Summary: We will not investigate Miss X’s complaint about the Council’s decision not to provide care and support to her mother in a nursing home and about the Council’s decision her mother had mental capacity to make decisions about her care and support. This is because the likely fault has not caused any injustice. In addition, there is insufficient evidence of fault.

The complaint

1. Miss X complains about the Council’s decision not to provide care and support to her mother in a nursing home. She says the Council incorrectly determined her mother had mental capacity to make decisions about her care and support.

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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 an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained.

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

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Miss X’s mother, Miss Z, had eligible care and support and received a care and support package at home.
6. At the beginning of July 2024, Miss X raised concerns to the Council about Miss Z’s deteriorating health needs and expressed her view that her mother needed support in a nursing home.
7. At the end of July 2024, the Council visited Miss Z at home to discuss whether she would consider respite. The Council’s case record noted the social worker told Miss Z that Miss X was struggling and that she needed a break. Miss Z was asked to consider respite, and she agreed. The Council determined Miss Z had capacity to make this decision.
8. The day after the meeting, Miss Z stated she did not want to go into respite care. The case record noted Miss Z could not recall the discussions held the day before.
9. The Council completed another mental capacity assessment two weeks later. This assessment determined Miss Z lacked capacity to make the decision to decline respite care.
10. The Council arranged respite care for Miss Z in a nursing home for mid-August until beginning of September 2024.
11. Although the Council completed a mental capacity assessment in July 2024, having reviewed the assessment, I am not satisfied this was completed appropriately. This is because the assessment did not detail any consideration of whether Miss Z understood the risks if Miss X were to take a break from her caring role or whether Miss Z showed any understanding of how her care needs would be met without Miss X. There was also no exploration of whether Miss Z understood what her care and support needs were. Instead, the assessment appears to just accept Miss Z had capacity because she had agreed to go into respite. If we were to investigate, it is likely we would find fault with this.
12. However, the Council completed another mental capacity assessment two weeks later. Having reviewed this assessment, I am satisfied it was completed properly. This was because the assessor explored Miss Z’s ability to retain and weigh up information, as well as exploring Miss Z’s insight into her care and support needs. The assessor provided a detailed rationale as to why they considered Miss Z lacked capacity to make the decision, including that Miss Z lacked any insight to the extent of her care needs.
13. An investigation is not justified because the likely fault with the way the July 2024 mental capacity assessment was completed did not cause any injustice. This is because during the two-week period in between the two mental capacity assessments, Miss Z continued to receive appropriate care at home and then in a nursing home.
14. Finally, the records showed the Council advised Miss X her mother can return home at the end of the respite period, but that an assessment would be completed to determine how her long-term care and support needs should be met. This was the appropriate process for the Council to follow, especially as Miss X’s health had declined. Therefore, a new care assessment/reassessment was necessary to identify what Miss X’s eligible care needs were and how best to meet them. Therefore, an investigation is not justified as we are unlikely to find fault.

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Final decision

15. We will not investigate Miss X’s complaint because the likely fault has not caused any injustice to Miss Z. In addition, there is insufficient evidence of fault.

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Investigator's decision on behalf of the Ombudsman