Summary: Mrs Y complains about delays in the Council’s assessments of her mother, Mrs Z, once she moved into a care home in 2022. In our view, there was delay in the allocation of a social worker and the subsequent care and support needs assessment. There was also some delay in completing the Deprivation of Liberty Safeguard authorisation. The Council has already waived some of the care home fees. It will also apologise to Mrs Y in recognition of her time and trouble.

The complaint

1. Mrs Y complains that delays in the Council’s social care assessments meant that Mrs Z became reliant on residential care and could not return home before her death.
2. Mrs Y says she was not made aware that a Deprivation of Liberty Safeguard (DoLS) was not renewed and there was not a best interest decision until nine months after Mrs Z moved into the residential home. Consequently, Mrs Y says there was no formal basis to keep her mother in the care home against the family’s wishes.
3. Mrs Y also complains that delays in the financial assessment caused confusion regarding the correct charges to be paid.

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The Ombudsman’s role and powers

2. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by their personal representative (if they have one), or someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)
3. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused a significant injustice or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(3 and 4) 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)

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How I considered this complaint

5. During my investigation I discussed the complaint with Mrs Y and considered the information she provided.
6. I made enquiries of the Council and considered its response alongside the relevant law and guidance which I have referred to in this statement.
7. Mrs Y and the organisation 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

Mental capacity and best interests

8. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make certain 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 key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker must consider if there is a less restrictive choice available that can achieve the same outcome.
10. 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 and Deputyship

11. The Court of Protection (CoP) deals with decision-making for adults who may lack capacity to make specific decisions for themselves. If there is a need for continuing decision-making powers and there is no relevant Enduring Power of Attorney (EPA) or Lasting Power of Attorney (LPA), the CoP may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian (OPG) oversees the work of attorneys and court-appointed deputies and produces detailed guidance for them.

Deprivation of Liberty Safeguards

12. The Deprivation of Liberty Safeguards (DoLS) provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.
13. The legislation sets out the procedures to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the CoP. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.
14. Once there is or is likely to be a deprivation of liberty, it must be authorised under the DoLS scheme in the Mental Capacity Act 2005.
15. The ‘managing authority’ of the care home (the person registered or required to be registered by statute) must request authorisation from the ‘supervisory body’ (the council). There must be a request and an authorisation before a person is lawfully deprived of their liberty.
16. The statutory Code of Practice says assessments must be completed within 21 days for a standard deprivation of liberty authorisation, or, where an urgent authorisation has been given, before the urgent authorisation expires

Background summary of key events relevant to the complaint

17. Mrs Z previously lived in her own home. In November 2021 she suffered a fall and went into hospital. At the time her family hoped for Mrs Z to return home with an appropriate package of care to meet her needs.
18. Whilst in hospital Mrs Z became delirious. A CT scan showed that Mrs Z had a condition affecting the small blood vessels in her brain. A social worker was allocated to Mrs Z’s case to support with discharge plans, but these were delayed due to Mrs Z’s delirium.
19. In January 2022, and whilst still in hospital, the Council assessed Mrs Z’s mental capacity to make decisions about her finances. The assessment concluded that Mrs Z did not have the mental capacity to make any such decisions. As there was no LPA in place, the Council said the family would need to apply to the CoP for deputyship.
20. The Council also completed a capacity assessment to see whether Mrs Z could make decisions about her care and support. The assessment concluded that Mrs Z did not have the mental capacity to make any such decisions. At this time Mrs Y also remarked that Mrs Z was not safe in her own home which was not maintained to a hygienic and safe standard.
21. Following both capacity assessments, the Council completed the Best Interests decision making process in January 2022. This concluded, after speaking with all relevant people and considering the available evidence that, “going home would be least restrictive however this does not meet her needs… disregarded as there would not be any support to meet her needs in between the carers visits”. Mrs Y also said she was, “…. concerned about [Mrs Z] not being safe on her own at home and previously living in an unhygienic home environment. She is prone to declining support from her family and they [needs] would not be met if she returned home”.
22. The hospital discharged Mrs Z in late March 2022 to a care home under the ‘discharge to assess’ pathway. This is used when a person is ready to leave hospital, but not well enough to return to their home. During their time in the care home, the person will be assessed to determine their long term needs and place of residence. Mrs Y did not raise any concerns about the decision to discharge Mrs Z.
23. Mrs Z’s placement at the home was funded by the NHS for the first four weeks.
24. Two days after her admission to the home, staff requested an urgent Deprivation of Liberty Safeguard (DoLS) assessment for Mrs Z.
25. The short-term health funding ended. The family decided that Mrs Z would remain in the home on a short-term basis for a residential short break.
26. Assessments concluded that Mrs Z was not eligible to receive ongoing health funding, either through Continuing Healthcare (CHC) or Funded Nursing Care (FNC). The Council said it would normally conduct a financial assessment at this time to determine how much Mrs Z would need to contribute to the cost of her placement. It says it could not do so because Mrs Z lacked capacity and there was no LPA or deputyship yet in place.
27. The Council contacted Mrs Y in April to gather her views about Mrs Z’s ongoing care and support needs and to explain the process.
28. In May the Council undertook checks which showed that Mrs Z was the sole owner of her house. The Council planned to progress to a full financial assessment but the application for deputyship remained ongoing.
29. In the meantime, the residential care home confirmed that Mrs Z was settled and her needs were being met.
30. The Council contacted Mrs Y again in June to reassure her that Mrs Z’s case had not been forgotten but was still awaiting allocation of a worker. The Council made further contact in July to apologise for the ongoing delays. Mrs Y did not raise any concerns about Mrs Z’s placement at this point and expressed that she was settled and her health and stabilised.
31. On 2 August 2022 the Council contacted Mrs Y to confirm it had allocated a social worker to complete an assessment of Mrs Z’s care and support needs. The social worker agreed to call Mrs Y again on 15 August with a further update.
32. Mrs Y contacted the social worker later that month to say the CoP needed a copy of the DoLS authorisation by 25 August. Following this, the Council made arrangements to allocate an officer to start the DoLS process.
33. The social worker visited Mrs Z in the care home on 24 August. Mrs Y and her brother were also present. The social worker had discussions with Mrs Y about the DoLS process. They also said another mental capacity assessment needed to take place regarding Mrs Z’s permanent placement. The Council says no concerns were raised during this visit.
34. The Council started the DoLS assessment and contacted Mrs Y to obtain her views. The DoLS form states “[Mrs Y] has verbally agreed to the Best Interest Assessor that she is willing to act as [Mrs Z’s] Relevant Persons Representative”. The DoLS form also relays Mrs Y’s views, “[Mrs Y] and her siblings are happy with the care that [Mrs Z] is receiving at [the care home] and have no concerns. They are happy that she is now cared for and has stability”.
35. On 26 October 2022 the Council sent a copy of the social care needs assessment and mental capacity assessment to Mrs Y. At this point Mrs Y raised concerns about the funding of Mrs Z’s placement. Mrs Y says she was told Mrs Z would receive a total of ten weeks of fully funded care. Mrs Y also said that, if the assessment had concluded sooner, that Mrs Z would have been able to return home with a package of care.
36. The Council confirmed the DoLS authorisation was complete, with no challenge. The DoLS would remain in place for one year and until 23 August 2023.
37. On 7 December 2022 a Best Interests meeting went ahead. The record of the meeting states, “[Mrs Y and her brother] confirmed regular contact with her family is important and they feel their mother is better off living at [the care home] as prior to hospital admission their mother was not looking after herself as well as she should have done”.
38. The meeting weighed up the pros and cons of all available options for Mrs Z. Mrs Y contributed to that discussion. The meeting concluded that it was in Mrs Z’s best interests to remain in permanent residential care. The Council did not receive any challenges to that decision.
39. The deputyship was awarded by the CoP in June 2023. From this point the Council was able to complete a full financial assessment. This concluded that Mrs Z was liable to meet the full cost of her care due to having sole ownership of a house, the value of which was no longer disregarded.
40. Following the financial assessment, Mrs Z’s care was charged for as follows:
• 30 March to 26 April 2022. Funded under the NHS discharge to assess pathway.
• 27 April to 18 October 2022. Mrs Z resident under a ‘residential short break’ contract. Due to the delays in assessing Mrs Z, the Council agreed not to charge for this period.
• 19 October to 6 December 2022. Mrs Z remained resident under a short break contract. The financial assessment concluded that Mrs Z would be liable to make a weekly contribution of £170.50.
• 7 December 2022 onwards. The best interests decision said that Mrs Z’s placement should become permanent with a weekly contribution of £184.44.

The Ombudsman’s analysis

Complaint a)

41. Mrs Y says that delays in the allocation of a worker and the subsequent assessment of her mother’s care and support needs had a direct impact on Mrs Z’s chances of returning home. She says this is because Mrs Z’s health declined during the period of delay, and she became reliant on residential care.
42. In response to the Ombudsman’s enquiries the Council has acknowledged there was delay in allocating a social worker to Mrs Z’s case and completing the care and support needs assessment, which eventually took place in August 2022.
43. When assessing the injustice arising from the delay, we have considered the impact on both Mrs Z and Mrs Y. During the period of delay Mrs Z’s needs were being appropriately met by the care home. The delay therefore had no impact on her support needs. On the other hand, the delay did cause time trouble and frustration for Mrs Y who felt like her mother had been forgotten.
44. As a remedy for the complaint the Council agreed to waive the charges for 25 weeks (from 27 April to 18 October 2022). This amounts to approximately £4262.50. As a substantial financial remedy has already been provided, I do not recommend any further payments to remedy injustice caused by delay. However, the Council will provide a letter of apology to Mrs Y.

Complaint b)

45. The DoLS was effective from the end of August 2022. Mrs Y says she was made to believe the DoLS previously in place at hospital had been transferred to the care home and, as such, Mrs Z was prevented from leaving. She has recently found out that Mrs Z was not subject to a DoLS between March and August 2022. Had she known, Mrs Y says she could have made arrangements for Mrs Z to return home with a package of domiciliary care.
46. I have reviewed the available records. There is no evidence that Mrs Y was misadvised or mislead about the status of the DoLS. Although the care home had requested one as soon as Mrs Z moved into the home, and the Council had a statutory timescale of 21 days to complete the assessment, it was not prioritised as Mrs Z was not in distress nor at risk of trying to leave. However, once the CoP requested the DoLS paperwork as part of the deputyship process, the Council completed the assessment and submitted the outcome without further delay.
47. The records also show that all family members consulted in early 2022 agreed that Mrs Z’s needs were being appropriately met and it would not have been in her interests to return home. This is because she needed 24-hour care and it is unlikely that a domiciliary care package would have adequately met Mrs Z’s needs as family were unable to provide support in-between care visits.
48. The best interests decision in January 2022 also concluded that it was in Mrs Z’s best interests to move into a care home. If Mrs Y had removed her mother from the care home in early 2022 – and before the DoLS was completed – she would have been acting against this decision. Mrs Y did not have LPA or deputyship at the time.
49. In my view, although there was delay in completing the DoLS assessment, this delay did not cause the lost opportunity which Mrs Y claims. This is because the records show that Mrs Z’s care and support needs in early 2022 were too high for her to safely return home. This was a viewpoint accepted by all professionals and family members at the time.

Complaint c)

50. Mrs Y complains there was delay in the financial assessment which caused confusion as there was a lack of clarity around the amount Mrs Z would need to contribute to the cost of her care.
51. The records show there was delay in the completion of the financial assessment. In my view, this delay was not due to fault. This is because the Council had assessed Mrs Z as lacking mental capacity to make her own financial decisions. Mrs Z did not have LPA in place.
52. The Care and Support Statutory guidance sets out the approach councils should take in these circumstances:

“Sometimes it is useful to consult with and engage with family members; however, family members may not have the legal right to access the person’s bank accounts. Where possible, local authorities should work with someone who has the legal authority to make financial decisions on behalf of a person who lacks capacity. If there is no such person, then an approach to the Court of Protection is required”.

“At the time of the assessment of care and support needs, the local authority must establish whether the person has the capacity to take part in the assessment. If the person lacks capacity, the local authority must find out if the person has any of the following as the appropriate person will need to be involved:

• enduring power of attorney (EPA)
• lasting power of attorney (LPA) for property and affairs
• lasting power of attorney (LPA) for health and welfare
• property and affairs deputyship under the Court of Protection
• any other person dealing with that person’s affairs (for example, someone who has been given appointeeship by the Department for Work and Pensions (DWP) for the purpose of benefits payments)

People who lack capacity to give consent to a financial assessment and who do not have any of the above people with authority to be involved in their affairs, may require the appointment of a property and affairs deputyship. Family members can apply for this to the Court of Protection, or the local authority can apply if there is no family involved in the care of the person. While this takes some weeks, it then enables the person appointed to access information about bank accounts and financial affairs. A person with dementia for example should not be ‘forced’ to undertake a financial assessment, to sign documents they can no longer understand and should not be punished for any incomplete information that is elicited from them. The local authority should be working with an EPA, a LPA or a deputy instead”.

53. While I appreciate and acknowledge Mrs Y’s frustrations regarding the length of time taken to secure the deputyship, this was not due to any fault by the Council. In the meantime, the Council was unable to complete a full financial assessment because there was nobody who had authority to access information about Mrs Z’s financial affairs. Consequently, the Council could not determine how much – if any – Mrs Z would need to pay towards the cost of her care. Furthermore, I have not seen any information which would indicate that Mrs Y was led to believe that the initial four-week health funding would continue on a long-term basis.

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Agreed action

54. Within four weeks of our final decision the Council will apologise to Mrs Y for the delay incurred when assessing Mrs Z’s care and support needs. The apology should be written in accordance with the Ombudsman’s guidance on Making an Effective Apology.
55. The Council will 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 for the reasons explained in this statement. While the Council has already provided some financial redress in recognition of the fault, it will also apologise to Mrs Y to acknowledge her time and trouble.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman