Summary: Mrs X complained that the Council failed to take adequate action when she raised concerns about her late mother’s health and living conditions despite having knowledge of her history of mental health problems and hoarding behaviours. We found no grounds to criticise the Council’s actions. However, it was at fault in that it delayed in responding to Mrs X’s complaint. The Council has provided a satisfactory remedy for the injustice caused by this.

The complaint

1. Mrs X complains that the Council failed to support her late mother, Mrs Y, over the years. She also says the Council failed to take adequate action when concerns were raised by Mrs X and the ambulance service about Mrs Y’s health and living conditions despite having knowledge of her history of mental health problems and hoarding behaviours. Social workers visited the property but left when they could not gain access. When they visited again a few days later Mrs Y had died.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
3. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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What I have and have not investigated

4. The Ombudsman will not normally investigate complaints about matters which took place more than 12 months before someone complained to us.
5. I have exercised discretion to investigate Mrs X’s complaint about events which took place in 2022 because she has provided good reasons for not complaining to us sooner. However, I am not investigating her complaint about lack of support provided to Mrs Y by the Council prior to this. The Council was involved with Mrs Y for several years and closed its file in 2020. Mrs X could have complained to us at any time during that period and I do not consider she has provided good reasons for failing to do so. I will not therefore exercise discretion to investigate this complaint.

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How I considered this complaint

6. I have considered all the information provided by Mrs X, made enquiries of the Council and considered its comments and the documents it provided.
7. Mrs 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

Legal and administrative background

Safeguarding

8. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. (section 42, Care Act 2014)

Mental capacity assessment

9. 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.

10. 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.
11. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
12. 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?
13. 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.

Key facts

14. The Council’s adult social care team had been involved in supporting Mrs X’s mother, Mrs Y, over several years because of a deterioration in her mental health, self-neglect and hoarding behaviours. In 2020 the team closed Mrs Y’s case.
15. On 19 April 2022 Mrs X called an ambulance saying Mrs Y had fallen and was having breathing problems. Mrs X said she was unable to access the property and Mrs Y lived alone.
16. The ambulance service attended and made a referral to the Council recommending a social care assessment of Mrs Y’s home environment. The crew also made a safeguarding referral to the Council. They had carried out a mental capacity assessment and believed Mrs Y had capacity to make her own decision about consent to the referral, which she declined. Despite this, they made the referral because they were concerned that Mrs Y’s lifestyle presented a risk to the health and safety of others because of risk of fire and vermin.
17. The crew stated that they had found Mrs Y lying on top of a pile of detritus which was higher than her bed. It extended into the hallway and other rooms preventing free movement. They said Mrs Y was unable to sit unaided and appeared to be self-neglecting. She was unable to access a telephone to call for help, unable to walk and unable to get safe access to food or drink apart from the limited supply that she had within reach. The crew stated that Mrs Y refused consent to be taken to hospital for tests and they were concerned about her mental health. The crew recommended a rapid assessment of Mrs Y’s needs alongside consideration of legal frameworks to support her receiving care. They also recommended an assessment of fire mitigation be carried out as soon as possible.
18. On 20 April Mrs X contacted social services raising concerns for Mrs Y’s welfare. She said she had gone to visit Mrs Y after a friend had raised concerns. Mrs Y would not allow her into the property but said she had fallen. Mrs X called an ambulance against Mrs Y’s wishes. She said the property was cluttered and the kitchen and bedroom were not accessible. Mrs Y was unable to open the back door because of the clutter. Mrs X also said she could smell the inside of the property from outside.
19. A senior social worker, Officer A, made an urgent referral to the community welfare team and to the welfare support service to see if they could visit.
20. The same day an officer from the welfare support service visited. He reported that he had spoken to Mrs Y but did not see her. He said there was a strong smell of rotting rubbish. Mrs Y said all she needed was a mobile phone and that she was “alright”. The officer stated that, in his opinion, she was not.
21. The same day Officer A visited with a colleague. Mrs Y declined to let them into the property but spoke to them through the letterbox. Officer A attempted to pass food items through the window but it was locked. She then tried the back door which was also locked. She was able to glimpse the interior of the property which was cluttered.
22. On 21 April a caseworker, Officer B, was allocated to Mrs Y. Officer A was to work with her. She has explained that the plan was to try to engage with Mrs Y and to consider the Vulnerable Adults Risk Management Meeting which is a pathway Mrs Y had been on a few years previously. This is the starting point for any adult at risk of self-neglect due to hoarding.
23. Officer A had other complex cases already booked into her diary, so the next available date for a visit was 26 April. Officer A has explained that, because she had no serious concerns for Mrs Y’s well-being on her previous visit, she did not consider a second visit was required immediately.
24. On 26 April Officer A and Officer B visited Mrs Y’s property. They could not get a response and requested assistance from the emergency services. Paramedics managed to gain access to the property and found that Mrs Y had died.
25. In April 2023 Mrs X complained to the Council about the handling of Mrs Y’s case. The complaint was allocated to an investigating officer in September 2023. She interviewed officers and prepared a detailed report which was considered at an adjudication meeting in April 2024. On 7 May 2024 the adjudicating officer wrote to Mrs X enclosing a copy of the report and apologised for the delay in responding to her complaint.

Analysis

26. Mrs X says social workers should have done more when they visited Mrs Y on 20 April 2022.
27. The Council’s case notes show that Mrs Y repeatedly refused officers access to the property and their offers of help. Officer A considered Mrs Y had mental capacity and so respected her wishes. The ambulance crew who visited on 19 April carried out a mental capacity assessment and believed Mrs Y had capacity to make her own decision about consenting to a safeguarding referral. Section 1 of the Mental Capacity Act makes it clear that an adult can make unwise decisions without this necessarily indicating a lack of capacity.
28. The Social Care Institute for Excellence has issued guidance, ‘Gaining access to an adult suspected to be at risk of neglect or abuse - a guide for social workers and their managers in England’. This guidance states that good safeguarding practice begins with talking to the adult in question to establish facts and find out what they want to happen and how. It states that people must be assumed to have capacity to make their own decisions and be given all practical help to do so before they are treated as not being able to make their own decisions.
29. Given that officers considered Mrs Y had mental capacity to refuse support, I do not consider there is anything further they could have done at their visit on 20 April. They clearly spent some time trying to convince Mrs Y to accept assistance, but she declined. Social workers do not have legal power to enter someone’s home without their consent. They must also have regard to Article 8 of the European Convention on Human Rights which states that everyone has the right to respect for private and family life.
30. Mrs X says officers should have made a second visit to Mrs Y sooner than they did. However, Officer A has explained that she had no serious concerns for Mrs Y’s well-being on her visit as she was engaging with her. Mrs Y also said she had enough food. Officer A considered that she was not in any immediate danger and so did not consider a second visit was required immediately. There are no grounds to criticise this decision which was a matter for her professional judgement.

Complaint handling

31. In April 2023 Mrs X complained to the Council. Because of waiting lists, an investigating officer was not allocated until 27 September 2023. The Council accepted it failed to keep Mrs X updated during this period.
32. The Council did not issue a response to Mrs X’s complaint until 7 May 2024. It apologised to her for poor communication and lack of information/updates regarding the progress of her complaint. I consider this represents a satisfactory remedy for the injustice caused.

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Final decision

33. I do not uphold Mrs X’s complaint. However, I find the Council was at fault in that it delayed in responding to her complaint and failed to keep her updated about progress. The Council has provided a satisfactory remedy for the injustice caused by this.
34. I have completed my investigation on the basis that I am satisfied with the Council’s actions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman