Summary: Miss X complains the Council did not properly provide adult social care for her father. The Council is at fault because it did not seek consent concerning staff being accompanied and it did not communicate properly about Occupational Therapy services. Miss X and Mr Y were unable to object to additional staff and left uncertain when actions were going to be taken. The Council should apologise and provide guidance to staff.

The complaint

1. The complainant, whom I shall refer to as Miss X, complains the Council did not properly provide adult social care for her father because it:
• Failed to adequately assess capacity;
• Provided an inadequate allocation of care;
• Ignored family concerns;
• Wouldn't take no for an answer in regards to the assessor being accompanied by a student on two separate occasions;
• Labelled my father as 'stubborn' which was then told to other agencies eg GP, hospital;
• Failed to safeguard her father – including that hand rails and fall alarm were not delivered in time; and
• Didn't adequately liaise with the carers or GP.
2. Miss X says her father was left at higher risk of injury or death, he suffered fractures from falls at home. She also says she and her father suffered avoidable distress.

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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. 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)
5. Our 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 it 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.
6. 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.

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How I considered this complaint

7. I spoke to Miss X about his complaint and considered documents he provided. I made enquiries of the Council and considered its response and the supporting documents it provided.
8. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law, guidance and policies

Assessment

9. 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.

Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.

Care Plan

10. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Reviews

11. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Mental capacity assessment

12. 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.

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.

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?

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.

What happened?

13. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
14. In March 2023 Miss X became concerned that her father, Mr Y, was unable to look after himself and was harming himself through neglect and malnourishment.
15. The Council assessed Mr Y and agreed to provide a care package consisting of one visit each day. Provision began in April 2023.
16. Miss X contacted the Council in May requesting a second daily care visit for Mr Y.
17. The Council completed a second assessment of Mr Y and agreed to add a second care visit each day in the evenings.
18. Mr Y was admitted to hospital before the additional care visits started. Mr Y subsequently passed away having been diagnosed with cancer.
19. Miss X complained to the Council. The Council partially upheld her complaint.

Analysis

20. Emails, a transcript of the May assessment and the review carried out then by the Council show that:
• Concerns were raised about Mr Y’s situation.
• The Council emailed Miss X and said it would assess Mr Y and consider completing a Mental Capacity Assessment if necessary.
• Following the assessment the Council accepted he had memory issues and noted Miss X felt this may be linked to a lack of appetite. Mr Y was recorded as being able to retain the majority of information.
• The transcript of the May assessment shows Mr Y was able to understand and reply to questions about his care provision and nutrition. Mr Y agreed to receive a second care visit each day.
21. The Council says there were no records showing Mr Y’s needs weren’t being met and it would expect the Care Provider to raise such concerns with it.
22. Assessment records show the Council put in place one care call each day beginning in April. Emails show it told Miss X that it would review the provision in 4 to 6 weeks time.
23. The Council says there is no record of contact between the beginning of April and mid May about Mr Y’s needs not being met. There is no evidence to show that any such concerns were raised with the Council.
24. Miss X requested a second care visit each day for Mr Y. Records show this was agreed following the assessment in May and was proposed to begin a few days later.
25. At the point of the May assessment Mr Y had suffered no recent falls and his diagnosis of cancer had not been made.
26. Care notes from the Care Provider show incontinence was only documented once the day before Mr Y was admitted to hospital.
27. Mr Y’s care notes show the Council:
• took account of the concerns raised by Miss X and arranged to assess Mr Y.
• contacted Mr Y’s doctor on several occasions to ensure they were aware of issues raised by Miss X.
• communicated with Miss X about district nurse and GP involvement.
• made a referral to an Occupational Therapist regarding the potential for falls to happen to Mr Y.
• received no further contacts about a deterioration in Mr Y’s circumstances, after the initial assessment in March, until mid-May.
• responded to the further issues raised the same day.
• visited Mr Y to make a second assessment within three days.
• agreed to increase Mr Y’s care provision to two calls a day as requested by Miss X.
28. Emails show Miss X agreed to the level of care provision being proposed at the time of each assessment in March and May. Miss X says she did not agree with the assessment and later refused to sign the updated care plan.
29. Miss X says the Council should have made a safeguarding referral for Mr Y after initial concerns were raised.
30. The Council’s complaint response said:
• “..the plan, in consultation with Mr Y and Miss X, to introduce support at a low level was aimed at helping Mr Y to accept and get used to having outside support given his previous reluctance to think about this option.”
• There was no evidence of disagreement with this plan at the time it was implemented.
• The Council was in regular contact with Miss X throughout the time that Mr Y was waiting for care to start, OT assessment was undertaken and medical investigations were ongoing through Mr Y’s doctor.
31. Mr Y’s care notes and the initial assessment records support this.
32. There is no evidence to show the Council described Mr Y to other agencies as stubborn.
33. The Council accepted in its stage 1 complaint response that consent for an observer to attend the assessment was not sought and upheld this part of Miss X’s complaint.
34. The Council has accepted that several areas of improvement where outcomes for Mr Y should have been better:
• Mr Y should have been advised of current waiting times for Occupational Therapy assessment.
• contact with Mr Y/Miss X should haver been made when the referral was received, to ensure the referral details were correct and advise Mr Y/Miss X to contact the Council should Mr Y’s needs change.
• Installation of Mr Y’s Telealarm was within 5 working days (of the referral being assessed). With Mr Y’s identified falls risk the Telealarm could have been installed sooner, within 3 working days.

Is the Council at fault?

35. On the balance of probabilities, Mr Y demonstrated sufficient capacity to understand his care arrangements and there was no reason for the Council to complete a formal Mental Capacity Assessment for him. This is not fault by the Council.
36. There was no requirement for the Council to make a safeguarding referral. The Council assessed Mr Y’s situation on the basis of all the information that was available to it and made the decision to provide support. The Council is correct that this plan appeared to be supported by all parties. On the balance of probabilities, this is not fault by the Council..
37. On the balance of probabilities, the care provided for Mr Y was appropriate to his needs. This is not fault by the Council.
38. There is no evidence to show that the Council ignored concerns by the family. It has subsequently become clear that Mr Y was suffering from a terminal illness that was undiagnosed at the time. This is not fault by the Council.
39. The Council partially upheld Miss X’s complaint about the assessor being accompanied by a student. Miss X and Mr Y were not given an opportunity to agree or object to additional persons being present.
40. There is no evidence to show the Council described Mr Y to other agencies as stubborn. This is not fault by the Council.
41. The Council accepts it did not communicate with Miss X and Mr Y regarding Occupational Therapy services. This is fault by the Council. Miss X and Mr Y were left uncertain when actions were likely to be undertaken. There is no evidence that the actions themselves were unduly delayed.
42. The Council communicated appropriately with Mr Y’s carer’s, his GP practice and Miss X. This is not fault by the Council.

Action by the Council

43. The Council says it has provided guidance to staff to ensure consent is gained for students to accompany staff on assessments and it will apologise for failing to effectively communicate waiting times for Occupational Therapy triage & assessment.

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Agreed action

44. To remedy the outstanding injustice caused by the fault I have identified, the Council has agreed to take the following action within 4 weeks of this decision:
• Apologise to Miss X.
• Provide guidance to staff to ensure consent is obtained prior to being accompanied on visits to service users.
45. The Council should provide us with evidence it has complied with the above actions.

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Final decision

46. I have found fault by the Council, which caused injustice to Miss X and Mr Y. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman