Summary: Miss C complained that the Council moved her mother, Mrs E back to a flat without care or support and without carrying out the proper assessments or informing Miss C. Mrs E was found in the property shortly afterwards having fallen and been on the ground for some time. The flat was without heating, hot water, food or bedding. Mrs E was admitted to hospital and Miss C experienced significant distress and inconvenience in trying to resolve the matter. We have found the Council was at fault for moving Mrs E without carrying out a care needs assessment or a mental capacity assessment, for a lack of management oversight and for failing to involve or inform Miss C in the decision. The Council has agreed to apologise to Miss C, pay her some money and improve its procedures for the future.

The complaint

1. Miss C complained that the London Borough of Hackney (the Council) moved her mother (Mrs E) back to her son’s flat (where she did not hold a tenancy) without carrying out a care needs assessment or mental capacity assessment and without informing Miss C, her next of kin. It also failed to provide any care or support or to provide any follow-up checks on her welfare. Mrs E was found in the property shortly afterwards: she had fallen and was without gas, heating or food. She was admitted to hospital and Miss C was caused significant distress and frustration in trying to find out what had happened.

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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’. 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)
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)

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How I considered this complaint

4. I have considered the complaint and the documents provided by the complainant, made enquiries of the Council and considered the comments and documents the Council provided. Miss C 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

Mental Capacity Act

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.

Mental capacity assessment

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?

Best interest decision making

9. 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. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.

What happened

10. In January 2022 the police found Mrs E on the floor of her flat and believed she had been there for several days. The police took her to hospital and notified the Council due to safeguarding concerns. She was diagnosed with dementia. On her discharge from hospital, the Council moved her to interim accommodation (Home1) with a care package of two visits a day. The Council also recommended domestic help given the state of the flat when she was found.
11. Mrs E’s son also had the tenancy of a flat. He had moved into 24 hour supported living. In February 2022 Mrs E said she wished to return to her son’s flat as she didn’t like Home1. The Council had concerns that Mrs E wasn’t looking after herself properly. The social worker spoke to Miss C who said Mrs E could be quite challenging and was constantly washing clothes and bedding, hence they were always wet and she didn’t have any fresh clothes. Mrs E started to refuse the care visits.
12. In May 2022 the Council carried out a care act assessment. They involved Miss C and concluded Mrs E needed 3 visits per day.
13. In June 2022 the Council recommended carrying out a mental capacity assessment (MCA) to see if Mrs E had the capacity to make decisions about her care. Initially she said she wanted to stay at Home1.
14. In July 2022 Home1 tried to complete an assessment but was unable to complete it due to Mrs E’s confusion. By August 2022 Mrs E was refusing care completely. She said she wanted to go back to her son’s flat and denied ever saying she wanted to remain at Home1. The social worker spoke to Miss C who was liaising with the GP about her condition.
15. At the end of September 2022, the case was allocated to a new SW (SW2). She recognised that Mrs E had a cognitive impairment, but she concluded Mrs E was able to move back to her son’s flat. Mrs E said she had charged the gas and electricity and had keys. The landlord confirmed he could move back and arranged for her belongings to be taken out of storage. SW2 recorded in the notes that Mrs E:

“has no care and support needs and clearly said that she would not like Social Services to support her. She is an independent lady with marked cognitive impairment in concrete thinking.”

16. Mrs E moved back to the flat on 7 November 2022. SW2 had not informed Miss C and she returned from holiday to discover her mother was no longer in Home1 and she had no idea where she was. She contacted SW2 who informed her that Mrs E had moved back to the flat and that SW2 did not have to speak to Miss C because Mrs E had capacity to make decisions for herself.
17. Miss C went to the flat and found that her mother had fallen and was unable to get up. She called the police who gained entry to the flat. Mrs E had been on the floor for some time and was soiled and upset. She was admitted to hospital and the Council started a safeguarding investigation due to the concerns about the state of the flat: there was no heating or hot water, there was unfinished food and dirty clothing everywhere, the fridge was empty, the oven did not work and there were no sheets or pillows on the bed.
18. SW2 responded the safeguarding investigation saying that when Mrs E moved back to the flat, she did not need a pendant alarm. She was mobilising independently and was able to access the community. She said Mrs E showed traces of a cognitive impairment but at the time of the move she was capable of making an informed decision. She said she had considered a package of care but Mrs E was too independent and had good informal networks of support. Mrs E had refused offers of domestic support.
19. During this period Miss C discovered Mrs E was in hospital. She made a complaint about how the Council had allowed Mrs E to return home with no support, to a flat for which she did not hold the tenancy and which had no heating hot water or food.
20. The Council reallocated the case to a new social worker on 21 November 2022 to decide where Mrs E should live, once she was discharged from hospital. The social worker completed an MCA which concluded Mrs E had a permanent cognitive impairment and she lacked the capacity to make decisions about her care. The Council made a best interests decision that she needed a 24 hour permanent placement in a dementia registered care home. On 1 December 2022 Mrs E was discharged to a care home (Home2).
21. Miss C met with the Council on 20 December 2022 regarding her complaint. It said:
• Mrs E should not have returned to the flat without a new care needs assessment or an MCA or any follow-up welfare checks.
• The flat was without heating and there were a number of boxes which Mrs E could not unpack. She also did not hold the tenancy of the flat.
• Miss C should have been informed of the move
• The safeguarding investigation would not be completed until a new care needs assessment and MCA had been carried out and Miss C would be involved.
• Miss C agreed to apply for Deputyship but warned there were long delays with the Court of Protection in dealing with the applications.
• The Council agreed to refund the storage costs Miss C had incurred in storing Mrs E’s belongings and to take steps to prevent similar situations recurring.
22. The MCA confirmed that Mrs E lacked capacity to make decisions about finance and long-term care. The care needs assessment concluded she should stay at Home2 and Miss C would apply for deputyship.
23. The Council confirmed in February 2023 that it would pay the storage costs after Miss C said she was receiving overdue reminders for payment. Miss C made a formal complaint in March 2023. On 30 March 2023 the Council paid £770 in removal and storage costs.
24. The Council responded to Miss C’s complaint in April 2023. In respect of the safeguarding investigation, it said the concluding report should have been shared with Miss C and the Council would do so now. It also said that the service complained about should not be the one to conduct the investigation.
25. It agreed the Council made errors in transferring Mrs E back to the flat without the necessary assessments or follow-up checks. The Council had agreed to refund storage and removal costs as recompense.
26. It agreed that SW2 should have checked with Mrs E whether she consented for SW2 to discuss Mrs E with Miss C and made a record of her response. The Council said SW2 was satisfied that Mrs E had capacity at that point to make the decision to move back to the flat. However, the Council when looking at the history of the case, felt a formal MCA should have been done and recorded. It partially upheld the complaint.
27. Miss C was not satisfied with the response and complained to us.

Analysis

28. I agree the Council was at fault in not carrying out a care needs assessment or a mental capacity assessment before deciding that Mrs E could move back to her son’s flat without care and support. Given the events since January 2022 when Mrs E had fallen, been diagnosed with dementia and had demonstrated fluctuating capacity combined with challenging behaviour, I consider the Council should have carried out thorough assessments over a period of time to properly gauge Mrs E’s capacity and care needs. SW2’s conclusion that Mrs E had capacity to make decisions about her care, had no need of care and support and was not at risk of falls seems to conflict with the evidence in her care records that she was at risk of falling and self-neglect if left without care and support.
29. If the Council had ensured assessments were completed, they would have needed management oversight before being implemented. This process would have provided the opportunity for the Council to review the course of action proposed for Mrs E and may have prevented the self-neglect and second fall.
30. The Council should also have included Miss C in the assessment process and recorded her views. If SW2 had concerns about whether Mrs E had given consent to release information to Miss C, she should have carried out an MCA and reviewed the historical events on file. The failure to include Miss C meant she was caused distress and inconvenience when she realised Mrs E was no longer at Home1 and found she had fallen in the flat while alone without any support. It also meant her views were excluded from SW2’s assessment of Mrs E’s capacity and ability to look after herself. This was fault which caused harm to Mrs E in addition to the distress to Miss C.
31. The Council also delayed in paying the storage costs. Despite agreeing to do so in December 2022 it did not pay them until 30 March 2023. During the intervening three months Miss C received reminders for payment which caused her distress.

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Agreed action

32. In recognition of the injustice caused to Miss C and Mrs E, I recommended the Council, within one month of the date of my final decision:
• apologises to Miss C;
• pays her £400 for the distress and inconvenience she was caused; and
• pays her £500 to be used for the benefit of Mrs E’s wellbeing and recovery following the stressful events of November 2022.
33. I also recommended that the Council within two months:
• reviews its discharge procedures to ensure that no service user is moved out of interim accommodation or hospital until the appropriate assessments have been completed and signed off by a senior member of staff;
• reminds staff of the importance of involving family members in assessments and discharge planning; and
• reminds staff that where there are concerns about consent and/or capacity that further advice is obtained about carrying out an MCA over a period of time and/or making a best interests decision.
34. The Council has agreed to my recommendations. The Council should provide us with evidence it has complied with the above actions.

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Final decision

35. I consider this is a proportionate way of putting right the injustice caused to Miss C and Mrs E and I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman