Summary: Ms T complained the Council failed to provide suitable adult social care support to her friend, Mr Z, after his main carer died. The Council delayed making clear best interests’ decisions, failed to decide who should take over deputyship of Mr Z’s financial and property affairs and failed to put in place bereavement support. There was no fault in how the Council assessed Mr Z’s mental capacity and it was not at fault for the placing Mr Z in residential care for three weeks, as this was appropriate action to take in urgent circumstances. The Council’s faults have caused Mr Z uncertainty and in recognition of this, the Council has agreed to apologise, pay Mr Z £600, and carry out service improvements.

The complaint

1. Ms T complained the Council failed to provide suitable adult social care support to her friend, Mr Z, after his mother and main carer died. She said the Council:
1. Failed to properly consider Mr Z’s mental capacity and who was a suitable representative for him;
2. Failed to give proper consideration to Mr Z’s care needs, including whether he required residential care, how many care hours he needed and who should be Mr Z’s carer;
3. Failed to ensure Mr Z’s finances were in order, leaving him without access to benefits and unable to pay his bills or purchase food for several months;
4. Failed to put in place mental health support for Mr Z after a traumatic event;
5. Arranged care for Mr Z which was of a poor standard, with issues including not having his medications collected and being ignored by care staff;
6. Avoidably exposed Mr Z to COVID-19 when a member of council staff attended the property knowing they had tested positive for the illness recently; and
7. Delayed investigating her complaint.
2. Ms T said the Council’s actions have caused distress to Mr Z and his family.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. 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. (section 26A or 34C, Local Government Act 1974)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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

9. I considered the information provided by Ms T and the Council.
10. I considered the relevant law and guidance as set out below.
11. I considered our Guidance on Remedies.
12. I considered comments made by Ms T and the Council on draft decisions before making a final decision.

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What I found

Law and guidance

Care needs assessments

13. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support.
14. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.

Mental Capacity Act

15. 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.
16. 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.
17. 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

18. 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.
19. 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?
20. 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.

Best interest decision making

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.
22. The decision-maker must 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.
23. 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.

Court of Protection

24. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
25. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way.
26. The Court of Protection can take any of the following actions:
• decide whether a person has capacity to make a particular decision for themselves;
• make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
• appoint deputies to make decisions for people lacking capacity to make those decisions.

Appointeeship with the Department for Work and Pensions (DWP)

27. A friend or family member can become an appointee for someone with the DWP if they have difficulty managing their benefits independently. The appointee can manage that person’s meetings and paperwork in relation to their benefits.
28. However this is a separate process to Power of Attorney or Deputyship, as these are court appointed, and this enables someone to manage a person’s money directly on their behalf.

What happened

Consent

29. Based on the documents seen in this investigation, Mr Z most likely does not have capacity to consent to Ms T or Mr X representing him in this complaint.
30. We decided to investigate this complaint. This is because Mr Z most likely lacks capacity to raise a complaint himself and we wanted to ensure Mr Z did not lose the opportunity to have significant complaints made regarding his care and welfare investigated by an impartial service.
31. In recognition of Mr Z’s limited capacity and in the interests of protecting of his personal data, my decision refers only to events which the representatives in this complaint are already aware of, or were involved in, to protect Mr Z’s personal information.

Background

32. Mr Z has a physical disability. He also has issues around mental capacity.
33. At the beginning of this complaint period, Mr Z received 28 hours of care per week from a care worker who attended his home, where he lived with his mother.
34. His mother then provided wrap around care at evenings and weekends. He also attended a day service for one day each week.

Key events - Mr Z’s care

35. In November 2022 Mr Z’s mother died suddenly. Emergency services were called and they made a referral to adult social care for Mr Z, who was at home with his mother when this happened.
36. On the same day, the Council took an urgent decision that Mr Z lacked capacity and had significant care needs. Shortly after, the Council moved Mr Z into temporary respite in a residential care home. The Council also increased the time he spent at the day service, as Mr Z was familiar with staff there.
37. The social worker contacted Mr Z’s relatives. These relatives contacted Mr Z’s father, Mr X, who lived abroad. He returned to the UK as he wanted to provide care and support to his son.
38. Several days after Mr Z’s mother died, Mr Z’s social worker met with Mr Z at the care home to “gather his view on how and where his care needs are met”. The social worker recorded that Mr Z can communicate immediate needs but lacked capacity to make complex decisions around his care.
39. As his relatives said they could not provide ongoing care for Mr Z and his father was still in the process of travelling back to the UK from abroad, the Council took a best interests decision that Mr Z’s urgent care and living arrangements in respite would continue for two more weeks.
40. Mr Z returned to his home at the end of November. The Council arranged 24 hour live-in care which was provided by Kumari Care. The social landlord agreed Mr Z could stay at the property where he had lived with his mother, pending a deputy being put in place to help him take over the tenancy, as he did not have capacity to manage this himself.
41. By this time his father, Mr X, was living with Mr Z and sleeping on the sofa. During the late November visit, the social worker assessed Mr Z’s wishes regarding his father being his main carer and living with him at the property. The social worker decided this was a complex decision that Mr Z was struggling with and which he did not have capacity to make.
42. On 16 December 2022, the social worker carried out a mental capacity assessment with Mr Z to decide who should live with him and be his main carer. The social worker asked if he wanted his father to be his carer but recorded Mr Z could not retain, use or weigh the information to make a decision. The social worker decided he lacked capacity and a decision would be made in his best interests instead.
43. However the record is then unclear regarding what best interests decision was taken following this assessment and Mr X continued living with Mr Z and providing care to him.
44. In January 2023, the social worker made a referral for Mr Z to have an independent advocate.
45. The Council then attended Mr Z’s home on 23 February to carry out a care needs assessment with Mr Z. This was the first care needs assessment carried out since his mother died. Mr Z was assigned an independent advocate by this time but the advocate was not included in this assessment.
46. The Council decided Mr Z needed support to meet multiple outcomes under the Care Act, including but not limited to:
• Managing and maintaining nutrition;
• Maintaining personal hygiene; and
• Maintaining a habitable home environment.
47. The Council decided through this assessment to reduce the package of care being provided to Mr Z in his home due to support being provided by Mr X.
48. It noted Mr Z had been assessed as not having capacity to make long term decisions regarding his property and finances and it had advised Mr X to apply for deputyship with the Court of Protection, as he wanted to manage his son’s affairs.
49. Ms T made a complaint to the Council in January on Mr X’s behalf.
50. In late February 2023 the live in care package ended and Mr Z started to receive four hours of care each day from another care provider. I have reviewed the care records from the end of November 2022 to mid-February 2023 completed by the live in care provider, Kumari Care. The records only show care workers administering medication to Mr Z once and querying about his prescription twice. This despite Mr Z requiring medications multiple times a day and these care workers working with him for several months.
51. The Council responded to Ms T’s complaint in August 2023. It did not uphold Ms T’s complaints other than her complaint about the lateness of its response.

Key events - Mr X’s benefits and deputyship

52. Mr Z’s mother was his appointee for benefits. Approximately one month after her death, Ms T applied to the Department for Work and Pensions (DWP) for Mr Z’s father to become the appointee for his benefits. This was approved by the DWP around three months later. During that time, Mr Z had no benefits.
53. In February, when Mr Z’s benefits still had not been reinstated, the social worker arranged a food bank parcel for him, which contained out of date food. After this, it was decided food bank parcels weren’t appropriate for him. Mr Z’s only income during this time was cash being provided for his living expenses by relatives.
54. In late February the DWP approved appointeeship over Mr Z’s benefits. However all of Mr Z’s benefits were not reinstated from this time. So the Council arranged for a benefits service to assist Mr X with this in late March. Mr Z’s benefits were fully reinstated by that time.
55. By late March, Mr X still had not applied for deputyship with the Court of Protection. Mr Z still had no deputy in place despite him lacking capacity to make several key decisions regarding his care and where he lived.
56. Mr Z’s tenancy was still insecure at this time as the landlord required a deputy to be appointed before it allowed Mr Z to take over the tenancy. The Council chased Mr X for an update on this for several months.
57. Mr X initially said he was delayed applying for deputyship, because he required support from a friend to make the application. However by June 2023 Mr X’s friend said he did not have to apply for deputyship to manage Mr Z’s affairs. Mr X still has not applied for deputyship.

Key events - bereavement support

58. Shortly after Mr Z’s mother died, the social worker had considered whether he may need bereavement support and decided that maintaining consistency in routine was key and so was not appropriate to put in place at that time.
59. The Council then did not consider Mr Z’s needs around bereavement support again until around seven months later when it sent a letter signposting to bereavement services in June 2023. Ms T said the family did not receive this letter. The Council’s case records state that it was sent on this date and it has provided us with a copy of the letter.

Key events - concerns regarding Covid-19

60. In December 2022 Mr Z’s relatives were concerned when a social worker attended the home after having recently tested positive for COVID-19. The social worker said by that time they had tested negative but wore a mask when asked. The social worker did not provide evidence of a negative test.

My findings

Urgent residential care placement

61. Following Mr Z’s mother’s death, the Council took an urgent decision regarding Mr Z’s capacity, care needs and where he should live. The Council decided he lacked capacity and placed him in residential respite care for adults with learning disabilities for a period of three weeks.
62. During this time it noted he had close relationships with staff at his day service and he had enjoyed spending time there, so it increased his hours at the day service to provide some consistency for Mr Z following a traumatic event. The Council then promptly began considering alternatives to residential care for Mr Z.
63. The Council took appropriate, urgent decisions during this difficult three-week period regarding Mr Z’s capacity and needs. The action it took was reasonable, properly recorded and meant Mr Z did not have a break in his care and support. During this period, the Council acted without fault.

Delayed care needs assessment for Mr Z (2022)

64. From mid-November the Council began to make enquiries about live-in care to be provided to Mr Z at his home where he had lived with his mother, as it decided residential care was not a suitable long-term option.
65. However, the Council did not carry out a care needs assessment with Mr Z before making this decision. It also did not clearly record this as a best interests decision - explaining its reasons and the other options that it had considered. This was fault.
66. Instead the Council carried out its first needs assessment with Mr Z several months later in late February 2023. This delay in assessing Mr Z’s care needs was fault by the Council.
67. After the February 2023 care needs assessment, the Council reduced Mr Z’s care package and decided he did not need live-in carers. I cannot say what Mr Z’s care package would have contained if the Council had carried out an earlier needs assessment as this would have been dependent on his needs at the time. Instead the Council’s fault has caused Mr Z uncertainty about whether a less restrictive care package would have been in place sooner if not for the delay.
68. From February 2023 onwards there has been no delay in the Council’s assessments of Mr Z’s care needs.

Poor standard of care (November 2022 – February 2023)

69. Daily care records between end of November 2022 to mid-February 2023, when Mr X received 24 hour live-in care at home from Kumari Care, are very brief.
70. These records do not evidence when the care workers administered Mr Z’s medication, despite him needing this multiple times a day. Therefore, this combined with Ms T and Mr X’s recollections that his medications were not always administered by care staff means on the balance of probabilities, it is likely that Mr Z had medications missed during this time. This was fault by the care provider which may have impacted Mr X’s health.
71. The care records I have seen do not support that Mr Z was ignored by care staff, or provide any other evidence of poor care. However, Ms T’s account of this differs. There is insufficient evidence for me to establish exactly what happened so I have not been able to come to a finding on these other allegations of poor care.

Mental capacity assessments and best interests decision making

72. The Council regularly completed mental capacity assessments for Mr Z in response to key decisions around his care and who should represent and support him.
73. The Council decided each time that Mr Z lacked capacity to make complex, long-term decisions around who should be his carer, and around management of his property and finances. In making these decisions, it acted in line with the Act and the Code. The Council was not at fault in how it assessed Mr Z’s capacity.
74. However while the Council assessed Mr Z’s capacity without fault, it frequently failed to then record subsequent best interests decisions made on Mr Z’s behalf.
75. Often in the case record and in his care needs assessments, it was unclear how decisions were made, or if they were made at all, regarding who should be Mr Z’s main carer and who should have deputyship over his financial affairs. It also should have appointed an independent advocate for Mr Z sooner than it did to assist in seeking his views.
76. The Council has accepted fault with how it carried out its best interests decision making in this case. This fault has caused uncertainty to Mr Z about whether the Council properly considered what was in his best interests in response to several key decisions including where he should live, who he should live with and who should represent him.
77. Due to the significance of the uncertainty caused by this fault, I have recommended a financial remedy at the higher end of the scale in our Guidance on Remedies for this type of injustice.

Bereavement support

78. Shortly after Mr Z’s mother died, the Council considered bereavement support options and decided in the short-term, ensuring Mr Z had a consistent routine was the priority. As a short-term, urgent decision there is no evidence of fault here by the Council.
79. There is then no evidence of the Council considering this matter again until around seven months later, when it sent a letter signposting to bereavement services. Ms T says the family never received this letter, which differs from the account in the Council’s case records. Giving equal weight to both sets of evidence I cannot come to a finding on what happened regarding this letter.
80. However in any case, the Council was at fault as it let this matter drift. This has caused Mr Z uncertainty about whether he may have been able to access helpful bereavement support sooner during this period were it not for the fault.

DWP appointeeship and access to benefits

81. In the period between November 2022 and February 2023, Mr Z did not have an appointee in place with the DWP to reinstate his benefits. Ms T promptly applied for this and the delay appears to be largely due to the DWP appointeeship application taking around three months to be decided.
82. For part of this time, Mr Z was in respite care where all his needs were met by care staff. However once he was back at home in late November, Mr Z’s relatives were supporting him financially instead and in one instance, his social worker arranged for a food bank parcel as he had no food.
83. It is for Ms T to complain to the Parliamentary and Health Services Ombudsman (PHSO) about any delays by the DWP in making its decisions. The Council was not at fault for this delay.

Deputyship and Mr Z’s tenancy

84. The Council began advising Mr X to apply to the Court of Protection for deputyship over his son’s affairs from February 2023. He had expressed a wish to manage his son’s affairs since November 2022.
85. Between February and June 2023 Mr X did not make this application, despite there being key, outstanding decisions to be made relating to his son’s care, property and finances.
86. The delay in resolving this was in part caused by Mr X not progressing his application for deputyship. We are sympathetic to the Council’s dilemma in wanting to ensure that Mr Z’s next of kin had the opportunity to be assessed by the court to take over this role and not simply wanting to take over as deputy in his place.
87. However the Council was ultimately responsible for ensuring Mr Z’s welfare needs were met as an adult, without capacity, who needed key decisions to be made. Mr Z not having a court appointed deputy for many months in place has left him with an insecure tenancy and without a representative assisting him to make decisions regarding his property, finance and care.
88. The Council failed to make a clear decision regarding deputyship after it assessed Mr Z did not have capacity to make this decision and instead of giving Mr X a clear timeframe in which to apply to the Court of Protection, it has let the matter drift. The Council was at fault. This fault has caused Mr Z uncertainty about whether he could have been better represented during this time.

Exposed Mr Z to COVID-19

89. The Council sent me a copy of its COVID-19 policy which was in place when Mr Z’s social worker attended his home in December 2022 when they had tested positive for COVID-19.
90. The Council’s own guidance said staff should not carry out visits if testing positive. However it said practitioners no longer need to carry out regular asymptomatic testing. This reflected the Government guidance at the time also.
91. The Council’s records show that on the day the social worker tested positive for COVID-19 in December 2022 they cancelled a visit on that day. They then attended Mr Z’s property several days later after they said they were testing negative.
92. When asked to wear a face mask, the social worker did. The social worker did not provide evidence of a negative test. However they were under no obligation at that time to do this.
93. The Council’s actions were consistent with the Government guidance at the time. The Council was not at fault.

Delayed complaint response

94. The Council took several months to respond to Ms T’s complaint initially through the statutory adult social care complaints procedure.
95. The Regulations do not say how long an investigation should take. However the Council has accepted it should have taken less time to respond to this complaint than it did. The Council was at fault. This fault caused Ms T frustration.

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Agreed action

96. Within one month of the final decision, the Council has agreed to:
1. Apologise to Mr Z, through an advocate if necessary, for the injustice caused by the faults in this case;
2. Hold urgent best interests decision meetings to decide on any key outstanding actions for Mr Z, including who should progress the application for deputyship, who should be his main carer, and where he should live and who with. These decisions should be considered and recorded in line with the checklist given in Section 4 of the Mental Capacity Act; and
3. Pay Mr Z £600 to reflect the uncertainty and risk of poor health due to missed medications, that he has been caused by the Council’s faults in this case.
97. Within three months of the final decision, the Council has agreed to:
1. Demonstrate that it has spoken with Kumari Care to seek assurances that its care staff will record medication administration clearly in its care records in future, and show that managers have communicated this to the organisation’s frontline care workers;
2. Demonstrate that it has reminded its adult social care staff of the importance of best interests decisions being carried out promptly where recommended following mental capacity assessments and these decisions being properly considered and recorded, in line with Section 4 of the Mental Capacity Act;
3. Demonstrate that it has held a lessons learned meeting to establish why best interests decisions were frequently not carried out in this case, and put learning in place to ensure against this happening in future;
4. Remind its adult social care staff that care needs assessments should be carried out promptly in response to significant, new circumstances which change a person’s care needs; and
5. Demonstrate what steps it has taken or intends to take, to reduce its adult social care complaint backlog and ensure it is able to investigate these complaints within reasonable timeframes.
98. The Council has agreed to provide us with evidence it has complied with the above actions.

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Final decision

99. I have ended my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay a financial remedy and carry out service improvements.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman