Summary: Mrs P complained on behalf of her father, Mr B, that the Council failed to involve herself and her father in his care planning. She says this meant his wishes were not considered. We have found the Council at fault for inaccuracies in its care records and for failing to follow its published complaints policy. The Council has agreed to apologise to Mrs P for failing to follow its published complaints policy.

The complaint

1. On behalf of her father, Mr B, Mrs P complained the Council:
• Failed to explore the option of Mr B receiving care at home;
• Failed to consider her concerns and contributions as part of the care planning process;
• Led her to believe there was a Deprivation of Liberty Safeguarding (DoLS) in place;
• Refused to complete a Continuing Health Care assessment;
• Completed incorrect information which was not reflective of her father’s needs; and
• Failed to follow its own complaints policy.
2. Mrs P says the Council’s actions had a significant impact on Mr B’s wellbeing and that of his family as he had always wished to remain at home rather than in a care home. Mrs P also says there has been a financial impact. Mrs P would like the Council to apologise and take responsibility for any faults and financial impact and she would like the Council to complete staff training to ensure similar issues do not happen in future.

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The Ombudsman’s role and powers

3. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
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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What I have and have not investigated

5. I have not investigated the part of Mrs P’s complaint which relates to the Continuing Health Care assessment as this has a right of appeal and the law says we should not usually investigate a complaint where there is a right of appeal.
6. I have investigated all other parts of Mrs P’s complaint.

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How I considered this complaint

7. I discussed the complaint with Mrs P and considered the information she provided.
8. I made enquiries of the Council and considered its response.
9. Mrs P and the Council had an opportunity to comment on the draft decision. I considered any comments I received before making a final decision.

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What I found

Legal and administrative background

Assessment

10. 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.
11. 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

12. 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

13. 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

14. 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.

15. 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.
16. 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?

17. 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.
18. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

Best interest decision making

19. 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 also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
20. 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.

Deprivation of Liberty Safeguards (DoLS)

21. The Deprivation of Liberty Safeguards 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. The legislation sets out the procedure 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 Court of Protection. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.
22. The Supreme Court defined deprivation of liberty as when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
23. If there is a conflict about a deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection.
24. 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.
25. 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.

Council complaint procedure

26. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently. A single stage procedure should be enough. The council should include in its complaint response:

• how it considered the complaint;
• the conclusions reached about the complaint, including any required remedy; and
• whether it is satisfied all necessary action has been or will be taken by the organisations involved; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.
  (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)

At the time Mrs P submitted her complaint to the Council, the Council’s published Adult social care complaint policy said the Council would provide an opportunity for complainants to meet with the Council to discuss the complaints process and complete an Individual Complaint Action Plan.

What Happened

27. The following is a summary of key events. It is not intended to be a detailed chronology.

Assessment and care planning

28. Mr B was admitted to a residential dementia unit for emergency respite in August 2022.
29. In September 2022 the Council completed a mental capacity assessment, social care assessment, best interests discussions and updated Mr B’s support plan. These records note that Mr B said he wanted to return home, but a mental capacity assessment found he did not have the capacity to make this decision. The Council considered Mr B’s wish to return home, but it decided it was in his best interest to remain in the residential dementia unit. Records show that Mrs P was part of the best interests discussion.
30. The Council completed a further mental capacity assessment and care needs assessment in October 2022 due to Mr B becoming a self-funding resident at the dementia unit. The mental capacity assessment determined Mr B did not have the capacity to decide his living and care arrangements. The care assessment determined Mr B had care and support needs. A best interests discussion took place, and records show that Mrs P’s preference for Mr B was for him to remain in the dementia unit with 24 hour support. The Council considered Mr B returning home with a package of care, but it decided he should remain in the dementia unit. The Council agreed to review its decision in two weeks to ensure Mrs P was happy with the placement.
31. A care reassessment took place two weeks later which found the dementia unit was a suitable placement and Mrs P’s concerns about the placement had been resolved.
32. In October 2022 Mr B moved to the dementia nursing unit within the same care home. A best interest decision record from October 2022 says this decision was made due to Mr B requiring 24-hour care. The Council’s records show the option of Mr B returning home with a package of care was considered but Mrs P wanted Mr B to remain in the nursing unit as she understood he required 24 hour care. The Council wrote to Mrs P in November 2022 to explain that Mr B would be self-funding this placement from October 2022. Mrs P could request a reassessment of Mr B’s care contributions if his savings fell below the threshold.
33. The Council completed a reassessment of Mr B’s care needs in January 2023. This was to consider whether he needed to be made a permanent resident. The records show Mrs P was considering moving Mr B to a placement closer to her. The assessment determined Mr B needed a high level of care, including close monitoring from mental health staff. Following this assessment Mr B remained in the dementia nursing unit receiving respite care.
34. In October 2023 the Council completed a reassessment of Mr B’s care needs after Mrs P asked for a reassessment to decide the level of long term care he needed. Mrs P told the Council she did not feel Mr B needed the high level of care he was receiving. The family wanted to consider less restrictive choices and the possibility of Mr B returning home with a package of care. The reassessment considered the choices of Mr B returning home, living with family or remaining in 24 hour care. The professional recommendation was that Mr B needed 24 hour care and discussions should be held with the family to consider the options.
35. The Council discussed Mr B’s care options with Mrs P in December 2023. Council records show a number of options were discussed with Mrs P and it was felt more time was needed to consider all the available choices. Mr B would remain in the nursing unit where his needs were met while the family considered the choices.

Inaccurate medical information

36. Throughout Mr B’s care records, between September 2022 and April 2023, it is noted that he had varying degrees of incontinence. Mr B is sometimes noted as being doubly incontinent and at other times it is recorded he has no incontinence. Mrs P has provided one page of a report which says a healthcare professional found no evidence of Mr B being doubly incontinent within his care records.
37. In response to our enquiries the Council explained it based Mr B’s care assessments on the information provided by family and the staff supporting Mr B. It carried the assessments over time, across different settings, with differing levels of support. The care assessments show an overall picture of an individual who was not fully incontinent, and his continence could be managed with the right support.

DoLS

38. Following Mr B’s admittance to the residential dementia unit for emergency respite in August 2022, the care provider issued an urgent DoLS request. Shortly after, Mr B was admitted to hospital, so the care provider closed this request. The dementia unit staff made Mrs P aware the request had been submitted but did not inform her when it was closed.
39. Mr B returned to the dementia unit in September 2022. Council records show it considered whether a DoLS request was needed but it did not consider Mr B’s care to be a deprivation of liberty.
40. The dementia unit did not send a further DoLS request until February 2023. The Council authorised this request in March 2023 and it was in place until Mr B was readmitted to hospital in May 2023.
41. Care assessments completed in January and March of 2023 incorrectly state Mr B was subject to DoLS/court authorisation at this time.
42. The dementia unit sent a further DoLS request in June 2023 when the hospital discharged Mr B back into its care. The Council approved this request and records show there was a DoLS in place until Mr B passed away in September 2024.

Complaint handling

43. In April 2023 Mrs P sent a stage one complaint to the Council about her father’s care.
44. The Council issued a stage one complaint response in July 2023, around two months after the response deadline. The Council did not provide Mrs P an opportunity to meet and discuss her complaint or an individual complaint action plan at this stage.
45. In its stage one complaint response the Council partly upheld Mrs P’s complaint and advised her she could escalate her complaint to stage two if she was unhappy with the complaint outcome.
46. Mrs P contacted the Council and asked to escalate her complaint to stage two. The Council responded two days later and told Mrs P it had used the wrong letter template meaning it had wrongly told her she could escalate her complaint to stage two. The Council explained it had now completed its complaint process. It advised Mrs P she could take her complaint to the Local Government and Social Care Ombudsman if she was unhappy with the outcome.
47. Following further communication with Mrs P, the Council agreed to reconsider its stage one response. Mrs P and the Council attended a resolution meeting, and the Council issued a further stage one response in September 2023.
48. In response to our enquiries the Council told us its adult social care complaint policy was under review at the time Mrs P submitted her complaint and the published policy was not reflective of how the Council managed Mrs P’s complaint. The Council did not publish a notice on its website explaining the policy was under review until early in 2024. This meant Mrs P was unaware the published complaints policy was not being followed.

My findings

49. There is no evidence of fault in the care assessment and planning for Mr B. Council records show it followed correct procedures, communicated with Mr B’s family and considered Mr B’s best interests when planning his care.
50. There is evidence the Council considered Mr B’s wish to return home on multiple occasions, but it was not felt to be a suitable choice due to his care needs. I do not find fault in the Council’s consideration of Mr B’s wishes to return home.
51. I accept the Council’s position that Mr B’s care assessments were carried out over a period of time, during which he was assessed in different settings with differing levels of support which is why some information may not remain consistent. The Council recorded the assessment information it was provided by the professionals involved in Mr B’s care at the time of each assessment. I do not find fault in the Council’s recording of Mr B’s medical needs.
52. The care provider sent a DoLS request in August 2022 but closed the request due to Mr B’s hospital admission. The unit staff made Mrs P aware the request had been submitted but did not inform her it had been closed. The Council did not start the DoLS assessment as the request was closed. There is no fault in the Council closing the request.
53. Between September 2022 and February 2023 there was no DoLS in place for Mr B as the care provider did not submit a request. Records show the Council considered whether a DoLS request was necessary when he was discharged from hospital in September 2022, but it did not consider Mr B’s package of care was a deprivation of liberty. There is no fault in the Council’s DoLS consideration at this time.
54. Care assessments completed in January and March 2023 incorrectly state Mr B was subject to DoLS/court authorisation. This is fault. I do not consider this fault caused significant injustice to Mr B as the previous care assessment had considered the needs for DoLS authorisation and the care provider did not submit a request until March 2023.
55. DoLS authorisation was in place for Mr B’s stay at the dementia unit between March 2023 and September 2024, with some breaks due to hospital admissions. I have not found fault in the Council’s handling of Mr B’s DoLS authorisations from March 2023.
56. The Council issued a stage one complaint response in July 2023, approximately two months after the response deadline. This delay is fault which caused Mrs P frustration and uncertainty.
57. The Council incorrectly told Mrs P she could escalate her complaint to stage two. This is fault which caused Mrs P frustration and uncertainty.
58. The Council failed to make Mrs P aware it was not following its published complaints policy due to it being under review. This meant the Council did not offer to meet with Mrs P to discuss her complaint at stage one. This is fault which caused Mrs P distress, frustration and uncertainty. The Council remedied this injustice by attending a dispute resolution meeting with Mrs P and providing a revised stage one complaint response following this meeting.

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Recommended actions

59. Within one month of the final decision the Council will:
• Apologise to Mrs P for the delay in issuing the stage one complaint response and providing inaccurate information as part of this response. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology.

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Final decision

60. I have completed my investigation. The Council has agreed to apologise to Mrs P to remedy the injustice caused by the faults identified.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman