Summary: Mr X complained about the way the Council dealt with Mr Y’s emergency care needs. The Council was at fault for failing to complete a mental capacity assessment and poor communication. This caused Mr Y to be without care for part of a day and Mr X distress and uncertainty. The Council will apologise, make a symbolic payment and remind staff of the need to carry out mental capacity assessments.

The complaint

1. Mr X complains about the way the Council dealt with his father, Mr Y’s care needs. He says the Council failed to:
1. consider Mr Y’s mental capacity to make decisions about his care and support needs;
2. properly understand Mr Y’s care and support needs,
3. tell Mr X about its decision to end Mr Y’s temporary care and support package; and
4. complete a proper investigation into his concerns.
2. Mr X says this caused him and his family distress and that he had to urgently arrange and pay for private care to ensure Mr Y’s needs were met.

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The Ombudsman’s role and powers

3. 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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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)
5. 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)

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How I considered this complaint

6. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
7. Mr X and the Council had the opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Legislation and guidance

Assessment

8. 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. Under the Care and Support Statutory Guidance councils should provide people with copies of their assessment and care and support plans.

Mental Capacity Act

9. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision and how to do this.
10. The Mental Capacity Act and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt. (Code of Practice paragraph 4.34)

Mental capacity assessment (MCA)

11. 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.
12. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt.

Lasting Power of Attorney

13. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. 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.

Capital limits

14. The capital limits, specified in regulations issued under the Care Act 2014, set the levels of capital (excluding any capital that has been disregarded) that a person can have while qualifying for financial support from their local authority. For people receiving care other than as a permanent resident in a care home, local authorities have discretion to set higher capital limits if they wish.

The Council’s charging policy

15. A person who has savings and/or investments worth more than £23,250 will have to pay the full cost of their care. This is known as being a self-funder.
    As a self-funder, a person can arrange and pay for their own care.

Intermediate Care and Reablement

16. Intermediate care and reablement support services are time-limited and aim to help a person to preserve or regain the ability to live independently. The National Audit of Intermediate Care lists four types of intermediate care:

• crisis response – services providing short-term care (up to 48 hours);
• home-based intermediate care – services provided to people in their own homes by a team with different specialties but mainly health professionals such as nurses and therapists;
• bed-based intermediate care – services delivered away from home, for example in a community hospital; and
• reablement – services to help people live independently which are provided in the person’s own home by a team of mainly care and support professionals.

17. Regulations require intermediate care and reablement to be provided without charge for up to six weeks. This is for all adults, whether or not they have eligible needs for ongoing care and support. Councils may charge where services are provided beyond the first six weeks but should consider continuing providing them without charge because of the preventive benefits. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)

Best interest decision making

18. 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.
19. 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.

What happened?

20. In late October 2024, Mr Y’s wife, was taken into hospital. Both paramedics and Mr Y’s family thought he needed support while she was in hospital. Paramedics noted in a referral to the Council that Mr Y had advanced memory issues, although no diagnosis of dementia, and needed 24-hour care of his wife.
21. The next morning, the Council arranged emergency care at home, four times per day for Mr Y, which it said would continue for around one week. The Council said it provided this free of charge.
22. The same day, Mr Y’s family member called the Council saying Mr Y would need someone with him all the time, but he would deny this if asked.
23. The following morning, a Council officer visited Mr Y and decided he could manage his own care, and so Council support was not required.
24. A different Council officer visited again later that morning. They noted Mr Y was already up and ready for the day and that he said he could care for himself. The Council then ended the emergency care package.
25. Following Mr Y declining support, a different Council officer visited him again later in the afternoon. During this visit, they noted Mr Y was confused and could not show how he would care for himself throughout the day.
26. The same Council officer called Mr X, who was unhappy the Council had ended the support package and had failed to tell him about this. Mr X told them he had LPA and that Mr Y was financially over the capital limit. Because of this, the officer suggested Mr X sourced the care himself. The Council noted Mr X agreed to this and provided him with details of care providers. It recorded Mr X said he would check in on Mr Y until a care agency was in place.
27. The following day, a Council officer completed a welfare check with Mr Y. They noted Mr Y still needed support, but Mr X would source private care directly.
28. Shortly after this, Mr X complained to the Council that he had to arrange emergency care for Mr Y through his neighbours and then pay for a private care agency to support him. He also complained the Council:

• wrongly decided Mr Y didn’t need support and had the capacity to make this decision; and
• left him with no support all day and failed to tell family members until late afternoon.

29. The Council upheld Mr X’s complaint, and acknowledged it failed to take correct information at time of referral, which led to it passing poor information to the team that visited Mr Y. It also said it failed to communicate with Mr X, who had LPA, which led to Mr Y being without support for a short period of time.
30. The Council apologised and said it had addressed the issues with the workers concerned.
31. Mr X was unhappy with this response and said the conclusions were based on inaccuracies.

Analysis

Mr Y’s mental capacity and care and support needs

32. The Council said the first two officers that spoke to Mr Y had no concerns about his mental capacity to decide about his care and support. However, it acknowledged that this may have been because of varying capacity, depending on the time of day. The Council has already accepted fault for failing to explore if there were concerns around Mr Y’s capacity at the point of referral.
33. In addition, the Council is also at fault for failing to carry out an MCA. The information from the paramedics and Mr Y’s family about his memory and care needs was enough for the Council to doubt his capacity. The Code says a Council should complete an MCA where their capacity is in doubt.
34. These faults created a missed opportunity for the Council to consider Mr Y’s capacity, complete an MCA and the best interests process, if necessary.
35. I cannot say what the outcome of an MCA would have been. But I am satisfied that the Council’s failure to complete an MCA likely caused Mr X distress, as he remained uncertain about the Council’s approach to his father’s care. This also caused Mr X avoidable distress when he realised that this had happened and inconvenience in having to organise emergency care for Mr Y. The Council accepted this resulted in Mr Y being without care for most of a day.

Communication with Mr X

36. The Council has accepted that its poor communication led to it failing to communicate with Mr X, who had LPA. This was fault which caused Mr X distress.
37. These faults meant that Mr X had to arrange private care at home, but I have no grounds for recommending a refund because we cannot say, on the balance of probabilities what the outcome of any MCA or best interests process would have been.
38. Mr X has also confirmed that Mr Y has savings over the capital threshold and so he would have to pay for his care.

Council’s complaint investigation

39. Mr X feels that due to discrepancies in the information the Council provided during its investigation, it did not properly investigate his concerns.
40. I have not investigated this point further. This is because, as the Council has already accepted fault for the substantive matters of this complaint, further investigation would not lead to a different outcome.

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Action

41. Within four weeks of our final decision, the Council will:
• apologise to Mr X and Mr Y for the faults identified. 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;
• make a payment of £200 to Mr X to recognise the distress and uncertainty caused to him by the Council failing to complete a capacity assessment and its poor communication; and
• remind officers of the need to carry out capacity assessments where a person declines care but appears to show signs of confusion.
42. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman