Summary: The Council failed to act accordingly on some occasions when concerns were raised about Mr Y’s welfare, it failed to follow-up agreed actions and failed to provide Mr Y’s representative with timely information. It then delayed responding to his complaint

The complaint

1. Mr X complains the Council failed to properly assess his father’s care needs and failed to properly assess his stepmother’s ability to care for his father.

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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 significant injustice, or that could cause injustice to others in the future 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 submitted by Mr X;
• considered the correspondence between the Council and Mr X, including the Council’s final response to the complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Mr X and the Council the opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

Needs assessments

5. Sections 9 and 10 of the Care Act 2014 say councils must assess the needs of an adult who appears to need care and support. The council must do this regardless of whether it thinks the person has eligible needs and regardless of the person’s finances.
6. The statutory guidance at part 6 says a council must consider “the total extent of a person’s needs” before it “considers the person’s eligibility for care and support and what types of care and support can help to meet those needs. This must include looking at the impact of the adult’s needs on their wellbeing and whether meeting those needs will help the adult achieve their desired outcomes”.
7. After assessing the total extent of a person’s needs, the council should consider which are eligible needs under the Care Act 2014. The guidance says councils must consider whether:
1. The adult’s needs are due to a physical or mental impairment or illness.
2. The adult’s needs mean they cannot achieve one or more specified outcomes.
3. As a consequence of being unable to achieve one or more of the specified outcomes there is, or is likely to be, a significant impact on the adult’s wellbeing.
8. Eligible needs are those that meet all of these conditions (a-c).
9. The outcomes referred to in b) above include:

• maintaining personal hygiene,
• managing food preparation,
• maintaining a habitable home,
• maintaining significant relationships and
• accessing the community.

10. The guidance says: “being unable to achieve these outcomes” includes being able to achieve them with assistance or achieving them without assistance but where “it takes significantly longer than would normally be expected”.

Safeguarding

11. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

Mental Capacity

12. 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.
13. 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.
14. 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.

Background

15. This is not meant to be an account of everything that happened. I have focused on the material issues in the complaint.
16. Mr Y is 91 years old, and bed-bound. Alongside other health issues, he has a diagnosis of dementia. Before his admission to hospital in July 2022, Mrs Y was his sole carer. Mrs Y had agoraphobia and mental health issues.
17. The Council’s records confirm that Mr Y was admitted to hospital in July 2022, prior to this his care had been managed solely by his wife. On discharge from hospital the Council provided reablement care to assess his longer-term needs. After 10 days it became apparent Mr Y was not suitable for reablement care as he had long term care needs.
18. A district nurse also attended twice weekly.
19. Mr X says his stepmother, Mrs Y, has long standing mental health problems and she struggled to meet Mr Y’s increased care needs.
20. The Council completed a needs assessment in July 2022. This reported Mr Y to be bed-bound, and that four care visits a day were needed; a total of 35 care hours a week. A detailed care and support plan was completed.
21. Mrs Y was offered and declined a carers assessment.
22. Mr X says Mrs Y was not acting in Mr Y’s best interest, that she changed Mr Y’s dressings after a district nurse had undertaken this task and that Mrs Y refused offers of aids/equipment that would have benefited Mr Y. Mr X says these concerns were reported to the Council.
23. Mr X says he witnessed Mrs Y’s mental and physical health deteriorate and he witnessed her shouting at carers attending Mr Y.
24. The Council confirmed it received reports that Mrs Y ‘exhibits shouting behaviours’ when anxious and when people enter the home to care for Mr Y. It says following reassurance by carers Mrs Y did not interfere or block the carers in carrying out their duties. Mr X says this caused stress and distress for Mr Y, who in order to keep the peace, complied with Mrs Y’s wishes.
25. The Council reviewed Mr Y’s needs on 1 August 2022 and concluded the care was meeting his needs. A referral was made for physiotherapy and occupational therapy (OT). It has not explained how it addressed the concerns raised by the district nurse.
26. An OT assessment was completed on 16 August 2022. The district nurse and the carers were present. A nurse participated via a telephone. Mr Y was reported to be calm and relaxed. Mrs Y, was reported to have agoraphobia and experiencing stress at new people entering the home, including the carers. The OT instructed the carers on moving and handling Mr Y and recommended various aids along with a hospital bed with a pressure reducing mattress. The carers present reported they were struggling to care for Mr Y in the bed he was in. The OT reported space in the bedroom to be too small and recommended the bed be placed in another room. Mrs Y refused/The OT reported Mrs Y to be ‘emotionally unstable’.
27. I have seen no evidence to show if/how the Council responded to the OT’s concerns.
28. The records show Mr X contacted the Council on numerous occasions to express concerns for Mr Y. He says the Council failed to respond properly to his concerns and complaints, that no action was taken, and the status quo continued.
29. There appears to have been no involvement by the Council until 9 January 2023, when Mrs Y became unwell and was admitted to hospital. Mr X contacted the Council to request additional support. As he lives in another County, he went to stay with Mr Y to assess the situation and provide support.
30. Mr X contacted the Council to say Mr Y needed more care than he was receiving. The Council’s duty team provided Mr Y with an additional night visit and alerted the social services team responsible for his care. A social worker conducted a telephone review of Mr Y’s needs the following day and allocated an additional two care hours each week. The social worker concluded Mr Y had no overnight care needs.
31. The Council arranged for lifeline to be installed on 11 January 2023. It is unclear if/how the Council confirmed Mr Y would have the capacity to understand and use the lifeline service. Mr X confirms Mr Y has since used the service, but this was sometime later, after Mrs Y returned home and it was under her instruction, to alert the service that she had fallen.
32. A short while later, Mr X contacted social services again to request a residential care placement for Mr Y. He said both he and his brothers lived some distance away, and that they could only stay with Mr Y for a short amount of time. He said Mr Y was calling out during the night and trying to get out of bed and he was concerned about him being alone overnight when family were no longer present.
33. Mr X says the Council refused, saying respite care was unnecessary and that four calls per day were sufficient to meet Mr Y’s needs.
34. On 25 January 2023, Mr X contacted the Council to say the increased support was insufficent to meet Mr Y’s needs, that Mr Y was distressed and would call out for painkillers. He said Mr Y was disoirentated, confused and sought reassurance. Mr X reiterated that due to work committiments family could not continue to stay with Mr Y overnight. He again requested a residential care placement for Mr Y. Mr X says he was aware he could secure a private placement for Mr Y but he thought it best to involve the Council and obtain an accurate assessment of Mr Y’s needs to allow him to indentify the most appropriate placement for Mr Y.
35. The Council told Mr X it needed to reassess Mr Y’s care needs and establish his willingness to go into residential care, which would involve a formal assessment of his mental capacity. The Council recorded a discussion about charging, and Mr X declared Mr Y had capital well in excess of the financial threshold.
36. Mr X says the Council did not visit or reassess Mr Y’s needs, so he decided to source a residential placement privately. He informed the Council on 26 January 2023. He told the Council the chosen care home had advised him Mr Y required an NHS Funded Nursing Care (FNC) element to part fund the placement. The Coucnil arranged for an NHS FNC checklist to be completed.
37. Mr Y went into residential respite care on 27 Janaury 2023 under a private contractual agreement as a full cost payer.The Council paused the home care package.
38. Mr X contacted the Council again on 27 February 2023 to say Mr Y would be going home. The Council said the previous home care package would be reinstated and there was no evidence to show Mr Y’s needs had changed. Mr X is unsure how the Council came to this conclusion as a reassessment was not completed.
39. Mr X asked that a social worker be allocated to oversee Mr Y’s care and wellbeing after he returned home. The Council said it would ask the care agency to monitor the situation and raise any concerns about this.
40. Mr X says when Mrs Y was discharged from hospital her physical and mental health deteriorated further. Mr X contacted social services to ask that a social worker visit and reassess Mr Y’s situation. He says he reminded social services of previous concerns. Mr X says social services refused to visit and said carers would report any concerns.
41. In response Mr X’s concern, that Mrs Y was blocking carers in their duties, the Council contacted the care agency for an update. The care agency responded on1 March 2023, saying, “The carers that attend to [Mr Y] in the morning and evening said [Mrs Y] never interfere when caring for him. Carers added, [mrs Y] is kind and responsible toward the husband”. The Council asked the care agency to continue to monitor the situation. Charging was again discussed. The Council told Mr X that, at the point Mr Y’s funds fell below the financial threshold a review of his needs would be completed, and in accordance with the Care Act 2014, and all assessed eligible needs would be funded.
42. Mr X had concerns that carers were not accurately reporting the situation, that carers appeared not to take Mrs Y’s behaviour seriously. On one occasion he witnessed Mrs Y shouting racial abuse towards one carer, which the carers did not report to the Council, so he had little confidence in their reporting. Mr X was also concerned that carers appeared not to notice the ongoing deterioration in Mrs Y’s wellbeing.
43. Mr X contacted the Council to say he was unhappy with the care agency and requested information about other providers. This was not provided and Mr X along with Mrs Y sourced a different care agency independently. In response to enquiries from this office, the Council apologised it’s for failure to provide this information, saying, “This was a failure for the Community Health and Social Care [local team]. We are sorry for any distress this may have caused [Mr Y] and all his family. We apologise for not following the process; I can confirm that this has fallen below the expected service standards… all staff have been reminded that people funding all their care and support have a statutory entitlement to have support to source care providers and placements if required. We have discussed this in our Team Meetings and Catch-up Sessions and included this information in the Service Duty Process Protocol”.
44. Mr Y received further input from the Council’ rehabilitation team on two further occasions, with the aim of increasing his recovery. The care agency continued alongside the rehabilitation service.
45. The records confirm a safeguarding concern was raised on 20 April 2023 by the rehabilitation service after Mrs Y refused to allow equipment Mr Y needed to be delivered to their home. Following initial enquiries, the Council arranged for a social worker to conduct a welfare visit to establish Mr Y’s views and discuss the concerns in Mrs Y’s absence.
46. A Council’s records two visits, one on 20 April 2023 and a further visit on 30 April 2023. The notes of the visit of the 20 April record a social worker speaking with Mr Y in private. The social worker reported Mr Y appeared lucid, that he said he comfortable where he was, and he was not remaining in bed to keep his wife happy.
47. The notes of the 30 April visit, report a private discussion with Mr Y not to be possible because the carers and Mrs Y were present. The social worker recommended that either Mr X or the carers facilitate a meeting at a local office once Mr Y received a wheelchair. The social worker recommended a referral be made to Mr Y’s GP due to concerns about Mrs Y managing his medication.
48. The Council says it made also made enquiries of other relevant parties, including Mr Y’s GP.
49. A Mental Capacity Assessment (MCA) was completed by the rehabilitation service on 25 May 2023 to establish Mr Y’s ability to make informed decisions about being cared for in bed, and not sitting out in a chair. The minutes of this meeting show Mr & Mrs Y and Mr X to be present. A senior occupational therapist report that Mr Y “…consistently expressed wishes to sit out of bed using full hoist with support of carers. [Mr Y] changed his mind to remain in bed as [Mrs Y] has not been happy with equipment’s being at his home. [Mrs Y] has been observed to be aggressive towards [Mr Y] and therapists supporting [Mr Y] and can be emotionally coercive to influence [Mr Y’s decision to remain in bed”. The rehabilitation team supporting Mr Y reported Mrs Y to be agitated and not happy with the continuing assessment of Mr Y, and that Mr Y just agreed to what Mrs Y said. Mr X reported his view, that Mrs Y appeared to emotionally coercive towards Mr Y. The rehabilitation service reported that Mr Y had the ability to recover if he engaged with therapists and carers.
50. The assessment concluded Mr Y had fluctuating capacity, but he lacked capacity to make an informed decision about being cared for in bed.
51. I have seen no evidence to show how the Council addressed the allegations of coercive control and/or arranged a meeting away from the family home as previously recommended.
52. In June 2023, carers raised concerns about Mr Y having a black eye which neither Mr nor Mrs Y could explain.
53. The Council convened a multi-disciplinary meeting on 15 June 2023. The minutes show the Council “advised [Mr Y’s] son to seek advice via the family GP with regards to this concern and carers continue to monitor [Mr Y] and the situation within the family home. A senior OT sent an email to social services asking that a social worker be allocated to address the concerns and complete a ‘support needs assessment’. An action plan was agreed. This included:

• Mr X, along with Mrs Y, would support Mr Y moving into the lounge so that all his required equipment could be accommodated and used safely;
• The rehabilitation service would consider a referral to support Mr Y with his equipment move, implement a sitting plan, and assess additional rehabilitation therapy.
• The district nursing service would continue monitoring Mr Y’s pressure areas and support clinical observations after his move into the Lounge.
• A request was made for a reassessment of Mr Y’s care and support needs and for a Social Worker to be allocated to work with Mr Y.

54. Mrs Y offered a carers assessment, which she declined.
55. In response to my enquiries the Council confirmed that Mr Y had not moved into the lounge, that he remained in the bedroom, that Mrs Y had taken delivery of some equipment, but a ‘tilt’ chair had not been delivered due to limited space.
56. The district nursing service conducted another MCA of Mr Y on 2 July 2023 to establish if he understood the complications and risks of declining to get out of bed. This concluded Mr Y was able to understand and relay information back to the nurses and was able to provide a rationale for his decision-making.
57. Mr X cites the findings of the previous MCA, which showed Mr Y to have fluctuating capacity and that the assessment on 2 July 2023, could have been one of his better days. He also says the assessment did not take account of the coercive influence from Mrs Y, and although she may not have been present in the room, Mr Y would have been aware of her presence in the background.
58. I have had sight of an email the Council sent to a senior OT in November 2023. The Council confirmed it was aware of reports that Mr Y had a black eye and that Mr X had been advised to see advice from Mr & Mrs Y’s GP and said that carers continued to monitor the situation. The Council went on to say “…that as [Mr Y] has a privately arranged package of care that appears to be going well… A social worker will not be allocated to [Mr Y] to carry out a care and support needs assessment or to oversee the process of [Mr Y] moving into the Lounge of the family home, as discussed at the Best Interest Meeting… the safeguarding concern that you raised 20/04/23. Following initial enquiries and discussions with [Mr Y] and all relevant parties and all actions being completed for the concerns raised. The Safeguarding process has been completed and has been closed”.
59. Mr X says the Council took no action to safeguard Mr Y from further injury or to ensure his bed was moved into the lounge.
60. The Council says Mr Y funds his home care privately, which the Council is not involved with. It says Mr Y also receives ongoing support from the district nursing service.
61. Mr X had concerns about the funding of Mr Y’s care should his funds fall below the capital threshold. Mr X submitted formal complaints to the Council about how it was dealing with his concerns about Mr Y’s wellbeing and about Mrs Y’s ability to support him. The Council responded to Mr X in writing on 13 September 2023. The author of the letter apologised for the delayed response and acknowledged this was below the Council’s expected standards.

Analysis

62. There are numerous issues that need consideration here, whether the Council properly assessed Mr Y care needs and whether it properly considered the concerns about coercive control from Mrs Y. I do not need to address the issue of the Council’s communication with Mr X as it acknowledged fault in its final complaint response letter. It also acknowledged that services users funding their care privately are entitled to support to source home care providers and residential care placements.
63. I find numerous failings by the Council in this complaint.
64. I find the Council failed to act accordingly when concerns were raised about Mr Y’s welfare from July 2022 onwards. This left him vulnerable to coercive influence from Mrs Y, who, the records confirm was not always acting in Mr Y’s best interest.
65. The Council failed to properly assess Mr Y’s care needs when Mrs Y was admitted to hospital. Mr X made clear the family’s presence overnight was temporary and that Mr Y was needing support through the night. The Council told Mr X it needed to reassess Mr Y’s needs and complete an MCA to determine his understanding and consent to a residential respite placement. It failed to do so, and Mr X subsequently sourced a placement for Mr Y privately. Had Mr X known sooner that the Council would not be reassessing Mr Y’s needs then Mr X could have sourced a placement sooner.
66. The Council also failed to properly reassess Mr Y’s needs before he left the care home to return home. The Council told Mr X that Mr Y’s needs had not changed. Without a full reassessment it could not know what his exact needs were. This was a missed opportunity for the Council to gather an accurate picture of Mr Y’s needs and his understanding/wishes of the home situation, without Mrs Y’s involvement. It failed to do so.
67. The Council has a duty to protect vulnerable adults at risk, it is clear Mr Y was vulnerable and his capacity to make decisions about his care needs fluctuated. Alongside this, there was concern about coercive control from Mrs Y, and the report of an unexplained injury which had caused Mr Y to have a black eye. These concerns did not come just from Mr X, but from a senior OT and district nurse both closely involved with Mr & Mrs Y.
68. The Council failed to give due weight to this information. Instead, it asked carers to monitor the situation when it should have completed a risk assessment and implemented a robust plan to oversee Mr Y’s wellbeing. A named worker should have been allocated to monitor the situation.
69. The Council placed to too much emphasis on reports from carers and failed to question the events reported by the OT during which the carers were present. It was evident the carers were not accurately reporting the home situation as they failed to report racial abuse from Mrs Y, which Mr X personally witnessed.
70. The Council also failed to acknowledge the context of the second safeguarding investigation. Although Mr Y presented as having insight into his situation, the previous capacity assessment found his capacity to fluctuate, and no consideration of the possible influence from Mrs Y, who as present in the home at the time appears to have been given.
71. The Council failed to follow-up on a social worker’s recommendation that a meeting with Mr Y be held away from the family home.
72. The Council failed to follow-up the agreed actions from a best interest meeting, one of which was to move Mr Y’s bed to another room to enable him to have all the necessary equipment. Mr Y’s bed was not moved and consequently he was unable to have a specialist ‘tilt’ chair that would have allowed him to sit out of bed. Consequently, he remained in bed.

Current situation

73. Mrs Y sadly passed away a few weeks ago. Mr Y now remains bed-bound at home with a privately funded care package in place. Mr X believes Mr Y needs a full reassessment of his needs to reflect the change in his circumstances.

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Agreed action

74. Within three months:

• consider any learning and training needs in respect of coercive control;
• provide this office with evidence it has complied with the above actions.

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Final decision

75. There is evidence of fault by the Council in this complaint.
76. The above recommendations are a suitable way to settle the complaint.
77. It is on this basis; the complaint will be closed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman