Summary: The Council acted appropriately to assess Mrs X’s mental capacity once it was aware she was placed in the care home for respite as a self-funder. It was not the fault of the Council that there was a dispute about her possessions.

The complaint

1. Mr A (as I shall call him) complains the Council did not properly assess his elderly mother’s capacity to make her own decisions before her placement (at her own cost) in a care home, even though she had previously said this was against her wishes. He says the person who made the arrangements for her placement had no authority to do so.

Back to top

The Ombudsman’s role and powers

2. 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’. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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

4. I considered the information provided by Mr A and by the Council. We spoke to Mr X. Both parties had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

Back to top

What I found

Relevant law and guidance

5. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes 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.
6. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success

7. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
8. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

9. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
10. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.
11. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
12. If there is a need for continuing decision-making powers and there is no relevant EPA or LPA, the Court of Protection may appoint a deputy to make decisions for a person.
13. The Deprivation of Liberty Safeguards 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 obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation.
14. Once a standard deprivation of liberty authorisation has been given, supervisory bodies must appoint a relevant person’s representative (RPR) as soon as possible and practical to represent the person who has been deprived of their liberty. The role of the relevant person’s representative, once appointed, is to maintain contact with the relevant person, and to represent and support the relevant person in all matters relating to the deprivation of liberty safeguards, including, if appropriate, triggering a review, using an organisation’s complaints procedure on the person’s behalf or making an application to the Court of Protection.
15. The supervisory body may pay a person they select to be the relevant person’s representative where no other suitable person is available for reasons of conflict of interest, for example.

What happened

16. Mrs X was living alone prior to entering the care home. She has five adult children, three of whom live locally to her, two of whom provided support to Mrs X. Mr A, her son who lives elsewhere, has a joint bank account with Mrs X. Mrs X is registered severely sight impaired and hearing impaired. The Council’s records since 2019 state she has dementia although Mr A says he does not believe there was a formal diagnosis. No-one has power of attorney for Mrs X’s affairs.
17. The Council’s records show contact in July 2021 from Mrs X’s daughter in law. She said they were looking for a care home placement for Mrs X as the daughter who provided most care was going abroad in October for some time and they would struggle to provide Mrs X with sufficient care. The duty social worker who took the call explained that as the records said Mrs X did not wish to enter care, the Council would have to assess her capacity to make that decision. The notes say, “I also made her aware that the family have no legal rights to make decisions around the decision to enter residential care on (Mrs X)'s behalf. I thought I had better update you on the situation as I am concerned that family may take matters into their own hands.”
18. The Council’s community wellbeing team screened the referral on 17 August and placed the referral on an allocation waiting list for a social worker to visit Mrs X and assess.
19. On 6 September the social work team took a further call from Mrs X’s family indicating they had made a private arrangement to place her in a care home the following day, initially for a respite period of four week while they were away. The community wellbeing worker noted, “there are concerns about her capacity and no-one holds LPA”. A social worker confirmed with the home that the placement had been made privately by the family (Mr X says the signatory on the contract for the home was his brother’s partner, and therefore no relation to his mother.) She told the home manager that it needed to ensure it applied for a DOLS authorisation if Mrs X lacked capacity to consent to the placement herself. The home submitted an urgent request for a DOLS authorisation.
20. Mr A contacted the Council on 22 September. He said he was concerned as he had not known of the care arrangement until he was asked (as joint account holder) to pay for the four-week respite period. He said the family dynamics were “complex” and he was concerned what would happen at the end of the respite period. He says he told the social worker the total amount in the account and made it clear it was a joint account.

The capacity and DOLS assessments

21. In response to the care home application for a DOLS authorisation, a Best Interests Assessor (BIA) visited Mrs X in the care home on 8 October in the afternoon. She assessed that Mrs X lacked capacity to make her own decisions about her future care and residence and that a DOLS authorisation was appropriate.
22. A social worker visited Mrs X in the care home on 19 October. She noted that Mrs X was aware of her surroundings, but stated she wanted her daughter (currently abroad) to be present at any care assessment and did not feel she could manage at home on her own while her daughter was on holiday. Mrs X said she wanted her son Mr A to continue managing her finances. The social worker noted that in her view Mrs X had capacity to make her own decision about her care and future at the home. Mr A says his mother was lied to by his siblings about why and for how long she was going to stay in the home.
23. The social worker spoke to Mr A and explained what Mrs X had said. Mr A told the social worker he thought Mrs X had not been properly consulted before the placement was made. He said he was happy she was settled for the moment but felt there should have been an assessment first: the social worker explained the arrangement had been made by the family privately. The social worker also discussed with Mr A the option of applying for power of attorney.
24. The social worker and the BIA discussed their differing views of Mrs X’s capacity. The BIA then discussed the differing capacity assessments with a senior DOLS social worker and the care home manager: both felt that a short DOLS authorisation, with a paid Relevant Person’s Representative (RPR) would be appropriate. Mr A disputes the legitimacy of the social worker’s capacity assessment.
25. When the DOLS authorisation was due for renewal, the Council’s records show the social worker spoke to the BIA appointed to assess Mrs X again. The social worker explained that the previous BIA had assessed Mrs X late in the afternoon when her capacity was at its least reliable. She acknowledged however that Mrs X’s condition was deteriorating. The BIA assessed Mrs X and approved a further DOLS authorisation.

Removal of possessions from Mrs X’s home

26. Mr A contacted the Council at the end of November, but his message was not seen and responded to until January 2022. He asked for more information about charging, the DOLS assessment and the possibility of NHS continuing healthcare (CHC) funding. The social worker responded.
27. Mr A also then asked if anyone had given permission for his sister to empty his mother’s home of her possessions; if an NHS assessor would complete the CHC assessment and why there was a dispute about Mrs X’s capacity.
28. The social worker replied. She sent Mr A a draft checklist she had completed for the CHC assessment and gave him the contact number of the NHS CHC assessment team. She explained the circumstances of the capacity assessments and said “If I am made aware that someone is fluctuating in their capacity and the DoLs team aren't aware of this I needed to inform them. As they were just finishing processing the application they decided to proceed on their assessment with a DoLS authorisation but considering the information I had provided them review in 2 months. The DoLs capacity decision is separate one to mine, it is about the restrictions in the home, not about residency.” Finally, she confirmed that the Council did not have any responsibility for Mrs X’s possessions. She said “No one currently has any legal authority over your mother's possessions with no LPA in place nor deputyship.”
29. The social worker had further contact with Mr A who said he had spoken to the police about the removal of Mrs X’s possessions, who told him it was a civil matter. The social worker then contacted Mrs X’s daughter who had made the care home arrangements. Mrs X’s daughter said they had removed all except the bulky items from Mrs X’s house as the owner wanted it vacant. She said they had taken a lot of the items to a charity shop but had not decided what to do with Mrs X’s jewellery. The social worker advised that as there was no legal authority in place for Mrs X’s affairs, they should have sought guidance before disposing of possessions.
30. The case recording shows the social worker discussed the matter with her manager and advised Mr A to contact the Citizen’s Advice Bureau or obtain his own legal advice. Mr A said he would make a safeguarding referral. The social worker confirmed that the Council would not get involved in the removal of Mrs X’s possessions from the property. She said she would undertake an assessment of Mrs X’s capacity to make her decisions about her finances and if she lacked capacity, the Council would need to insist there was some formal legal representation of their management.
31. The social worker visited Mrs X on 16 February 2022 to discuss the management of her finances; she then carried out a capacity assessment on 3 March and concluded she lacked capacity.
32. The Council carried out a financial assessment on 20 July 2022 but was unable to complete it until it had proof of Mrs X’s capital: Mr A said the amount in Mrs X’s bank account should be divided three ways (between Mrs X, himself, and his sister whose name was also on the joint account). The assessor wrote to him and confirmed proof was needed of Mrs X’s financial position on entering permanent residential care or she would be regarded as a full cost payer.

The complaint

33. Mr A complained to the Council. He complained about the lack of a care needs or capacity assessment or Mrs X’s proper involvement before the placement was arranged. He complained no other homes were offered. He asked why all Mrs X’s children were not consulted and why his brother’s partner had been allowed to sign the consent forms for admission. He complained the Council had not considered the removal of Mrs X’s possessions from her home as a safeguarding matter. He complained about the different capacity and DOLS assessment findings. He asked why the Council had not appointed an advocate for Mrs X.
34. The Council appointed an Independent Investigating Officer (IIO).
35. The IIO did not uphold the complaint that the Council had failed to assess Mrs X’s needs before the placement began. She said the notification about the family’s desire for a care home placement for October had been made in July; Mrs X had been placed on a waiting list for assessment, but the placement arrangement had been made privately at the beginning of September and the Council notified the day before Mrs X was admitted. It had not been practicable to carry out the assessment.
36. The IIO partially upheld the complaint that the Council had not assessed Mrs X’s capacity to consent to the care home placement, despite the awareness of her previous wishes. She said the timescale had made it difficult to do so but drew attention to the unexplored possibility of talking to Mrs X via a zoom call or discussing with the home management at an early stage how she had settled.
37. The IIO did not uphold the complaint that Mrs X was not involved in the decision making. She said “The privately arranged respite outside of the proposed timeframe, resulted in the local authority not having the opportunity to commence their assessment process, and therefore the responsibility would lay with the family to act in (Mrs X)’s best interests and speak with (Mrs X) about her admission to respite care.”
38. The IIO did not uphold the complaint about a lack of choice of care homes: she said this was Mrs X’s family choice and the Council did not have the opportunity to be involved. She pointed out however that when the placement became permanent there was evidence Mrs X had been consulted and was happy with the placement: a decision confirmed by her independent advocate.
39. The complaint that not all Mrs X’s children had been consulted about the placement was not upheld: the IIO quoted evidence from the BIA report which showed proof of consultation about the permanent placement. She did not uphold a complaint about the consent form signatures as the arrangement for respite had been made privately and was a matter for the care home to answer.
40. The IIO did not uphold the complaint that the Council had not safeguarded Mrs X’s possessions as the available evidence showed they had probably been removed from the property before the Council was actively involved.
41. In respect of the differing capacity assessments between the social worker ad the DOLS BIA assessors, the IIO concluded the social worker’s actions had been appropriate and well-documented. The differences between the purpose of the different assessments had been explained.
42. Finally the IIO did not uphold the complaint that an advocate had not been appointed. Mrs X had wanted her daughter to act as her informal advocate but in any event, there was formal advocacy in place as well. Mr A points out his concern was that an advocate had not been present at the meeting between the social worker, Mrs X and his sister.
43. The IIO concluded that “lessons can be learnt moving forward especially around appropriate communication to individuals when the demands for assessment received by teams may delay the start of the assessment process for individuals. However, the circumstances of this particular case suggest the family made private arrangements around respite care for (Mrs X) as a family decision, not as a response to a delay in the assessment process being initiated by the team”.
44. The Council wrote to Mr A in January 2023 indicating it agreed with the findings of the IIO.
45. Mr A complained to the Ombudsman. He said the Council had “rubber-stamped” the decision made by some of his siblings to place his mother in care against her wishes and exonerated its employees. He says on the day Mrs A was placed in the care home, “two of my siblings secured the property and my mother’s possessions within it and denied me access. They subsequently disposed of those possessions.”

Analysis

46. The decision to place Mrs X in the care home was taken by her family and the Council notified the day before. That was much sooner than the Council had been led to believe. It was not fault on the part of the Council that it was unable to carry out an assessment within the timescale now involved. Mrs X funded her own placement, and it was within the rights of the family to make a private arrangement.
47. The Council’s records evidence the different conclusions reached about Mrs X’s capacity, not least in respect of the time of day she was assessed. There is evidence that each assessment was carried out appropriately.
48. It was not the role of the Council to involve itself in the family dispute about the removal of possessions from Mrs X’s home. The social worker consulted appropriately and advised on a course of action.
49. The Council ensured the proper investigation of the formal complaint.

Back to top

Final decision

50. I have completed this investigation on the basis there is no evidence of fault on the part of the Council.

Back to top

Investigator's decision on behalf of the Ombudsman