Summary: There was no fault because the Council followed the correct process by assessing Mrs Y’s mental capacity to return home. And it put in place a care package after assessing her care needs. These actions were all in line with the Mental Capacity Act 2005 and with Sections 9 and 18 of the Care Act 2015.

The complaint

1. Mr X complained about the Council’s involvement in his late relative Mrs Y’s care. He complained about the decision to discharge Mrs Y home in November 2019 without her family’s consent. He also complained about the discharge care package not meeting her needs.
2. Mr X said this caused avoidable distress.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. Although this complaint is about events in 2019, I do not consider it is a late complaint. This is because Mr X complained to the Parliamentary and Health Service Ombudsman (PHSO) about the same matters (and other issues about NHS services) within 12 months and the NHS and Council had taken some time to complaint the local complaints process beforehand. And the PHSO did not refer the complaint to us until March 2022. It would be unfair to penalise Mr X on time grounds.
5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. If we are satisfied with an organisation’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

6. I considered Mr X’s complaint and documents set out below. A colleague discussed the complaint with Mr X.
7. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

8. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, sections 9 and 13(1))
9. The Care Act spells out the duty to meet eligible needs (needs which meet national eligibility criteria). (Care Act 2014, section 18)
10. The Mental Capacity Act and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt. (Code of Practice paragraph 4.34)
11. A person lacks mental capacity to make a decision if they have a temporary or permanent impairment or disturbance of the brain or mind and they cannot make a specific decision because they are unable:
• To understand and retain relevant information or
• Weight that information as part of the decision-making process or
• Communicate the decision (whether by talking using sign language or other means.) (Mental Capacity Act, section 3)

What happened

12. Mrs Y went into hospital for surgery and from there into a nursing home which was arranged and funded by the NHS.
13. A social worker assessed Mrs Y’s mental capacity to decide on her care and support and where she lived. The record of the assessment considered Mrs Y’s ability to understand, retain, weigh and use relevant information and to communicate her wishes and her decision. The outcome was she had mental capacity.
14. The social worker spoke with Mrs Y’s relative. The relative said she did not agree with Mrs Y returning home. The social worker explained Mrs Y was lucid, had mental capacity and was able to state the level of care she required and how she would get help if she needed to. The social worker went on to say that nursing home staff reported Mrs Y had minimal care needs.
15. A social worker carried out an assessment of Mrs Y’s social care needs in November 2019. This noted:
• Mrs Y said consistently that she wanted to go home and that she could manage with care workers in her home. She said she wanted to regain her independence at home. She had mental capacity to decide on her care and support needs
• Some of her relatives were concerned she would not cope at home
• There had recently been a meeting with all professionals and family members at the nursing home and nursing home staff reported Mrs Y needed little support. Family members agreed to see how Mrs Y managed at home. Professionals did not consider there were any risks to Mrs Y going home.
• Relatives were happy to support with shopping and the cleaning service would restart
• The assessed care needs were for four calls a day with one carer to help with personal care, taking tablets and preparing meals. This may improve once Mrs Y was at home and the surgical wound had healed
16. The case records indicate Mrs Y went home on 28 November with a care package in place. There were problems with Mrs Y getting medication in the first day because it was not in a blister pack, so care workers gave it from the bottles or packages.
17. Mrs Y returned to hospital after a couple of days. Information from a relative indicates she may have fallen at home and/or may have had increased confusion because of low sodium levels.
18. Mrs Y’s condition declined once in hospital. The Council’s records indicate a hospital doctor considered she no longer had mental capacity to decide on her care or living arrangements. Mrs Y went into a nursing home at the start of 2020 which was funded by the NHS at first and then through a deferred payment to the Council.

Was there fault?

The decision to discharge Mrs Y home in November 2019

19. There was no fault in the decision-making in November which was in line with the principles in Section 3 of the Mental Capacity Act 2005. The Council assessed Mrs Y’s mental capacity in the proper format and concluded she had capacity to decide on her care and living arrangements. Her expressed wish was to return home and she agreed to the care package of four calls a day. While I accept the family disagreed with the decision and were concerned about risk, Mrs Y was a capacitated adult and it was her decision to make therefore, notwithstanding the family’s concerns about risk. The family’s views were noted, but there was no legal or other requirement for the Council to give effect to them.

The home care package

20. I am satisfied the Council assessed Mrs Y’s eligible social care needs and decided these could be met with a care package of four calls a day. This was in line with Sections 9 and 18 of the Care Act 2014 and so there is no fault.
21. It was unfortunate that Mrs Y went back into hospital again so soon after coming home, but this does not mean that her care package was inappropriate or there were flaws in the Council’s decision-making or assessments. Mrs Y could equally have become unwell through low sodium levels and fallen had she been placed in nursing care from hospital. The records indicated the care package was put in place following consultation with nursing home staff who confirmed Mrs Y was in the main independent and required only limited care and support. There are no grounds for me to conclude the care package was inadequate.

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Final decision

22. There was no fault. The Council followed the correct legal processes by assessing Mrs Y’s mental capacity to return home. It put in place a care package after assessing her care needs. These actions were all in line with the Mental Capacity Act 2005 and with Sections 9 and 18 of the Care Act 2015.
23. I completed the investigation.

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Investigator's decision on behalf of the Ombudsman