Summary: We investigated a complaint about the care and support provided to Mr O’s late brother Mr K by a Council and NHS Trust. We found fault by both organisations. The Council took too long to allocate Mr K a social worker and too long to respond to Mr O’s complaints. The Trust took too long to act on concerns about Mr K’s fitness to drive or to arrange an assessment of his mental capacity. The communication between the Council and Trust was also poor at times. These failings caused Mr O and Mr K avoidable distress and frustration. The organisations have agreed to apologise, pay a financial remedy, and take actions to improve their services.

The complaint

1. Mr O complained about the social and health care and support provided to his late brother Mr K by Suffolk County Council (the Council) and Norfolk and Suffolk NHS Foundation Trust (the Trust) between August 2021 and August 2022. He complained the Council and Trust failed to respond adequately to his brother’s deteriorating health and increasing needs as a result of dementia. His complaints include:
• poor care planning and risk assessment (particularly around driving and cycling)
• delay in allocating a social worker
• inadequate and delayed assessment of Mr K’s mental capacity
• delay providing information to support Mr O’s application for power to manage his brother’s affairs
• inadequate home care that did not meet Mr K’s needs, including inadequate support around washing and dressing
• poor communication between social care and health (mental health) services which meant Mr K’s care package was not ‘joined-up’
• delay in arranging a suitable care home placement for Mr K
• significant delays in responding to Mr O’s complaints
2. Mr O says his brother was left living in squalid conditions, was at risk, and went into hospital at least twice due to accidents that could have been avoided if the right care and risk assessments were in place. Mr O says he suffered massive stress and upset over a prolonged period, trying to support his brother and get him the care he needed despite living a long way away. Mr O says this stress had a significant negative impact on him and his immediate family.
3. Mr O wants the organisations to accept the failings in his brother’s care, and to look at how they can do things better in future to avoid these things happening again.

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The Ombudsmen’s role and powers

4. The Ombudsmen have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA). The Local Government and Social Care Ombudsman investigates complaints about adult social care providers. (Local Government Act 1974, sections 34B, and 34C, as amended). The Health Service Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’ in the delivery of health services (Health Service Commissioners Act 1993, section 3(1)).
5. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended). If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
6. The Ombudsmen’s role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how an organisation made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
7. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I read the documents Mr O sent to us and discussed the complaint with him. I also considered documents and comments on the complaint from the Council and NHS Trust, including Mr K’s medical and social care records. I looked at relevant law, policies and guidance.
9. Mr O and the organisations had the opportunity to comment on a draft of this decision. I took all comments into account before making a final decision.

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What I found

Relevant legislation and guidance

Mental Health Act 1983

10. Under the Mental Health Act 1983, when someone has a mental disorder and is putting their safety or someone else’s at risk they can be detained in hospital against their wishes. This is sometimes known as ‘being sectioned’. Usually, three professionals need to assess the person and agree that the person needs to be detained in hospital – an Approved Mental Health Professional (AMHP), and two doctors. A person should not be detained under the Mental Health Act if there is a less restrictive alternative. The people carrying out the Mental Health Act Assessment will consider other community-based options that might help the person, such as support or treatment in their home.

Mental Capacity Act 2005

11. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. There is also a Mental Capacity Act Code of Practice, which sets out steps organisations should take when considering whether someone lacks mental capacity.
12. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.
13. A key principle of the Mental Capacity Act is that any act on behalf of someone who lacks capacity must be taken in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision-makers must follow to determine what is in a person’s best interests. The decision-maker must also consider if there is a less restrictive option available that can achieve the same outcome.
14. The Mental Capacity Act 2005 introduced the ‘Lasting Power of Attorney’ (LPA). An LPA is a legal document which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision on their behalf. The decision must be in the person’s best interests.
15. If there is a need for ongoing decision-making powers and there is no Lasting Power of Attorney in place, the Court of Protection may appoint a deputy to make future decisions. It will state what kinds of decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian (OPG) produces detailed guidance for deputies.

Mental Capacity Act 2005 – guidance from the OPG, NICE and SCIE

16. The Office of the Public Guardian (OPG) produced a guidance document “OPG603: Mental Capacity Act - Making decisions: A guide for people who work in health and social care (2009)”. This provides health and social care professionals with an overview of the MCA and guidance on how they should use it. It highlights the presumption of capacity and, in section two, that considerations of capacity are time and decision specific.
17. There is no medical diagnosis that automatically means someone lacks capacity. Section two of the OPG Guidance notes that a lack of mental capacity could be due to, for example, dementia. However, section four states that professionals cannot assume a person cannot make a decision for themselves just because they have a particular medical condition. Similarly, guidance in the Social Care Institute for Excellence (SCIE)’s ‘Dementia Gateway’ instructs readers not to assume that people with dementia cannot make decisions for themselves.
18. The National Institute for Health and Care Excellence (NICE) has also produced guidance on this topic – NG97, “Dementia: assessment, management and support for people living with dementia and their carers (2018)” and Quality Standard 184, “Dementia”. This guidance covers issues around mental capacity, future care planning, and involvement of family members and carers.

Care Act 2014

19. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and where appropriate their carer or any other person they might want to be involved.
20. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Councils should let the individual know of the proposed timescale for when their assessment will be conducted and keep the person informed throughout the assessment process. Where a person has both health and care and support needs, local authorities and the NHS should work together effectively to deliver a high quality, coordinated assessment. (Care and Support Statutory Guidance 2014).

Dementia guidance

21. As outlined above, the SCIE and NICE have issued guidance on supporting people living with dementia – the SCIE “Dementia Gateway”, and the NICE guideline NG97. In addition, the Department for Health published “Nothing ventured, nothing gained: risk guidance for people with dementia” in 2010. Although published some time ago, this guidance is still relevant now and provides tools to think about reaching decisions about risk, looking at less restrictive alternatives, and supporting independence.

What happened

22. This section provides an outline of background events leading to Mr O’s complaint. It is not intended to be a comprehensive account of everything that happened.
23. In May and June 2021, health and social care services assessed Mr K due to concerns raised by his brother Mr O and his friend about Mr K’s living conditions at home, and about his health and welfare. Mr K was assessed as having the capacity to make his own decisions, and he declined any support from social care services, mental health services or his GP. The Council closed his case.
24. In August 2021 Mr K’s GP referred him to Mental Health Services at the Trust due to ongoing concerns about his health and welfare from Mr O and Mr K’s friend. Staff at the GP practice carried out several home visits and were concerned about Mr O’s self-neglect and hoarding. The Practice also made a safeguarding referral about this to the Council.
25. The Trust’s Access and Assessment Team visited Mr K on 11 August to assess him. They were very concerned about his severe self-neglect, and noted that his family and friends had seen some changes in his behaviour. The Trust staff concluded Mr K had capacity to make decisions about his health and welfare at that time. They decided to refer him to the Trust’s Integrated Delivery Team (community mental health service) for further assessment.
26. A psychiatrist and mental health social worker assessed Mr K on 1 September and 12 October and decided he needed a CT scan of his head due to concerns he might have early-onset dementia. After a CT scan in November 2021 Mr K was diagnosed with frontal lobe dementia.
27. In December 2021 the Trust contacted the Council to ask for an urgent social care assessment and a care package, to help Mr K with cleaning, laundry, food preparation, shopping, and advice with claiming benefits. In late December Mr O emailed the Trust and Mr K’s GP to raise serious concerns about his brother’s living conditions, after he had visited to pick him up at Christmas time. Mr O described the stench in Mr K’s house, hundreds of flies in the kitchen, rotting food, and Mr K dressing in dirty clothes.
28. Mr O said he was “staggered by the state of the house, far worse than in June, it had not become like that overnight”. He said several health professionals had visited Mr K over a number of months, but nothing had apparently been done about the unhealthy conditions his brother was living in. Mr O also told services his brother had been repeatedly “scammed” out of tens of thousands of pounds. He said he was concerned that his brother probably had dementia, and there seemed to be no care plan in place for him.
29. In January 2022 the Trust’s mental health team visited Mr K to discuss his dementia diagnosis and his care and support. They also discussed the fact he was driving his car despite his confusion and mental difficulties, and despite it not being insured or taxed. They tried to encourage him not to drive but he would not give them his car keys, so they contacted the Police and DVLA with their concerns.
30. As Mr O had already highlighted in his email to services in late December 2021, it appeared Mr K had been a victim of financial abuse and had lost thousands of pounds. Mr O estimates this to be in the region of £125,000. Mr O contacted Mr K’s GP to ask her to complete forms for the Court of Protection about Mr K’s capacity, so Mr O could apply to manage Mr K’s finances on his behalf.
31. Mr K went into hospital in early February 2022 after collapsing. He was discharged home shortly afterwards, with a package of home care visits in place for help with personal care, food preparation and domestic tasks. In late March Mr O raised concerns with the Council that staff had not supported his brother to have a shower for over 10 weeks.
32. In early April 2022 Mr K collapsed after going out cycling. His psychiatrist and care co-ordinator said the incident had “accelerated our thoughts as a team that [Mr K] needs to be in supported living / residential care for his safety”. In early May 2022 Mr O said Mr K was continuing to put himself at risk by going out on his bike to buy shopping. He said an ambulance had to attend at least three times due to him falling off / collapsing.
33. Multidisciplinary team meetings took place in May and June 2022, involving the mental health team, social care, Mr K’s GP, the care agency and Mr O. They discussed plans to increase Mr K’s home care support while they looked for a care home for him to move to in the longer-term.
34. In mid-July 2022 there was a heatwave in the UK, with some areas topping 40C for the first time. Mr O and health and social care professionals were very concerned about Mr K’s risk to himself during the extreme heat. This was through not drinking enough, wearing warm clothing, and turning his fire on in the house. Health and social care staff considered carrying out a Mental Health Act assessment to potentially detain (section) Mr K so he could move to a mental health ward for his safety. Social care staff also liaised with various care homes to try and find an urgent placement for Mr K to move to.
35. The Council identified a suitable care home placement with a vacancy on 18 July. As this was during the COVID-19 pandemic, Mr K had to have a PCR test on 19 July to check he did not have COVID-19, before he could move to the placement. The PCR result came back negative on 21 July, and Mr K moved to a care home that day.

Complaint

36. Mr O complained about various aspects of his brother’s care and support from health and social care services, as outlined in paragraphs 1 and 2 of this decision. He received separate responses from the Council and the Trust. Mr O said he was reasonably satisfied with the Trust’s response as it accepted some failings, but he was very dissatisfied with the Council’s response as it strongly defended its actions. As he remained dissatisfied, he brought his complaint to the Ombudsmen.

Analysis

Care planning and risk assessment

37. Mr O said the organisations’ care planning and risk assessments for his brother were inadequate. He said in particular, they did not adequately deal with the risk of him driving or cycling. He also said that when Mr K’s care plan needed changing, this happened too slowly. Mr O said when it was clear his brother needed to move into a care home placement urgently in July 2022 due to the risk to him during the heatwave, it took five days before he moved. Mr O said his brother could have died during this period, when it was the hottest day ever recorded in the UK. I have addressed the issues about moving to a care home placement in a later section of this decision.
38. The Council said the issues about driving were largely dealt with by the Trust. It said in terms of Mr K cycling, an MDT meeting in May 2022 discussed this issue and various things were done to address this risk. These included arranging for meals on wheels, shopping trips with the home care team, and trialling Mr K wearing a smart watch so he could be located. The Council said the aim of these steps was so Mr K did not have a reason to want to use his bike to go shopping.
39. The Trust said staff were concerned about Mr K continuing to drive and the risk to his safety. It said the psychiatrist discussed this with Mr K at length, but Mr K would not give up his keys and the doctor could not forcibly remove them. As a result, they informed the DVLA and local police. The Trust told us it did not feel there was any more it could have done any sooner to address this risk. It said its actions were in line with guidance from the General Medical Council on “Patients’ fitness to drive and reporting concerns to the DVLA or DVA – professional standards”.

Decision

40. Professionals discussed the concerns about Mr K continuing to use his bike at an MDT meeting on 12 May 2022. The social worker explained that the morning home care call could not take place any earlier due to staffing issues and the need to prioritise personal care and medication visits between 7 and 11am. However, the MDT noted various other actions to try to minimise this risk including arranging for meals on wheels, shopping trips with the home care team, and trialling Mr K wearing a smart watch so he could be located. Mr O said he felt the organisations should have done more to address this risk.
41. I have not seen evidence of fault in terms of the actions taken to address the risk posed by Mr K cycling. Health and social care professionals discussed this in detail several times, and put various options in place to try to address and minimise the risk to Mr K. The Care and Support Statutory Guidance explains that local authority and NHS organisations must co‑operate and address risks to vulnerable adults through timely information sharing and targeted multi-agency intervention. Here, steps were taken across health and social care, as well as by Mr O, to minimise Mr K’s wish to use his bike to go shopping.
42. It is important to bear in mind that one of the most challenging times in terms of risk and dementia can be the “in between” stage. This is when the capacity of the person to make decisions fluctuates but is not felt to be completely absent. The level of risk can change over time and needs to be reviewed regularly because dementia is a progressive condition.
43. Taking everything into account, I consider the actions by health and social care in relation to the risk of Mr K cycling were prompt, proportionate and appropriate.
44. In terms of the risk of Mr K continuing to drive, the Trust explained that the GMC guidance on fitness to drive covers reporting concerns to the DVLA or DVA. Medical professionals have a duty of confidentiality to their patients but they also have a wider duty to protect and promote the health of patients and the public. They must disclose personal information in the public interest if failure to do so may expose others to a risk of death or serious harm.
45. A driver is legally responsible for telling the DVLA or DVA about a condition that could affect their safety as a driver. However, if a person is unfit to drive but continues to do so, a doctor can decide to disclose information about them to the DVLA or DVA in the public interest. If a patient is unable to understand advice about the need to inform the DVLA or DVA, for example because of dementia, a doctor should inform the DVLA or DVA “as soon as practicable”.
46. The Trust said its staff tried to discuss this issue with Mr K and to get him to give up his car keys voluntarily, but he would not and they could not forcibly remove them. It said it felt its actions were in line with the GMC guidance and that it could not have done more sooner.
47. Mr O and Mr K’s friend had highlighted concerns around him driving in September / October 2021, and a Trust mental health social worker looked into these concerns. They discussed the issue with Mr K, who said he was using his bike to go to the shops rather than driving. Staff discussed the issue again at an MDT meeting on 1 December and the Trust agreed to tell the Police that Mr K may be driving and may pose a risk. During a home visit on 10 December the Trust reiterated the importance to Mr K of not driving. Mr K’s community psychiatric nurse also told Mr O he could contact the DVLA himself to raise concerns about Mr K’s driving if he wished to.
48. The Trust told the Police about their concerns about Mr K driving on 7 January 2022. The consultant psychiatrist noted on 19 January that “The driving is of great concern. We were unable to persuade Mr [K] to surrender his keys, but we have put a note in red tape around the key to deter him from using it and notes on the front and back doors reminding him not to drive. I have notified the DVLA of my concerns around him driving and asked for his licence to be revoked. [We have] contacted the police to inform them that he should not be driving but will not surrender his keys.”
49. It is my view that after the MDT on 1 December, when it was clear that Trust staff had concerns about Mr K’s fitness to drive and the potential risk to himself and to others, they should have acted sooner to inform the Police and to notify the DVLA. It took over five weeks from the MDT to inform the Police, and a further two weeks before a doctor wrote to the DVLA to raise their concerns. The GMC guidance talks about taking steps “as soon as reasonably practicable” to address these risks and concerns. I consider five to seven weeks was too long. It is my view that this amounts to fault by the Trust. Fortunately it appears that Mr K did not come to any harm as a result of this delay. But, it is likely that Mr O experienced preventable worry and distress about the risks to his brother during this period.

Delay allocating a social worker

50. Mr O said it took too long to allocate Mr K a social worker, to address his care needs and put support in place. He said the Council should have kept his brother’s case open after it initially assessed him in May and June 2021, as it was clear he was rapidly declining. Mr O said his brother was living in squalid conditions between August and Christmas 2021, and NHS staff did not do enough to liaise with the Council to make sure support was put in place. He said there were further delays between January and March 2022.
51. The Council apologised for the delay in allocating Mr K’s case to a social worker in early 2022, after the Trust had made a referral in December 2021. The Council said once Mr K had an allocated social worker, its staff were in regular contact with Mr O and Mr K, and made changes to Mr K’s care package when needed. The Council said at that time it was considerably impacted by COVID-19 and staff were unable to respond as quickly as they would have liked to.
52. In the information it sent to us, the Council acknowledged there were difficulties putting interim support in place for Mr K, and there were higher than normal waiting lists at that time. It said it has now carried out significant transformation work to streamline and reduce delays “at the front door” for Adult Social Care. It now has a hybrid team which focuses on responding promptly to referrals, and this has led to a dramatic reduction in waiting times.
53. The Trust told us its staff were in regular contact with Adult Social Care about their concerns about Mr K. It said it chased and escalated the issue to try to get a social worker allocated sooner.

Decision

54. As outlined by the Council, the COVID-19 pandemic was still having a significant impact in the UK during Winter 2021 / early 2022, and there were higher levels of staff absence from work. The Council has acknowledged it took too long to allocate a social worker to Mr K and has apologised. The Council has also explained that significant transformation work has taken place since, to streamline services and reduce delays.
55. The guidance which accompanies the Care Act 2014, the Care and Support Statutory Guidance (CSSG), says an assessment of a person’s need for care should take place “over an appropriate and reasonable timescale taking into account the urgency of needs”. We usually expect councils to complete non‑urgent needs assessments within four to six weeks, and to keep those involved informed throughout the process.
56. Here, the Trust made a referral to the Council in mid‑December 2021, asking for an urgent social care assessment and care package. Mr K’s care and support did not start until early March 2022, almost three months later. However, it is important to acknowledge that Mr K was in hospital for part of that period, in February 2022, after he collapsed.
57. I can see that between 15 December (when the Trust made the referral) and early February (when Mr K went into hospital), the Trust and Mr K’s GP chased the Council about allocating a social worker five times. They highlighted their serious concerns about his welfare and his need for urgent support due to self-neglect. Mr O was also chasing up care and support for his brother during this period.
58. I consider the Council’s delay in allocating Mr K’s case to a social worker and putting a care package in place for him was fault. I have not seen fault in the Trust’s actions, as it took a number of steps to try and escalate matters with the Council in view of Mr K’s urgent needs.
59. It is difficult to know what impact this delay in allocating a social worker had on Mr K, and in turn on Mr O. It is clear from the health and social care records at the time that Mr K was living in very poor conditions, and needed support with personal care, cleaning, laundry, food preparation, shopping and finances. If a social worker had been allocated sooner it is likely that a care package would have been in place more quickly than it was. This delay is likely to have caused avoidable worry and distress to Mr O. It is also likely to have had a negative impact on Mr K in terms of his living environment and self-neglect, but it is difficult to comment on this in more detail.

Assessment of mental capacity

60. Mr O said it took the organisations too long to assess Mr K’s mental capacity, and too long to provide information to support his application to the Court of Protection for power to manage his brother’s affairs. He said his brother was left in a vulnerable position and suffered financial exploitation which could have been avoided.
61. The Council said it was satisfied that it assessed Mr K’s mental capacity appropriately under the Mental Capacity Act, and at the right points in time. It told us that the member of staff working with Mr K is experienced in this field and is a Mental Capacity Act ‘Champion’ at the Council. It told us its staff formally assessed Mr K’s capacity five times during the period the Council was involved in his care.
62. The Council said when it assessed Mr K as lacking capacity to make decisions about his care and support needs, staff made best interests decisions to do everything possible to keep him at home and in his preferred routine. The Council also noted that when staff discussed this at a multidisciplinary meeting in May 2022 which included Mr O, Mr O said he felt it was best for his brother to live at home for as long as possible.
63. The Trust apologised to Mr O that staff vacancies in the Older People’s Mental Health Team contributed to a delay in carrying out a capacity assessment of Mr K. In its comments to us, the Trust said it transferred Mr K to the Older People’s Team on 8 December 2021. The Team Nurse discussed the request for a capacity assessment with Mr K’s GP during a phone call on 7 January 2022. The GP said she was happy to complete the form if Mr K had capacity for and agreed to this. The Trust said it was possible a capacity assessment might have been done in December 2021 if there had not been a vacancy for a consultant psychiatrist in the team at that time.

Decision

64. I have reviewed the capacity assessments carried out by the Council between February and August 2022. They looked at Mr K’s capacity in relation to having carers at home, about wearing a smart watch with a location tracker, and about going into respite care and then to a longer term care home placement. On each of these occasions the Council found Mr K lacked capacity to make the decision in question, so decisions were made in his best interests, as outlined by the Council in its responses. I have not seen any evidence of delay in carrying out capacity assessments by the Council, or that the assessments themselves were flawed.
65. I have also looked at the Trust’s involvement in considering Mr K’s capacity at various points in time. When Mr K was first assessed by a psychiatrist in September 2021, they commented that it was difficult to assess Mr K’s understanding or capacity at that time. They planned to carry out further investigations and then review Mr K again.
66. When a psychiatrist saw Mr K in January 2022, they noted that his GP was going to assess his capacity to consent to Mr O having Lasting Power of Attorney to manage his affairs. The psychiatrist said they felt Mr K was unlikely to have capacity to give that consent, or to have capacity to make decisions about a care package, at that time.
67. On 1 February 2022 Mr K’s GP completed forms for the Court of Protection relating to Mr K lacking capacity to consent to his brother Mr O having Lasting Power of Attorney to handle his affairs. This enabled Mr O to start the process of applying to the Court of Protection for deputyship to manage his brother’s affairs.
68. When a psychiatrist reviewed Mr K again in April 2022, he noted that Mr K was unlikely to have capacity in terms of decisions about his care and support or his accommodation. He felt Mr K had no insight into the risk to himself, his limitations, or his problems with physical and mental health. The psychiatrist also outlined his discussions with Mr O at that time, in that Mr O felt his brother should be supported to have as independent and best quality of life as possible. The psychiatrist noted that they discussed the risks this posed to Mr K and others, and that sooner rather than later Mr K would need a supported living environment.
69. The Trust acknowledged that it might have been able to carry out a capacity assessment on Mr K in December 2021 if it had not been carrying vacancies in the Older People’s Mental Health Team at that time. Mr K’s care transferred into that team on 8 December 2021, but an assessment of his capacity was not done until 1 February 2022, by Mr K’s GP, almost two months later. I consider this delay amounts to fault. Ideally, a capacity assessment should be done as soon as possible after the need for an assessment has been identified. Here, Mr O had raised concerns about his brother potentially being a victim of financial abuse in late December 2021. I consider that an assessment of Mr K’s capacity in relation to financial matters and to appointing his brother as Lasting Power of Attorney should have been done sooner than it was.
70. Mr O says he endured a lot of stress during this period of time, and also spent significant time and effort in sorting out his brother’s financial affairs. Although an earlier capacity assessment would not have prevented all of this, it is likely to have shortened the time period involved for Mr O. I have noted that Mr O said most of the monies were eventually returned to his brother after investigations by his bank.

Home care

71. Mr O said the home care the Council arranged for Mr K was inadequate and did not meet his needs. He said his personal care, particularly around washing and dressing, was very poor. He said during one period, staff did not encourage or support his brother to wash or change his clothes for 10 weeks and he was wearing soiled underwear. Mr O said when staff finally made an effort to help Mr K with washing or changing his clothes, he accepted this surprisingly easily.
72. The Council said Mr O had clearly worked closely with professionals to help keep Mr K at home for as long as possible. It noted that the social worker and care provider had tried to encourage Mr K to attend to his personal care, without being too intrusive. The Council acknowledged there were considerable risks for Mr K with staying at home, including poor personal hygiene, unsanitary living environment, fire risk, and the risk of him driving or wandering from home. The Council said it was a difficult balance, trying to support Mr K to live at home independently for as long as possible. It said staff adjusted his care plan several times to try and maintain this balance.
73. The Council said it understood Mr O’s concerns about his brother’s poor personal hygiene and not changing clothes. It said that although this may have seemed neglectful by the care provider, it was very important to manage this in a safe and supportive way. It said there is a risk of damaging the relationship between the person and their carer if this type of care is “forced”. It could also be viewed as an assault by the person receiving care.

Decision

74. The Social Care Institute for Excellence explains in its publication “Dignity in Care” that personal care in the home needs to be thoughtful, polite and sensitive, respecting a person’s space and their body. It is also important to recognise that if a person repeatedly refuses personal care, this can lead to problems with their health and wellbeing. If the person has capacity to make this decision, the care cannot be forced upon them. If the person has been found to lack capacity to make decisions about personal care, it is still important to help them feel in control, support their independence and respect their dignity.
75. As the Council outlined in its response, it is important to manage this in a safe and supportive way. This is particularly important in the early stages of a care arrangement, while trust is being built between the person receiving care and their care team. Having reviewed the care records, I can see that care staff regularly tried to support Mr K with personal care and hygiene. They encountered some difficulties in doing this due to Mr K’s lack of insight into his situation and his needs. I can understand Mr O’s significant concerns in this area. However, I have not seen evidence of fault in terms of how the care team provided Mr K’s personal care.

Communication and inter-agency working

76. Mr O complained about poor communication and inter-agency working between the NHS and social care teams involved with his brother. He said this led to significant delays in his brother receiving the care and support he needed, and his care was not ‘joined up’.
77. In its responses to us, the Council said communication between it and the Trust could have been better. It said this has improved because of changes to how services are organised. It said it now has Mental Health Social Work Teams within the Council.
78. The Trust told us it made referrals to Adult Social Care, and it escalated these when they had not been acted upon. It said there were also multi-agency professionals’ meetings that Mr O attended, where concerns and information about Mr K were shared with the relevant teams involved in his care.

Decision

79. The Trust and Council have both acknowledged that communication between services was not as good or effective as it should have been at times. The NICE guidance NG97 on “Dementia” highlights the importance of continuity and consistency of care between services, and of information sharing and communication. It explains that areas that pose particular challenges for services and practitioners may include coordinating care and support between different services.
80. As outlined elsewhere in this decision, there were some avoidable delays in Mr K getting the care and support he needed. Some of this was down to resourcing and capacity, and some of it appears to be due to shortcomings in communication and inter-agency working.

Delay in arranging a care home placement

81. Mr O said it took too long for the organisations to arrange a care home placement for Mr K, once it had been decided this was what he needed. He said this left his brother at increased risk, particularly during the heatwave in mid-July 2022. Mr O said the Council did nothing initially except give him the name of three care homes, until Mr K “went berserk” and Mr O threatened them with corporate manslaughter.
82. The Council said staff agreed at the MDT on 8 July (a Friday) that Mr K’s home care would be increased while the organisations looked for a suitable care home placement for him. It said it identified a suitable care home on 18 July. There was a short delay before Mr K could move into the home, as he had to have a negative PCR test result for COVID-19 first.
83. In the information it sent to us, the Council said it tried to increase the amount of home care available for Mr K while it was looking for a care home placement for him. It said staff also considered whether a Mental Health Act assessment was needed, although there were no available mental health beds that Mr K could move to. The Council said its staff appreciated the urgency with which Mr K needed to move into a care home.
84. The Council said Mr O seemed to think his brother could be moved to a care home immediately, once the decision had been taken that this was what he needed. The Council explained this was not the case. It said the care home had to carry out a pre-admission assessment to make sure it could meet Mr K’s needs, and there were also requirements relating to COVID-19, which I have highlighted above.

Decision

85. I can see from the health and social care records that staff tried to increase the support for Mr K at home while efforts were made to find a care home placement for him. For example, the social worker tried to get additional block support in place to ensure Mr K was drinking enough fluids, and the home care agency agreed to carry out some extra visits. She also emailed Mr O on Monday 11 and Wednesday 13 July about him looking for a suitable care home in Sheffield. Mr O wanted his brother to move to a care home that was closer to him. On Friday 15 July the social worker spoke with a care home Mr O had identified, but it was not able to meet Mr K’s needs (early-stage dementia support).
86. On Saturday 16 July the social worker liaised with an Approved Mental Health Professional about whether Mr K should be assessed for potential detention under the Mental Health Act. She also liaised with the home care agency again about increasing visits. On Monday 18 July the social care team tried to find an available emergency respite placement for Mr K, and contacted seven placements. On Tuesday 19 July, a care home carried out a telephone assessment and confirmed it could provide care and support for Mr K. As outlined earlier in this decision, a negative PCR result was needed before Mr K could move.
87. I have looked at how long it took to arrange for Mr K to move into a care home placement after the MDT meeting on Friday 8 July. The options being looked at were longer term placements or a short-term respite placement until a more long term option could be found.
88. Mr O started looking at care homes in the Sheffield area in the week commencing 11 July, and the social care team contacted him about options on 13, 14 and 15 July. On Monday 18 July, after Mr O and the Trust had raised concerns with the Council about the risk of Mr K due to the heatwave, the Council tried to find an emergency respite placement for Mr K. As outlined above, it contacted around seven potential placements that day, and Mr K moved to a respite placement two days later, after a negative COVID-19 PCR result had been obtained.
89. I can appreciate how concerned Mr O was about his brother’s welfare during this period. He urgently needed support in a care home environment, and there were additional risks to him due to the heatwave in the UK.
90. I have looked at the actions the Council took after the MDT meeting on 8 July, and I have not seen evidence of fault in how it handled this situation. It took various steps to try to increase Mr K’s care and support at home in the short-term, and it also acted promptly to contact potential respite placements. Taking into account all the activities that needed to happen before Mr K could move to a care home placement (respite or longer-term), the evidence I have seen shows the Council acted promptly in requesting additional support for Mr K at home, and in contacting potential placements so Mr K could move.

Delays in the complaint process

91. Mr O said he was unhappy about delays in the Council’s complaint process, and that things had been “chronically slow”. He said this added to the stress and frustration he had experienced.
92. Mr O emailed the Council to complain on 18 July 2022, and the Council responded on 26 August (within six weeks). Mr O sent a follow-up complaint on 30 September. The Council acknowledged this, apologised for the delay on 8 November and provided a full reply on 16 November (within seven weeks). Mr O replied the next day and the Council provided a final complaint response on 16 February 2023 (within 13 weeks).

Decision

93. Complaints about Adult Social Care services are governed by the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009. These regulations say councils must deal with complaints efficiently and respond to them in a timely and appropriate way. It is for the council and the complainant to agree how the complaint will be handled, the likely timeframe for the investigation, and when the complainant can expect to receive a response.
94. We expect organisations to prioritise complaint handling and a culture of learning from complaints. Complaints should be handled promptly, complainants should be given a likely timeframe for a response, and they should be kept updated if there are likely to be any delays or changes to timeframes. It is usually reasonable to allow up to 12 weeks for a full response to a complaint.
95. The Council’s Complaint Policy says a first complaint response should be provided within 20 working days (four weeks). Additional responses should be provided within 10 working days (two weeks), and if the complaint goes to Stage 2 of the Council’s process, within 25 working days (five weeks) or a maximum of 65 working days (13 weeks for complex cases).
96. Here, the Council’s complaint responses did not meet the timescales in its own Complaint Policy and there is little evidence that Mr O was kept updated during the investigations. The Councils actions were not in line with the expectations of the 2009 Complaints Regulations. The delay in responding to Mr O’s complaint and not keeping him adequately updated was fault. This led to frustration and distress for Mr O.

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The impact of failings on Mr O and Mr K

97. I have found several failings by the Council and Trust. The Council took too long to allocate Mr K a social worker, and too long to respond to Mr O’s complaints. The Trust took too long to act on concerns about Mr K’s fitness to drive or to arrange an assessment of his mental capacity. The communication between the Council and Trust was also poor at times.
98. When we identify fault, we consider whether this has led to an injustice, and if so, we will recommend a remedy. I have considered what impact these failings are likely to have had on Mr O and Mr K. They both suffered avoidable distress, and Mr O suffered avoidable stress, frustration and uncertainty.

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Agreed action

99. We take the individual circumstances of each complainant into account when recommending remedies. For injustice such as avoidable distress, harm or risk, we usually recommend a symbolic payment to recognise the impact of the fault on the complainant. Distress can include uncertainty about how the outcome might have been different and can include lost opportunity.
100. Where there has been avoidable distress, our financial recommendation to remedy this is usually between a total of £300 to £1,000. This depends on the severity of the injustice, the vulnerability of those affected and whether the injustice is over a prolonged period.
101. When making recommendations, we also take into account any recommendations we have made to an organisation before on similar issues, and any action the organisation has taken as a result. In September 2023 we made a recommendation to the Council about handling complaints promptly and keeping complainants updated on progress. The Council spoke with its complaints staff in November 2023 about the importance of complying with these recommendations.
102. I noted the Council has taken action to streamline its services and reduce delays in terms of responding to referrals into social care.
103. The Trust told us that, since this complaint, it has successfully recruited additional staff into the service, and there are no vacancies across the team involved. It said this has led to increased scope for Mental Capacity Assessments to be done more quickly. It also said it had discussed the importance of raising concerns about people’s driving to the DVLA and/or police at the earliest opportunity, with the relevant team.
104. The organisations have agreed to take the following actions, to remedy the injustice caused to Mrs O and Mr K by their faults.

The Council

105. Within one month of our final decision, the Council will:
• write to Mr O to apologise for the impact of the faults I have identified
• pay Mr O a symbolic payment of £250 to recognise his avoidable distress, uncertainty and frustration
106. Within three months of our final decision, the Council will consider the lessons learned from this case and write to Mr O and us setting out the action it has taken to improve services in relation to:
• the timescale for allocating cases to social workers
• responding to complaints and keeping complainants informed
• communicating effectively with linked NHS services and working together in a co-ordinated and patient-centred way
107. The Council will provide us with evidence it has complied with the above actions.

The Trust

108. Within one month of our final decision, the Trust will:
• write to Mr O to apologise for the impact of the faults I have identified
• pay Mr O a symbolic payment of £250 to recognise his avoidable distress, uncertainty and frustration
109. Within three months of our final decision, the Trust will consider the lessons learned from this case and write to Mr O and to us setting out the action it has taken to improve services in relation to:
• acting promptly on concerns about a person’s fitness to drive, and about assessing mental capacity
• communicating effectively with linked Council services, and working together in a co-ordinated and patient-centred way
110. The Trust will provide us with evidence it has complied with the above actions. The Trust should also share this information with the Care Quality Commission (CQC) and NHS England (NHS Improvement).

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Final decision

111. I have completed my investigation and uphold Mr O’s complaint. There were failings in some aspects of Mr K’s care and support, and in how the organisations handled Mr O’s complaint. The failings caused Mr O and Mr K avoidable distress, and caused Mr O additional stress and frustration. The organisations have agreed to apologise, pay financial remedies, and make improvements to their services. I am satisfied these actions represent a suitable and proportionate remedy for Mr O.

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Investigator's decision on behalf of the Ombudsman