Summary: Ms D complained on behalf of the late Mr J about the care and support provided to him by the Council since 2021. There was fault which has caused uncertainty to Ms D. The Council has agreed to apologise to Ms D.

The complaint

1. Ms D complained on behalf of the late Mr J that the Council had failed to:
• Provide Mr J with appropriate accommodation to meet his needs since 2021.
• Carry out a needs assessment or mental capacity assessment promptly.
• Refer to the court of protection.
• Communicate with his family or accept Ms D’s complaint.
2. As a result Mr J’s physical and mental wellbeing had deteriorated.

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. When considering complaints, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (Local Government Act 1974, section 26A or 34C)
6. 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)

Back to top

How I considered this complaint

7. I spoke to Ms D about the complaint and considered the information she sent, the Council’s response to my enquiries and the Care and Support Statutory Guidance (“the Guidance”).
8. Ms D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and guidance

Care and support needs assessments

9. The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs.
10. The assessment must involve the individual and where suitable their carer or any other person they might want involved. The Guidance says if the person being assessed has severe communication needs, such as deafness, they may require the support of a specialist interpreter to help them to communicate and engage in the assessment.
11. Where local authorities identify that the person would have substantial difficulty in being fully involved in the assessment process, it should seek to involve somebody who can assist the adult. This may be a family member or friend who is acceptable to the individual and judged appropriate by the local authority. Where there is no one thought to be appropriate for this role, the local authority must appoint an independent advocate.
12. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan. Where the council has determined a person’s needs are best met in a care home, it must provide for the person’s preferred choice of accommodation, subject to certain conditions.

Care and support reviews

13. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. The Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing the care and support plan.
14. If there is any information or evidence that suggests that circumstances have changed in a way that may affect the efficacy, appropriateness or content of the plan, the council should immediately conduct a review.
15. Councils must also conduct a review if the adult or a person acting on the adult’s behalf makes a reasonable request for one. The right to request a review applies not just to the person receiving the care, but to others supporting them or interested in their wellbeing. The council must carry out the review unless it is reasonably satisfied that the plan remains sufficient.
16. Councils should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met.

Mental capacity

17. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. Where there is concern about a person’s capacity to make a specific decision, then an assessment of capacity should be carried out under the Mental Capacity Act 2005. The Act and its Code of Practice 2007 describe when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
18. The person who assesses an individual’s capacity to make a decision will usually be the person who is directly concerned with the individual at the time the decision needs to be made. More complex decisions are likely to need more formal assessments. A professional opinion on the person’s capacity might be necessary. But the final decision about a person’s capacity must be made by the person intending to make the decision.
19. Every effort should be made to find ways of communicating with someone before deciding that they lack capacity to make a decision based solely on their inability to communicate. A speech and language therapist might be able to help if there are communication difficulties.
20. The Code of Practice says carers (whether family carers or other carers) and care workers do not have to be experts in assessing capacity. But to have protection from liability when providing care or treatment, they must have a ‘reasonable belief’ that the person they care for lacks capacity to make relevant decisions about their care or treatment. To have this reasonable belief, they must have taken ‘reasonable’ steps to establish that that the person lacks capacity to make a decision or consent to an act at the time the decision or consent is needed. They must also establish that the act or decision is in the person’s best interests. They do not usually need to follow formal processes, such as involving a professional to make an assessment. However, if somebody challenges their assessment, they must be able to describe the steps they have taken. They must also have objective reasons for believing the person lacks capacity to make the decision in question.

Best interest decisions

21. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. Decision-makers decide who should be consulted on this decision. Those they should consult include:
• Anyone engaged in caring for the person (paid or unpaid);
• Close relatives, friends or others who take an interest in the person's welfare;
• Any donee of a Lasting Power of Attorney (LPA).
22. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Council complaint procedure

23. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
24. The Council’s policy says a person can complain with help from someone else such as a friend, relative, carer or another person who speaks on their behalf, such as an advocate. The Council may need to confirm that this representative has the complainant’s consent in writing or verbally. However, it will accept complaints in certain circumstances, where there are welfare concerns or in line with the Mental Capacity Act 2005, where consent may not be required.

What happened

25. Mr J was a working-age adult who had a learning disability, hearing difficulties and health conditions. He used Makaton signing, British Sign Language and lip reading. He had been living in supported living accommodation and had been fully independent with mobility and personal care, requiring some support with meals and medication. Ms D had been involved in Mr J’s care for thirty years. She had LPA for finance jointly with Mr J’s brother. There was no LPA for health and welfare.
26. Mr J went into hospital in January 2021 after contracting COVID-19. His health deteriorated and he required intensive care and rehabilitation in hospital. His illness left him unable to stand or to be independent.
27. On 9 April 2021 a multi-disciplinary team discharge meeting decided Mr J required a specialist nursing home, with access to occupational therapy (OT) and physiotherapy. It decided it would not be in his best interest to move to a temporary rehabilitation unit. The Council says a formal mental capacity assessment had not been done, but the care workers had a reasonable belief that Mr J lacked capacity to make this decision.
28. Mr J moved to a nursing home (“the Home”) which caters for older people, those with dementia and people with physical disabilities in April 2021. The Council has sent me a care and support assessment dated 15 April 2021. It is not fully completed but says Mr J required full support. The Council emailed Ms D on 28 April 2021 to say it would carry out a care and support assessment.
29. A physiotherapist assessed Mr J in July 2021 and he was receiving weekly physiotherapy to improve his mobility. There was a joint OT and physiotherapy assessment in October 2021. This found that:
• There had been improvement in Mr J’s mobility and communication.
• He spent most of the day in his room, eating breakfast and supper in bed.
• Since being discharged from hospital Mr J had not gone out into the community. This was due to lack of provision at the Home to support this. No vehicle was available and because the Home was located some distance from local amenities it was not possible for staff to walk with Mr J to the shops.
• There was a lack of opportunity to engage Mr J in meaningful activity at the Home, which may be resulting in a lack of cognitive stimulation and lack of motivation.
30. The therapists recommended:
• All staff supporting Mr J should have some level of training in Makaton.
• The Home should explore providing Mr J with access to the community and community activities. This had previously been a big part of his occupational identity and would be very beneficial for his well-being.
• Those supporting Mr J should ensure he engaged in meaningful activities and had a more active daily routine to encourage him to mobilise more regularly.
• The Council should review Mr J's care and support needs and the ability of the Home to meet these as he became more active and engaged.
31. I have seen no evidence there was a review of Mr J’s care and support needs following the therapists’ report.
32. Ms D says the therapists’ recommendations were not implemented. She contacted the Council in November 2021 suggesting Mr J should move to a specialist learning disability home closer to his family, with better access to the community and a peer group. She was concerned that Mr J's physical recovery could be followed by a steep psychological decline if he remained in the Home.
33. The Home suggested a best interest meeting was needed, although it is not clear to me what decision was to be taken.
34. A best interest meeting was held in December 2021. I have not seen the notes of this meeting, but Ms D says it concluded that Mr J was ready to move to the next stage of his rehabilitation with more physical activity and more stimulation. It was proposed he should attend a day centre and be taken out into the community. The Council agreed to investigate reablement services and possible support from a personal assistant to access the community. I have not seen any evidence that these actions were taken or that Mr J’s care and support plan was updated.
35. Ms D made a formal request for a review of Mr J’s care and support needs in January 2022. She again suggested an alternative placement which was willing to assess Mr J. In February she noted no action had been taken and Mr J had now stopped walking and spent all day every day in bed watching television. The Council replied that Mr J needed an advocate and the Home was not necessarily the right placement.
36. The social worker visited Mr J for the first time in March 2022. I have not seen an updated care and support assessment, but the Council says the social worker found that Mr J had not been coming out of his room since December, was staying in bed and was no longer engaging with physiotherapy. There was a concern he may be depressed. The social worker made a referral for a speech and language therapist to “establish why he had stopped engaging with the outside world”. A referral had also been made for a dementia assessment.
37. Ms D says there was a discussion between the social worker and the family about training a personal assistant to take Mr J out but I have seen no evidence this happened.
38. In May 2022 the physiotherapist discharged Mr J as he was no longer engaging with the exercises. The Council told Ms D it had asked the speech and language therapist to assess Mr J’s mental capacity.
39. Ms D continued to chase the Council over the summer. After receiving no response, she made a formal complaint in August 2022 that the Council had failed to act and had ignored the therapists’ recommendations.
40. The Council said it could not accept Ms D’s complaint as it did not have Mr J’s consent for her to represent him. Ms D made another complaint in December 2022. The Council again said it could not accept Ms D’s complaint unless she had LPA for health and welfare and referred her to the Ombudsman.
41. In January 2023 an assessment with the speech therapist established that Mr J did not have capacity to say if he was happy in the Home.
42. The Council assessed Mr J’s care and support needs in March 2023 as there were suggestions that his social care needs might not be being met. It found Mr J did not wish to engage with others which may be the result of low mood. The dementia assessment had been inconclusive.
43. Mr J’s health deteriorated and he went into hospital. He was diagnosed with cancer and sadly died in March 2023.

My findings

Mr J’s care and support

44. There is no dispute that in April 2021 Mr J required nursing care on discharge from hospital. I have not seen how the Home was chosen, but Ms D says it was providing good support. I would have expected to see a care and support assessment of Mr J’s needs once Mr J was in the Home and a light touch review eight weeks later. But I accept that he was poorly and his rehabilitation took some time, so it is likely his needs had not changed in eight weeks.
45. The situation changed as Mr J’s ability to stand, walk and communicate improved during 2021. The therapists’ assessment in autumn 2021 concluded that Mr J needed to engage in meaningful activity, including going out into the community. It recommended a review of his care and support needs.
46. The Guidance says councils should carry out reviews if requested, unless they are satisfied that the care and support plan remains sufficient. I have seen no evidence that the Council decided in autumn 2021 that the plan was sufficient. Nor that it considered whether a review was or was not necessary. This was fault.
47. The Council says the review was not done until January 2023 as it needed to wait for a speech therapist to assess Mr J’s capacity. The Guidance says that councils can review a person’s needs with support from carers or family if the person would have substantial difficulty in being fully involved. My view, therefore, is that the Council did not need to wait for a capacity assessment or an assessment by the speech and language therapist to review Mr J’s care and support needs. Following the OT and physiotherapists’ report, it should have visited Mr J to determine what his needs now were and whether the Home was meeting them. It did not do so, which is fault.
48. However, there was a best interest meeting in December 2021. I am unclear what decision was to be made, but Ms D says the outcome was that Mr J should access the community through day centres and by training up a personal assistant. As Mr J’s support was to be changed the care and support plan should have been updated in December 2021. I have seen no evidence it was, which is fault.
49. Nor have I seen evidence that steps were taken to enable Mr J to access the community or to consider whether the Home was the best placement for him. This was fault.
50. Ms D made a formal request for a care and support review in January 2022. Again, I have seen no evidence this was considered or acted on, which is fault.
51. The Council told Ms D that Mr J should have an independent advocate but this could only be accessed once a capacity assessment had been done by the speech and language therapist. The Council is right that an independent advocate is needed for a person who lacks capacity. It would therefore need to firstly determine that Mr J lacked capacity.
52. However, an advocate is not necessary if the person’s views can be represented by family or another person. Mr J had both a brother and Ms D to represent his views and had not required an advocate for the best interest decisions in April 2021 or December 2021, nor for the therapists’ assessment in October 2021. I therefore do not consider that Mr J required an advocate in order for a review of his needs to take place.
53. My view is that the Council should have reviewed Mr J’s needs in late 2021, using Ms D, his brother and the care staff to assist. If the social worker determined that Mr J’s needs were not being met at the Home, the Council would then make a best interest decision about whether Mr J should move, consulting with Mr J’s brother and Ms D. It is at this stage a formal mental capacity assessment would be needed to ensure that every effort had been made to help Mr J to communicate. If there was a dispute about what was in Mr J’s best interest, the Council would need to involve an advocate and the Court of Protection.
54. I consider that, given the outcome of the December 2021 meeting, it is likely that a care and support review would have resulted in changes to Mr J’s care and support plan in relation to accessing day centres and the community, engaging in meaningful activities and to consider if other placements may be more suitable. I cannot say whether the Home was appropriate accommodation.
55. As there was no updated care and support plan, no action was taken during 2022 to enable Mr J to access the community. I cannot say that even if this action had been taken, Mr J would have accessed the community. He may have continued to be unwilling to leave his room. And I cannot say that it caused Mr J’s mental or physical health to deteriorate. But this uncertainty is an injustice to Ms D as she is left not knowing if there could have been a better outcome for Mr J.

Handling of Ms D’s complaint

56. It was fault for the Council not to accept Ms D’s complaint. Its policy says that a friend, relative, carer or another person may complain on behalf of a person and that consent from that person may not be needed “in certain circumstances, … or in line with the Mental Capacity Act 2005.” But the Council told Ms D it could not consider her complaint as Mr J could not consent and she did not have LPA for health and welfare.
57. Whilst there is doubt about whether Mr J had the capacity to consent to a complaint being made on his behalf, my view is it cannot be right that only people with health and welfare attorneys are able to complain. If consent cannot be obtained, the Council should satisfy itself that a representative is acting in the person’s best interests. If so, it should allow the complaint. In response to my enquiries the Council accepted that it considered Ms D was acting in Mr J’s best interest.
58. In addition, there is nothing in the complaint process that means the representative must see the person’s personal data. So this should not be a barrier to investigating a complaint.
59. Refusing to accept the complaint has caused Ms D some time and trouble as she has had to come to the Ombudsman for her complaint to be considered.

Back to top

Agreed action

60. Within a month of my final decision, the Council has agreed to apologise to Ms D for the uncertainty and time and trouble caused by fault. It should ensure its apology is in line with our guidance on remedies.
61. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

62. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman