Summary: We will not investigate Ms B’s complaint about the Council’s failure to provide her sister, Ms D with support under the Care Act. This is because there is not enough evidence of fault with the actions taken by the Council to warrant an Ombudsman investigation.

The complaint

1. Ms B complains the Council failed to assess her sister, Ms D, and provide her with care and support between 1 and 3 December 2020 when she fell in her home and needed the emergency ambulance service. Ms B says Ms D lacked capacity to refuse the Council’s offer of support and says if it had properly assessed her and provided care and support as it has a duty to under its responsibility to vulnerable adults, Ms D would have been assessed as lacking capacity sooner, may not have required further emergency services or needed admitting to hospital and consequently would not have needed to move into a care home.

Back to top

The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

Back to top

How I considered this complaint

3. I considered information provided by the complainant.
4. I considered the Ombudsman’s Assessment Code.
5. The complainant had an opportunity to comment on my draft decision.

Back to top

My assessment

6. The Council says it received a referral from the ambulance service requesting a care needs assessment and possible Occupational Therapist (OT) assessment on 2 Dec following their attendance at Ms D’s s home the previous evening. The Council says it contacted Ms D at 9:30 am on 2 December following receipt of the referral. Ms D said she did not consent to having a care needs assessment and gave a reasonable account of the fall and said what she had done to reduce the risk of a repeated incident. The Council says there was nothing from the ambulance services referral or the telephone conversation to suggest Ms D lacked capacity to decline an assessment and the case was closed.
7. The Council says Ms B contacted it on 3 December at 9:08 and a new contact was opened. Ms B was concerned that Ms D had not been taken to hospital the previous evening following a further fall and ambulance service call out. Ms B said Ms D lacked capacity to decide she could refuse services and requested a Mental Capacity Act (MCA) and care needs assessment for Ms D. Ms B said she wanted to be present. The Council says it was noted Ms D had a diagnosed Learning Disability. Following Ms B’s call, the Council says it received a further referral from the ambulance service requesting a care needs assessment.
8. The Council says the referral was assigned to the community social care team as it appeared Ms D may have needed long-term care and support. It says the case was transferred the same day. The Council says it received a third referral from the ambulance service following receipt of a call from a family member. The ambulance service requested a review of Ms D’s care needs and noted she had a Learning Disability but said she had capacity at the time. The Council says the referral was passed onto the care team as soon as it was received.
9. The Council says it contacted Ms B on 4 December to arrange a care needs assessment later that day. Ms D was on the floor having fallen again waiting for paramedics to arrive. The Council says a preliminary assessment of what support could be offered was discussed with Ms D and she gave consent to a care package being put in place. However, Ms D was then taken to hospital and found to have broken both legs.
10. The Council contacted Ms D as soon as it received the referral but there was no indication at the time Ms D lacked capacity. Ms B says on 4 December the Council visited Ms D and determined she lacks capacity.
11. The Mental Capacity Act 2005 says a person must be assumed to have capacity unless it is established that s/he lacks capacity. A person should not be treated as unable to make a decision:

• Because he makes an unwise decision.
• Based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour.
• Before all practicable steps to help the person to do so have been taken without success.

12. The Ombudsman could not say there was fault with the Council’s decision to accept Ms D as having capacity when it first received the referral and presumed capacity. It commenced an assessment two days later, and Ms B says it determined then Ms D lacked capacity. The Council has explained this is not an inappropriate timescale given the facts known of at the time. We could not say this is fault.
13. Ms B says health and social care negligence resulted in Ms D suffering further unnecessary falls and eventually being admitted to hospital and then a care home. Ms B says Ms D should receive financial compensation for the distress caused. The Council has explained what it did and the timescales it did them in, we could not say this is fault. If Ms B believes Ms D has been neglected by the Council she can ask the court to consider her claim. Claims of negligence are properly for the courts to determine.
14. Ms B says when she called the Contact Team on 3 December, staff did not listen to her and spoke over her. The Council says records show Ms B advised staff Ms D had a Learning Disability and said she lacked capacity. The Council says Ms B was tearful, angry and upset that Ms D had been sent home from hospital, but staff denied it did not listen to her or talked over her. We understand Ms B perceived she was not listened to, but we were not there and could not make a finding on this point even if we investigated.

Back to top

Final decision

15. We will not investigate this complaint. This is because there is not enough evidence of fault with the actions taken by the Council to warrant an Ombudsman investigation.

Back to top

Investigator's decision on behalf of the Ombudsman