Summary: The Council failed to carry out a mental capacity assessment for Ms C at the time it should have. The Council’s contracted care agency, Sage Care, also failed to provide the arranged care to Ms C for two days after she was discharged from hospital. The Council was at fault for not carrying out a mental capacity assessment for Ms C sooner than it did, and for the missed care visits to Ms C. Because of the fault, Ms C suffered a lack of care, and it caused stress to her son, Mr D. The Council will apologise to Ms C and Mr D, make a symbolic payment, and issue staff briefings.

The complaint

1. Mr D complains about the Council’s handling of his mother, Ms C’s, care, and support. He says there were delays in the Council carrying out assessments, it failed to safeguard his mother, and the Council’s contracted care agency failed to provide the arranged care and support.
2. He says his mother has suffered a lack of care, and it has caused stress to him and his family.

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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. We may investigate complaints from the person affected by the complaint issues, or from someone they authorise in writing to act for them. If the person affected cannot give their authority, we may investigate a complaint from a person we consider to be a suitable representative. (Local Government Act 1974, section 26A or 34C)
5. Part 3 and Part 3A of the Local Government Act 1974 gives us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applied where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
6. We normally name care homes and other care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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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What I have and have not investigated

9. I have investigated matters in this case from late June 2022 to early March 2024.
10. I have investigated matters from June 2022 as Mr D told me the delay in bringing the complaint to the Ombudsman was due to him giving the Council an opportunity to resolve matters first, before bringing the complaint to us too early.
11. I have investigated the parts of Mr D’s complaint about delays in the Council carrying out assessments, the Council’s failure to safeguard Ms C, and the missed care visits by Sage Care.
12. I have not investigated any reference to delays in a dementia assessment for Ms C, or any issues about her medication blister packs. Such matters are the responsibility of the GP, not the Council.

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How I considered this complaint

13. I read Mr D’s complaint and spoke to him about it on the phone.
14. I considered information provided by Mr D and the Council.
15. Mr D and the Council have had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

16. The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person’s needs are and whether the person has any needs which are eligible for support from the council.
17. The Guidance says the assessment must involve the individual and where suitable their carer or any other person they might want involved. (Care & Support Guidance, paragraph 6.9)
18. Where councils have determined that a person has any eligible needs, they must meet those needs. The person’s needs and how they will be met must be set out in a care and support plan.

Mental capacity

19. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
20. 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.
21. If a council thinks a person may lack capacity to make a decision or a plan, it should carry out a capacity assessment. For example, it may assess whether the person has the capacity to decide whether family members should be involved in their care planning. (Care & Support Guidance, paragraph 10.63)
22. If there is a conflict about whether a person has capacity to make a decision, or about what is in the person’s best interest, an application can be made to the Court of Protection. The Court of Protection may appoint a deputy to make decisions for people lacking capacity to make those decisions.

Safeguarding

23. Section 42 of the Care Act 2014 says a safeguarding duty applies where an adult:
• has needs for care and support;
• is experiencing, or at risk of, abuse or neglect; and
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.
24. If the section 42 threshold is met, the Council must make enquiries or cause others to do so. An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect and if so, by whom.

What happened

25. This is a summary of events, outlining key facts and it does not cover everything that has occurred in this case.
26. In early June 2022, Ms C was admitted to hospital to treat an infection. The Council’s Adult Social Care Services did not know of Ms C at this point. She was discharged from hospital in late June 2022 with a care and support plan of three care visits daily by Sage Care.
27. In early July 2022, Ms C was admitted to hospital again after complaining of feeling unwell. The Council carried out a care review a few days later and decided to increase Ms C’s care and support plan to four care visits daily.
28. Sage Care confirmed the package of care would resume on 25 July 2022, and on 25 July 2022, Ms C was discharged from hospital.
29. At a care visit on 27 July 2022, Ms C’s carers realised she had not received care for the two days since she had been discharged from hospital. Sage Care later raised a safeguarding concern to the Council.
30. On 28 July 2022, Mr D raised a complaint with the Council about the lack of care and communication from Sage Care, and issues with Ms C’s medication blister packs.
31. On 12 August 2022, the Council sent its complaint response to Mr D. It told him:
• It apologises for the distress caused to both him and Ms C.
• It had started a safeguarding investigation into how Sage Care missed care visits.
• It had arranged a follow-up assessment to discuss concerns about Ms C’s care and to outline which tasks carers need to complete as part of the care and support plan.
32. The Council completed a follow-up assessment in mid-August 2022 where it agreed to a referral to the Extra Care service, with the consent of Ms C and Mr D. Ms C was placed on the waiting list for this service.
33. In August 2023, the Extra Care service assessed Ms C during a visit with Mr D. Ms C decided she did not want to move and wanted to remain in her flat.
34. In mid-November 2023, the Council carried out a care and support plan review.
35. In mid-December 2023 a social worker made a home visit to look into concerns Sage Care had raised with the Council that Ms C had refused some care and may be declining. The social worker assessed Ms C as being able to remain at home with support. The Council reduced the care and support plan to two care visits daily as Ms C told the social worker she had been refusing care visits as she did not need four visits a day.
36. In early January 2024, Sage Care raised concerns with the Council again about Ms C declining care. The Council later made a referral to the GP at the end of January 2024 for a capacity assessment.
37. On 29 January 2024, Mr D raised a second complaint with the Council. He told it:
• Social care support was still inadequate.
• The lack of care Ms C had been receiving was unacceptable.
• He was still waiting for a dementia assessment for Ms C.
38. On 31 January 2024, the Council sent its complaint response to Mr D. It told him:
• It had asked the GP to assess Ms C’s mental state several times, including on 8 December 2023 and 29 January 2024, but this still had not happened.
• It cannot force Ms C into supported housing or residential care if Ms C retains the capacity to refuse. It told Mr D once it had received a medical diagnosis from the GP, it would work with the family and Ms C to determine the best way to support her.
• Ms C should have a mental capacity assessment carried out, and it had asked for this to be done as soon as possible.
39. On 8 March 2024, the Council carried out a care and support plan review, where the care and support plan was unchanged. It also carried out a mental capacity assessment and decided Ms C had the capacity to make the decision regarding her care and support and to remain at home.

Analysis

40. There were no delays in the Council completing care and support assessments for Ms C, or in a home visit carried out by the Council in October 2023. The Council carried out an assessment when Ms C was discharged from hospital in July 2022 and an assessment at Ms C’s home in mid-August 2022. I have not found any evidence of fault in how the Council completed the assessments, and the Council regularly reviewed Ms C’s care needs, in November 2023 and March 2024.
41. The Council carried out a mental capacity assessment for Ms C in March 2024, despite there being earlier concerns about Ms C’s capacity. In response to my enquiries, it said it did not complete a mental capacity assessment sooner because Ms C had displayed she could make clear decisions about her care. The Council said during Ms C and Mr D’s Extra Care service visit, Ms C was clear that she did not want to move, and she wanted to remain in her home. It said a mental capacity assessment was not required at this time as her decision making was clear, she was retaining information and the Council was working on the assumption she had capacity, in line with legislation.
42. Councils should always ensure they respect the first principle of assuming capacity, as outlined in paragraph 20, but it is important to carry out an assessment when a person’s capacity is in doubt, as detailed in the Code. References to a person’s capacity is whether the person has capacity to make a particular decision at the particular time it needs to be made. So in this case, the question is whether Ms C had capacity to make decisions about her care when they needed to be made. Sage Care raised concerns with the Council in early January 2024 that Ms C was refusing care and potentially putting herself at risk. So at this point, the Council should have raised the question as to whether Ms C had the capacity to make the decision to refuse care. It made a referral to the GP several weeks after concerns were raised, but there was nothing to prevent it carrying out its own capacity assessment. It did not do this. This was fault.
43. In response to my draft decision the Council told me it disagrees it was at fault for not carrying out a mental capacity assessment for Ms C sooner. It told me when Sage Care raised concerns about Ms C in January 2024, she was still deemed to have capacity as she was able to understand information in relation to her care and support and was able to communicate this. The Council also said Ms C has always consistently refused care. While I have considered the Council’s comments, my view remains unchanged. If it was usual for Ms C to refuse care as the Council says and the care records show, the Council should have questioned why concerns were raised at this point about Ms C refusing care and potentially placing herself at risk. This should have led the Council to consider if a further capacity assessment was appropriate. It did not do so until several weeks later.
44. While the Council should have completed a mental capacity assessment sooner than it did, I consider the injustice to Ms C was limited. The mental capacity assessment completed in March 2024 decided Ms C has the capacity to make decisions regarding her care and support and to remain at home. So, had the Council completed a mental capacity assessment sooner, it is likely it would have reached the same decision that Ms C has capacity to make decisions about her care and support.
45. Given the outcome of the mental capacity assessment, I do not consider the Council was at fault for Sage Care not providing all the arranged care to Ms C on the occasions Ms C declined care. Further, the Council took Ms C’s refusals into consideration and made attempts to mitigate this. It reduced Ms C’s care and support plan to two care visits daily with the agreement of Ms C and Mr D, as Ms C told the Council she was refusing some care visits as she did not require four visits daily.
46. However, the Council was at fault for the care visits Sage Care did not complete between 25 and 27 July 2022 when Ms C was discharged from hospital. In response to my enquiries the Council told me how this had happened. It said a charity took Ms C home when she was discharged from hospital, and Ms C had asked it to give her the keys to her home instead of it putting them back in the key safe. The charity gave Ms C the keys and did not tell anyone about this. The Council told me the care and support plan began again on 25 July 2022, and the carer carried out the scheduled care visits, but they could not gain entry to Ms C’s home. The carer should have followed the Council’s ‘no-reply’ policy. The ‘no-reply’ policy is a policy the Council has in place for carers to follow when they cannot gain entry for a care visit to take place, or the individual is unresponsive. Had the carer followed the policy, the Council told us this would have resulted in an escalation to Adult Social Care services, a welfare visit to Ms C, and entry to her home. The carer did not follow the Council’s policy. This was fault. This fault meant Ms C went without care for two days, until access to her home was gained on 27 July 2022. It also caused distress to Mr D when he became aware of the situation.
47. Sage Care raised a safeguarding concern about the missed care visits with the Council. There is no evidence of fault in how the Council carried out the safeguarding investigation, and it took appropriate actions following the investigation. This included asking Sage Care to review its processes to ensure it has a clear understanding of its responsibilities in relation to missed visits, and training to be provided to carers about the ‘no-reply’ procedure.
48. Sometimes we will recommend a financial payment to the person who brought their complaint to us. This might be to reimburse a person who has suffered a quantifiable loss, or it might be more of a symbolic payment which serves as an acknowledgement of the distress or difficulties they have been put through. But our remedies are not intended to be punitive and we do not award compensation in the way a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider.
49. The Ombudsman has published guidance to explain how we calculate remedies for people who have suffered injustice because of fault by a Council. Our primary aim is to put people back in the position they would have been in if the fault by the Council had not occurred.

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Agreed actions

50. To remedy the outstanding injustice caused to Ms C and Mr D by the fault I have identified, the Council will take the following actions within four weeks of my final decision:
• Apologise to Ms C and Mr D for the missed care visits between 25 and 27 July 2022. This apology should be in accordance with the Ombudsman’s guidance Making an effective apology.
• Pay Ms C a symbolic payment of £100 to acknowledge the injustice caused by the missed care visits.
51. Within three months, the Council will also issue staff briefings to relevant staff to remind staff of the importance of:
• following the Council’s ‘no-reply’ policy;
• completing a mental capacity assessment when there is concern about a person’s capacity to make a particular decision; and
• knowing what signs to look out for which may indicate a person lacks the capacity to make a particular decision and that an assessment should be carried out.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I have completed my investigation and uphold Mr D’s complaint. There was fault by the Council which caused injustice to Ms C and Mr D. The action it has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman