Summary: Mr X complained about how the Council dealt with the care and support needs assessment for his father. We found fault with the Council’s actions which caused uncertainty and distress for Mr X and his family. The Council has agreed to apologise, make a payment to Mr X and Mr Y and remind staff about its practice.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains for his father Mr Y and in his own right. Mr X complains about:

• the assessment the Council completed, which he disagrees with and says contradicts the views of others;
• the Council discharging Mr Y from Adult Social Care with no support despite there being concerns for his safety and ability to care for himself; and that
• the Council did not tell Mr X or his daughter, Ms Z of the decision to end its involvement.

2. Mr X says this has caused distress to him and Ms Z, impacting on their work and causing health issues. Mr X states he and Ms Z have spent hours trying to resolve this. Mr X also says that since being discharged by Adult Social Care, Mr Y has gone missing several times which put him at risk.

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The Ombudsman’s role and powers

3. 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)
4. When considering complaints, 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.
5. 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

6. I have discussed the complaint with Mr X and considered the information he provided. I also considered the information the Council provided in response to my enquiries.
7. Mr X and the Council had the opportunity to comment on my draft decision.

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What I found

Legislation and Guidance

Mental capacity assessment

8. 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.
9. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

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

10. 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.

The Care Act 2014

11. 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. 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.

The Council’s Three Conversations Practice Guidance

12. The Council’s Three Conversations Practice Guidance document outlines its delivery of adult social care. The aim of this model is to remove the traditional ‘assessment for services’ approach and create a new culture where practice is based on three conversations:

• Conversation 1 – based on assets and strengths;
• Conversation 2 – applicable to people who are at risk and focusing on what needs to change to make people safe; and
• Conversation 3 – resources and support planning.

13. The document states “a recent Ombudsman case highlighted that an assessment must consider the person’s need for help and establish eligibility so only conversation 3 would fit this description”.

The Council’s Adult Social Care Practice Standards

14. The Council’s policy states, “We will hold formal supervision with practitioners every four weeks, with a minimum target of 10 supervisions across the year”.
15. The policy also states, “We will record evidence of management oversight and decision-making on people’s records in a clear and timely way, so that in the future they can understand the rationale for our decisions and actions”.

Summary of key events

16. The Council received a referral about Mr Y. This raised concerns from Mr X and Ms Z that Mr Y may have dementia. A social worker was assigned to complete a Conversation 1 assessment in April 2023.
17. Mr X and Ms Z continued to raise concerns about Mr Y’s confusion and that he was unkempt. They also stated that he had "failed a capacity test and needed to have a brain scan” following a GP appointment.
18. The Council recorded this information and explained the Mental Capacity Assessment (‘MCA’) to Mr X. On 17 April the Council recorded it would need to do an MCA but would need evidence of ‘an impairment of the brain’.
19. On 24 April the Council contacted Mr Y’s GP. The GP stated they had completed a memory test with Mr Y. Mr Y had scored 15/28 which is considered ‘a significant cognitive impairment’. The GP stated this was not a formal diagnosis and made a memory clinic referral. Case notes state the GP had advised Mr Y against driving due to ‘significant cognitive impairment’.
20. During the same time, the social worker completed two home visits to Mr Y and decided there were no concerns about Mr Y’s presentation or memory.
21. On 5 May Ms Z contacted the Council again to say she was worried that Mr Y was still driving despite the advice from the GP. The case notes provide evidence the social worker was aware of this and considered this to be a risk.
22. On the same day, the Council raised this concern with the GP surgery who stated it would raise a safeguarding alert. There is no evidence to suggest the Council received this safeguarding alert.
23. On 9 May Ms Z raised further concerns that Mr Y was not taking his prescribed medication, was having panic attacks, and still driving. The social worker noted that she would discuss these issues with Mr Y, including someone coming out to help with taking medication. The Council stated that the recommendation would be a care package to help with medication and food.
24. The social worker visited Mr Y the same day. Mr Y stated he would not be taking his medication and that he did not need to eat food. Mr Y also stated that he would continue to drive. Mr Y discussed getting up in the mornings for work, despite being retired for many years. The Council noted it would continue “to monitor and ensure is working in the least restrictive way under MCA and CA 2014”.
25. On 12 May the Council recorded Mr Y needed a ‘POC’ (package of care).
26. Shortly after, the NHS made a referral stating that Mr Y “possibly has dementia and requires a package of care”.
27. Similarly, staff from a local hospital ward raised concerns that Mr Y was becoming more confused.
28. The social worker and a colleague completed a further home visit on 24 May. The case notes stated no concerns, and that Mr Y was independent in everyday life. In contrast, the case notes also stated that Mr Y would be eligible for support with meals but has declined this. The case recordings summarised “no concerns identified with capacity.” The Council noted the outcomes of the visit as being:

• a careline referral;
• a carer’s assessment referral; and
• a falls prevention referral.

29. The Council conducted a final visit on 6 June where it recorded Mr Y “appears confused at times, however it is not preventing him from living independently”. The Council also recorded Mr Y “is managing well and presents well. The home is clean and tidy, and he does not appear to require support.”
30. On the same day the Council recorded a Conversation 1 summary, detailing some of the concerns raised by Mr X and Ms Z. The summary states that Mr Y is “independent with all aspects of daily living and does not require any further support in the community”. The summary stated this would not progress to Conversation 2.
31. The Council sent a closure letter to Mr Y on the same day and did not tell Mr X or Ms Z about the decision to close.
32. A management case note agreed with the closure summarising that Mr Y “has capacity and he wishes to live at home independently with his wife”.
33. Mr X states that he and Ms Z asked the Council for an update on Mr Y’s care on 12 June. The Council informed them the case had been closed on 6 June.
34. On 18 June Mr X made a formal complaint to the Council, he complained:

• the Council had closed the case and Mr Y did not understand or remember the conversations he had with the Council about this;
• he thought the Council would be waiting for the result of Mr Y’s appointment at the memory clinic in July; and
• that Mr Y continued to decline.

35. The Council responded to Mr X on 11 August stating that:

• Mr Y was deemed to have capacity at the time of the assessment;
• during home visits, Mr Y could weigh up, understand and retain information presented about his care and support needs;
• Mr Y’s appearance did not reflect that he could not deal with his own care and support needs;
• the Council did not uphold the complaint about the closure of the case; and
• the Council did uphold that the social worker should have told Mr X and Ms Z about the closure and apologised for this.

36. Mr X escalated the complaint to Stage 2, however on 12 September the Council responded stating that the findings remained the same as the Stage 1 response.
37. Between July and October, Mr X and Ms Y raised many similar significant concerns about Mr Y and his ability to keep himself safe. The NHS also made a referral to the Council stating that Mr Y was neglecting his personal care and about unsafe conditions in his house. The Council started an MCA on 29 July and decided that Mr Y did not have the capacity to make decisions around his care and support needs and accommodation.
38. On 10 October Mr Y moved into a residential care home. A formal diagnosis of dementia followed Mr Y’s admission to residential care.

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Analysis

39. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision it has made. We call this fault, and, where we find it, we can consider any consequences of the fault and ask the relevant council to address these.
40. However, we do not make operational or policy decisions on councils’ behalf, provide a right of appeal against their decisions, or seek to replace their judgement with our own. If a council has made a decision without fault then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We do not uphold complaints simply because someone feels a council should have done something different.
41. What that means in this particular case is that it is not for me to make my own judgement about Mr Y's care needs, or whether he had capacity to make decisions around his care and support needs. However, I can consider whether the Council properly made its decisions about this.
42. The Mental Capacity Act 2005 states the Council must undertake an MCA to assess someone’s ability to make a decision when that person’s capacity is in doubt.
43. The social worker recorded on three occasions that she would need evidence of a “diagnosis” or an “impairment of the brain” to be able to complete an MCA. However, the 2005 Act states Councils should carry out an MCA when that person’s capacity is in doubt. It does not require there to be evidence of a particular diagnosis, and so the social worker was incorrect to say this.
44. The social worker also recorded an intent to complete an MCA, however failed to document the reasons for the change in decision.
45. The Council had received concerns about Mr Y’s capacity on several occasions and from different sources, including Mr X and Ms Z and various NHS staff members. The concerns included Mr Y’s judgement around driving, not taking his medication and general confusion.
46. Therefore, the Council had reason to doubt Mr Y’s capacity, and because of this I consider it should have carried out an MCA. It delayed doing so and this is fault. The Council’s actions were not in line with the Mental Capacity Act 2005 or the Code of Practice 2007.
47. 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. The threshold for this is low.
48. The Council was clear in case notes that Mr Y appeared to need care and support around medication and food, and therefore it should have done a needs assessment. It did not and this is fault. The Council’s actions were not in line with the Care Act 2014.
49. There is evidence that the Council should have completed an MCA sooner and a needs assessment at the time. Therefore, it follows that it is fault to close the case when this work was still outstanding.
50. The Council has already admitted fault and apologised for not informing Mr X and Ms Z about the closing of Mr Y’s case.
51. I also observe there is only one management case note between April and June, which is not in line with the Council’s own policy around supervision. If the Council had followed its policy correctly, this could have resulted in identifying and addressing its failures.
52. I am satisfied that the fault identified caused Mr X and Ms Z avoidable distress and uncertainty whilst they continued to try and advocate on behalf of Mr Y.
53. I must also consider whether Mr Y suffered an injustice because of the identified faults. I cannot now know exactly what would have happened had an MCA been done earlier or a needs assessment been completed and whether this would have affected what care and support Mr Y could access. However, this left Mr Y with a sense of uncertainty.

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Agreed action

54. Within one month of my final decision the Council should:

• Apologise in writing to Mr X for the faults and injustice identified in this statement. This letter should include an apology for Ms Z and Mr Y as they were also impacted by the Council’s failings.
• make a payment of £350 to Mr X to reflect his distress and uncertainty;
• make a payment of £350 to Mr Y to reflect his uncertainty; and
• remind adult social care staff dealing with MCAs and needs assessments of the importance of keeping proper records of their decisions.

55. The Council should provide us with evidence it has complied with the above actions.

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Final decision

56. I have completed my investigation with a finding of fault causing injustice.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman