Summary: Mrs X complained her sister, Mrs Y, is in an unsuitable care home for her needs. She said the Council would not discuss Mrs Y’s care and support needs with her despite there being no authorised person to represent Mrs Y’s health and welfare decision making. We found there was avoidable delay sharing information with Mrs X because the Council did not confirm deputyship for Mrs Y’s health and welfare when it carried out a review. This caused Mrs X some frustration. However, we did not find fault in the Council’s decision-making or that the care home was unsuitable.

The complaint

1. Mrs X complained her sister, Mrs Y, is in an unsuitable care home for her needs.
2. Mrs X said Mrs Y was misdiagnosed after a psychotic episode and should not be in a dementia care home.
3. Mrs X wanted Mrs Y to move to a care home closer to her, so she can visit. She said the Council would not discuss Mrs Y’s care and support needs with her despite there being no authorised person to represent Mrs Y’s health and welfare decision making.

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The Ombudsman’s role and powers

4. 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)
5. 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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How I considered this complaint

6. As part of the investigation, I considered the complaint and the information Mrs X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. 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

Mental capacity

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.
11. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
12. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
13. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

14. If there is a need for continuing decision-making powers and there is no relevant EPA or LPA, the Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian (OPG) oversees the work of attorneys and court-appointed deputies and produces detailed guidance for them.

What happened

15. I have summarised below some key events leading to Mrs X’s complaint. This is not intended to be a detailed account of what took place.
16. Mrs Y moved into a care home when after spending time in hospital.
17. Mrs X asked the Council to re-assess Mrs Y as she did not consider the care home was suitable for her needs.
18. The Council spoke with Mrs X in August 2024 and advised it was allocating someone to visit Mrs Y. It said it would contact Mrs Y’s next of kin when it made an appointment. Mrs X said she had been calling the Council for months and it told her it would do an assessment. The Council said Mrs Y received 24-hour care in a home, so an assessment was not urgent as Mrs Y is safe. Mrs X said Mrs Y deteriorated as she was in a home for dementia patients when she does not have dementia. Mrs X asked if she was listed as next of kin. The Council said she was not, and Mrs X should discuss matters with Mrs Y’s family, as it cannot divulge information without Mrs Y’s consent.
19. Mrs X complained to the Council in October 2024 about Mrs Y still being at the care home after she was misdiagnosed as suffering with dementia. Mrs X said Mrs Y became physically incontinent and wheelchair bound due to lack of exercise. She said Mrs Y needed to be moved to another care home, closer to family.
20. The Council reviewed Mrs Y’s care and support in November 2024.
21. The Council responded to Mrs X’s complaint in February 2025. It said it shared Mrs X’s concerns with its adult social care service but did not have consent to share Mrs Y’s information with her.
22. A social worker visited Mrs Y in March 2025 seeking her views on her current care and whether she would like to move. The Council also reviewed Mrs Y’s care and support.
23. The Council conducted a mental capacity assessment in April 2025 to determine whether Mrs Y could decide where she lived.
24. The Council spoke to Mrs X in May 2025 to ask her permission for it to speak to Mrs X. Mrs Y agreed. The Council confirmed to Mrs X that Mrs Y wished to stay in the care home.

My investigation

25. Mrs X told us Mrs Y transferred to the care home from hospital after suffering a psychotic breakdown following a urinary tract infection (UTI). However, Mrs Y received no treatment and Mrs X said no one will tell her what medication Mrs Y takes or if her condition is being regularly re-assessed.
26. Mrs X said she was told by Mrs Y’s husband that a social worker diagnosed Mrs Y as suffering from dementia. Mrs X believes Mrs Y was misdiagnosed, due to her progressive recovery.
27. Mrs X said the care home is a dementia home and unsuitable for Mrs Y’s recovery, as she has no interaction or stimulation from other residents.
28. Mrs X told me the Council is talking to her now. It told her it assessed Mrs Y, and she did not want to move. Mrs X considers Mrs Y has been institutionalised and worries about moving.
29. Mrs X said the care home is under new management and has improved. However, she felt Mrs Y needs more stimulating company and would like her to move if this would be in Mrs Y’s best interests.
30. The Council told me it did not diagnose Mrs Y with dementia. It assessed her as having capacity to make decisions about her care and support needs and she decided to remain in the care home. The Council has no concerns the home cannot meet Mrs Y’s needs, and it carried out reviews in 2023, 2024, and 2025.

Analysis

31. Until recently, the Council did not have Mrs Y’s consent to share information with Mrs X. The Council was therefore not at fault when it initially refused to share details of Mrs Y’s assessments and support.
32. I found the Council mistakenly believed Mrs Y had a deputy who was legally responsible for her when it held a review in November 2024. In fact, she only had a deputy for her property and affairs. Unfortunately, it appears the Council did not check its records at the time. That was fault. The Council did not discover this until after Mrs X brought her complaint to the Ombudsman. It then visited Mrs Y to assess her capacity and gained her consent to speak to Mrs X about her wishes. If the Council had established the correct position regarding deputyship when it carried out the review in November 2024, it could have avoided the need for Mrs X to complain to the Ombudsman and it could have gained Mrs Y’s permission to make Mrs X aware of the situation sooner.
33. However, I have not seen evidence the Council’s fault affected its decision-making on Mrs Y’s care and support arrangements.
34. I found Mrs Y could express her wishes about where she wanted to live, and the Council carried out a mental capacity assessment which confirmed this.
35. I found the Council carried out regular reviews of Mrs Y’s care and support needs, including her placement at the care home. I did not see any evidence the care home could not meet Mrs Y’s needs or that it was unsuitable for her.
36. I have not included specific information about the Council’s assessments, as this is confidential and I do not have Mrs Y’s consent. I only included information the Council shared with Mrs X.

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Agreed Action

37. Within four weeks of my final decision, the Council will apologise to Mrs X for failing to establish the correct position on Mrs Y’s deputyship sooner, leading to a delay gaining Mrs Y’s consent to speak to Mrs X.
38. The Council should provide us with evidence it has complied with the above actions.

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Final Decision

39. I found there was avoidable delay sharing information with Mrs X because the Council did not confirm deputyship at the relevant time. However, I did not find fault in the Council’s decision-making or that the care home was unsuitable.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman