Summary: The Council acknowledged some failings in the assessment of Mrs Y care needs and made recommendations to address this before the complaint came to this office. Any further investigation by this office could achieve no more.

The complaint

1. Mrs X complains the Council has failed to properly assess her grandmother, Mrs Y’s, care needs and plan her long-term care.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• we could not add to any previous investigation by the organisation; or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I have:
• considered the complaint and discussed it with Mrs X;
• considered the correspondence between Mrs X and the Council, including the Council’s response to his complaint;
• taken account of relevant legislation;
• offered Mrs X and the Council an opportunity to comment on a draft of this document.

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What I found

Relevant legislation

4. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual 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.
5. 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. 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 themselves.
6. There are five principles which underpin the Act.

• Principle 1: A presumption of capacity
• Principle 2: Individuals being supported to make their own decisions
• Principle 3: Unwise decisions
• Principle 4: Best interests
• Principle 5: Less restrictive option.

7. People cannot be assumed to lack capacity because of age, appearance, condition or behavior.
8. People should receive support to help them make their own decisions. Before concluding that someone lacks capacity to make a particular decision, it is important to take all possible steps to try to help them reach a decision (principle 2).
9. People have the right to make decisions that others might think are unwise and should not automatically be labelled as lacking the capacity to decide (principle 3).
10. A council must assess someone’s ability to decide, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
11. A Council must arrange for an independent advocate to assist the involvement of a person in the assessment process if:
• they have a substantial difficulty in being involved; and
• there is no one available to support them and represent the person’s wishes.

Background

12. Mrs Y is in her nineties. Prior to the matters complained about, she lived at home and was cared for by her two daughters. In August 2023, she had a fall and went into hospital.
13. The Council’s records show Mrs Y expressed a wish to return to her own home on discharge from hospital.
14. Mrs X says the family had been concerned about Mrs Y’s cognitive functioning and her ability to manage at home for some time. They raised with the hospital discharge team and the Council’s social services duty team.
15. Mrs Y was discharged to a respite care placement to allow assessment of her long-term care needs.
16. Mrs X says the family have no concern about the care Mrs Y received whilst in respite care.
17. During Mrs Y’s respite stay she had input from an Occupational Therapist (OT). As part of the OT assessment, a cognitive screening of Mrs Y was completed on 19 September 2023. Cognitive screening tests are a standard measure of cognitive functioning. The test concluded Mrs Y to have significant cognitive impairment. Mrs X says the OT informed the family that because of Mrs Y’s impairment she (OT) would recommend Mrs Y remain in residential care on a permanent basis.
18. The Council says Mrs Y presented different during the social worker's visits, that she presented with some memory loss, but she was not confused and was orientated to time and place.
19. The Council says the OT was aware of the differing opinion about Mrs Y’s long-term accommodation needs and suggested to the social worker that Mrs Y may benefit form an independent advocate.
20. A social worker visited Mrs Y on 22 September 2023, Mrs X and other members were present. Mrs X says the family were concerned about Mrs Y’s ability to understand the information given by a social worker. The family reiterated their concerns about Mrs Y’s ability to manage at home, and that they could not continue providing the same level of support they had previously.
21. The Council’s records show that due to the length of the meeting the assessment had to be suspended, with the intention to complete it on a different day.
22. Following the meeting the social worker contacted a family member to confirm Mrs Y’s wish to return home, and to acknowledge the family’s concerns. The family member asked the social worker to inform another family member, which the social worker agreed to do.
23. The social worker visited Mrs Y again on 5 October 2023 and completed the assessment. The family were unable to be present because Mrs Y had a positive covid test.
24. Family members contacted the social worker on 10 October 2023 to request a meeting to discuss their concerns about Mrs Y. The family also requested the Council source an advocate for Mrs Y. The social worker made the referral on 27 October 2023. The Council acknowledges this should have been done sooner.
25. The meeting took place on 13 October 2023. During the meeting the family requested the Council undertake a formal mental capacity assessment of Mrs Y to determine her capacity to decide where she should live.
26. A social worker, along with a member of Mrs Y’s family visited Mrs Y again on 23 October 2023. The Council says the social worker had no concerns about Mrs Y’s capacity to decide where she should live, so a formal capacity assessment was not necessary. However, the Council acknowledge this was not clearly documented in the Council’s records.
27. Mrs X says the social worker gave the family inaccurate information about the criteria for residential care placements. The family were told as Mrs Y had no overnight care needs, she was not eligible for residential care. The Council acknowledged the information provided by the social worker, which was also available on the Council’s website, was out of date.
28. Mrs X says the Council’s assessment of Mrs Y’s care and accommodation needs is flawed because it failed to take account of information from the OT, failed to involve the family, and a formal capacity assessment had not been completed. Mrs X says this has delayed decisions about Mrs Y’s long-term accommodation needs. Mrs Y remains in a temporary residential placement.
29. The family dispute the Council’s proposal to return Mrs Y home with a care package.
30. Mrs X submitted a formal complaint to the Council in October 2023. The Council contacted Mrs X on 9 November 2023 to agree a summary of complaint.
31. I have had sight of the Council’s written complaint response dated 22 January 2024. The author addressed each point of complaint and set out the findings of the investigation. Three points of complaint relating to the process of Mrs Y’s assessment were upheld, two were partially upheld and two were not upheld. One point, relating to a proposed future care package was found to be inconclusive, because a support plan had not been completed.
32. The Council agreed to:

• undertake a further assessment of Mrs Y’s care and accommodation needs, in consultation with the family;
• complete a mental capacity assessment of Mrs Y in relation to her care and accommodation needs;
• chase up a referral made for advocate for Mrs Y;
• disseminate advice to practitioners in social care about best practice;
• amend/improve information available to the public about adult care services;
• consider development of practitioner guidance around residential care criteria

Analysis

33. I am satisfied the Council properly investigated Mrs X’s complaint before a complaint was brought to this office. The Council set out its findings on each aspect of the complaint and adequately explained the evidential basis for its decisions. It acknowledged some failings in the assessment process and agreed to reassess Mrs Y’s needs, alongside the other actions set out above.
34. Any further investigation by this office would achieve no more.
35. Disputes about where a person should live are not within the Ombudsman’s jurisdiction. Such disputes are considered by the Court of Protection.

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Final decision

36. The Council acknowledged some failings in the assessment of Mrs Y care needs before the complaint came to this office. It agreed to reassess her care needs and undertake a formal mental capacity assessment. A decision about her long-term care needs will then be made.
37. Any further investigation by this office could achieve no more.
38. It is on this basis; the complaint will be closed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman