s care needs. It also offered Mr X a carer’s assessment which he declined. The social worker said Mr Y lacked mental capacity around his care and support needs. They recommended a package of care when the short term service ended, as the least restrictive option. His care and support plan said care workers should:
• Check Mr Y has managed meals and drinks and sensitively check for evidence of this. If not, sensitively prompt and encourage intake if needed.
• Monitor any signs of weight loss and report to Mr Y, Mr X and appropriate health services.
• Check Mr Y’s property for out of date food and drink.
• Check Mr Y has managed hygiene needs and sensitively check for evidence of this. If Mr Y not, sensitively prompt and encourage him if needed.
• Check Mr Y has managed to dress appropriately and sensitively check for evidence of this, if not managed, sensitively prompt and encourage him.
• Prompt Mr Y to change clothing or bedding if marked by loose bowel movements.
• Ensure Mr Y’s environment is clean and tidy as he could have loose bowel movements and may mark the toilet.
• Sensitively check Mr Y’s environment is safe and check for evidence of concerns eg Mr Y has previously burnt a hole in his bedding. Report any concerns to Mr Y, Mr X and the Council. Also remind Mr Y to put out his cigarettes.
• Manage Mr Y’s medication; he is normally able to take it independently when prompted.
28. However, Mr X did not agree with this and felt Mr Y should move to a residential care home. Mr X said the social worker spoke to Mrs X and, although pleasant, threatened to take the decision away from Mr X. He also asked that Mr X not phone, text or email him again. The social worker mentioned using an advocate to ensure Mr Y’s wishes were considered as it believed his needs could be met at home, but Mrs X felt scared about this. The Council offered Mr X and Mrs X a carer’s assessment to see what support it could offer them.
29. The Council responded to Mr X’s complaint about this. It said it had been “unable to find any evidence” that the social worker and short term service had not fully assessed the risks. It also found no evidence that Mr Y was currently at risk of wandering or getting lost. It suggested exploring assistive technology; this alerts someone remotely to problems. The Council acknowledged that Mr Y might need a care home in future, but he did not need it then.
30. Mr X told me “My dad will refuse to go until the day he dies.”, also “My dad may have dementia but is not stupid. He answered yes to his questions of meds, food etc. He knows this will keep himself where he is”.

Was there fault which caused injustice?

31. The Council was clear that Mr Y lacked capacity to decide about his care. This means anyone making decisions on his behalf, must do so in his best interests. So, although Mr X has powers of attorney, he can only decide in Mr Y’s best interests. The Council must authorise any deprivation of liberty. If Mr X moved to a care home in the way Mr X intended, he would be deprived of his liberty and the Council would need to authorise this. As Mr X disagrees with the Council on what Mr Y’s best interests are, a formal best interests process would be appropriate to decide this. The Council has proposed Mr Y is represented by an advocate; this would be an independent advocate to ensure his views were properly represented. Mr Y’s views would be a significant factor in this decision. His views were, clearly to remain at home, and this was not disputed by Mr X. The Council took appropriate action to consider the risks and whether Mr Y could remain at home with support, and it concluded he could. I found no fault here.
32. If Mr X were to place Mr Y in a care home under these circumstances, the Council would be obliged to raise safeguarding concerns. It would also have to make a referral to the Office of the Public Guardian to raise concerns that the attorney was not acting in Mr Y’s best interests. Ultimately, the power of attorney could be rescinded, and the Court of Protection called upon to decide. The social worker explained this to Mrs X; it was not a threat but a statement of fact. I am satisfied that the social worker was not threatening but trying to explain that he could not place Mr Y in a care home for the reasons explained. I found no fault here.
33. I found no fault so make no recommendations. However, I suggest the Council make every effort to offer Mr X and Mrs X the opportunity of a formal best interests decision with an independent advocate to support Mr Y.

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Final decision

34. I have completed my investigation and do not uphold Mr X’s complaint.

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Investigator's decision on behalf of the Ombudsman