Summary: We will not investigate this complaint about how to meet adult social care needs. There is not enough evidence of fault in the process the Council followed to decide Ms C’s capacity to decide about her care and to assess how best to meet her needs. The Ombudsman could not achieve the outcome the complainant wants, which is to say Ms C needs 24-hour care. The Court of Protection would be best placed to decide a dispute about capacity and an appropriate care plan.

The complaint

1. Ms B says the Council is not adequately meeting the adult social care needs of her relative Ms C. Ms B believes Ms C needs 24-hour care. Ms B is distressed and struggling to sleep as she is worrying about the safety of Ms C who lives alone at home.

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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:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint.

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

3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.
6. I considered the Care Act 2014 and associated statutory guidance, and the Mental Capacity Act 2005 and associated statutory guidance.

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My assessment

7. The Council is responsible to meet Ms C’s adult social care needs. It must complete an assessment of her needs under the Care Act 2014 and create a care and support plan that shows how it will meet her eligible needs.
8. The Council completed an assessment of Ms C’s care and support needs and included Ms C and relevant professionals. The Council’s view on meeting Ms C and discussing her care was that she had capacity to decide about her care. Ms C wanted to return home from the temporary care placement she was staying.
9. Under the Mental Capacity Act 2005 we must assume people have capacity to make their own decisions unless there is good reason to think otherwise. Under that Act people are also entitled to make decisions that others think are unwise.
10. Because Ms C had capacity there was no requirement for the Council to include Ms B in the care planning.
11. Ms C returned home with assistive technology and a short-term care package.
12. There is not enough evidence of fault in the process the Council followed to decide Ms C’s care plan. So, the Ombudsman cannot question or criticise it even though Ms B disagrees.
13. If Ms C’s circumstances have changed and she no longer feels safe at home, she can ask the Council to reassess her needs and how best to meet them.
14. If Ms C has since lost capacity to decide her care support Ms B can ask the Council to complete a reassessment and a best interest decision of how best to meet Ms C’s eligible care needs. If Ms B and the Council remain in dispute, then Ms B can ask the Court of Protection to decide on Ms C’s capacity to decide about her care. If Ms C lacks capacity the court can decide how the Council should best meet her needs.
15. The Ombudsman cannot achieve the outcome Ms B wants, which is to say Ms C needs 24-hour care and her needs must be met in a care home. Only the Council or the Court of Protection can assess and decide that.

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Final decision

16. We will not investigate Ms B’s complaint because it is unlikely an Ombudsman investigation would find evidence of fault, and even if we did, we cannot achieve the outcome Ms B wants.

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Investigator's decision on behalf of the Ombudsman