Summary: Mrs X complained the Council delayed completing Mental Capacity Assessments to decide if a Deprivation of Liberty Safeguard was required for her son, Mr Y. Mrs X said Mr Y may have been illegally deprived of his liberty since he turned 18. Mrs X said this caused her significant distress. There was fault in the way the Council did not complete the correct assessments within a reasonable timescale. This fault meant Mr Y has been deprived of his liberty without the legal authority to do so. This frustrated and distressed Mrs X. The Council has agreed to apologise, make a financial payment, provide training to its staff and take action to address its backlog of other outstanding Mental Capacity Assessment and Deprivation of Liberty Safeguards

The complaint

1. Mrs X complained the Council delayed completing Mental Capacity Assessments (MCA’s) to decide if a Deprivation of Liberty Safeguard (DOLS) was required for her son, Mr Y. Mrs X said Mr Y may have been illegally deprived of his liberty since he turned 18. Mrs X said this caused her significant distress.

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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. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with a Council’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)
4. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
5. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
7. 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)
8. I have exercised discretion to consider events in this case back to October 2023. I reference events prior to this for context in this matter. Mrs X continued to pursue this matter, and the Council did not resolve this matter.

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How I considered this complaint

9. I read Mrs X’s complaint and spoke to her about it on the phone.
10. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
11. 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

Background information

12. 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. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
13. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
14. 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.

15. 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.
16. An assessment of someone’s capacity is specific to the decision to be made at a particular time. 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?

17. 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.
18. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.
19. 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.
20. 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.
21. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
22. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection:

• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
• appoints deputies to make decisions for people lacking capacity to make those decisions;
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid; and
• removes deputies or attorneys who fail to carry out their duties.

23. 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.
24. 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.

25. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.
26. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.
27. The Supreme Court defined deprivation of liberty as when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
28. Once there is or is likely to be a deprivation of liberty, it must be authorised under the DoLS scheme in the Mental Capacity Act 2005.
29. When an individual lives in their own home, the Council should apply for a Community Deprivation of Liberty Safeguards (COMDOLS). The restrictions may be the best viable option that is the least restrictive practice in action, being both necessary and proportionate, therefore must be assessed and authorised through a COMDOLS authorisation in order to safeguard the individual and ensure family members and care staff are protected under law.

What happened

30. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
31. The Council supported Mr Y with a social care package when he was a child. The Council referred Mr Y to its adult social care department in March 2023.
32. The Council completed an MCA for information sharing in September 2023. The assessment concluded Mr Y did not have capacity to consent to share information.
33. Mr Y turned 18 in October 2023. The Council completed the Care Act assessment three weeks later. The assessment detailed Mr Y had 2 carers in the community and was under constant supervision. The assessment also confirmed Mr Y is not free to leave as doors and windows are locked to keep him safe at home. The Council recorded Mr Y’s care plan would constitute a deprivation of his liberty as he was under constant supervision and not free to leave. The Council confirmed it needed to complete an MCA.
34. The Council confirmed it needed to complete an MCA for care and support in November 2023. The Council arranged to complete the assessment at the end of the month. The Council cancelled this assessment and rearranged it for December 2023.
35. In December 2023, the Council said it started the assessment for care and support, and would complete it in the new year.
36. Mrs X chased the Council in January 2024. She asked the Council to complete the MCA for care and support. The Council noted a visit but had not recorded any detail of the visit.
37. The Council completed the review of the Care Act assessment in March 2024. The assessment noted Mr Y was not left alone and the doors and windows were locked at home.
38. The Council recorded the MCA for care and support was in progress in April 2024.
39. The Council recorded the MCA for care and support was in progress in June 2024.
40. The Council completed a review of the Care Act assessment in June 2024. The Council noted Mr Y was supervised at all times, doors and windows were locked and he had two carers supporting him in the community. The Council recorded Mr Y’s care plan would constitute a deprivation of his liberty.
41. The Council updated Mr Y’s support plan in July 2024. The Council slightly amended the plan to reflect a change in the 2-1 support provider and the days Mr Y attended provision.
42. Mrs X continued to chase the Council. In October 2024 the Council admitted Mr Y’s circumstances did warrant an application for a COMDOLS. Mrs X complained the Council had not applied for a COMDOLS.
43. The Council responded to the complaint at the end of October 2024. The response said there was no evidence Mr Y needed a COMDOLS in January 2024. The Council accepted a significant delay in completing a mental capacity assessment but the Council decision to prioritise other work was proportionate as Mr Y had care in place. The Council partially upheld the complaint because of the delays and said it would complete the outstanding work.
44. Mrs X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mrs X would like the Council to apologise and complete a care and support mental capacity assessment.
45. In response to my enquiries the Council stated it did not agree Mr Y had been deprived of his liberty illegally. It then accepted it deemed Mr Y “was likely deprived of his liberty due to the close levels of supervision at home, and the fact the home environment was secure”. The Council said the measures were proportionate and least restrictive. It also noted Mr Y did not object and there was no detrimental impact on him.
46. The Council also raised concerns Mrs X had LPA for Mr Y, meaning he had capacity to agree to this. The Council confirmed Mr Y appointed Mrs X in September 2024, so this added another level of complexity to the case.
47. The Council completed the care and support mental capacity assessment in April 2025. The assessment determined Mr Y did not have capacity regarding his care and support needs.
48. We were concerned others may also be affected by the delays seen in this case. We asked the Council for details of such cases. It confirmed that in June 2025 it had 382 outstanding Mental Capacity Act assessments and 404 outstanding DOLS applications.

My findings

49. Under article five of the Human Rights Act every person has the right to liberty and security. However, in certain circumstances it may be necessary to deprive someone of their liberty. Examples of what restrictions be a deprivation of liberty may include locked doors and being under constant supervision. The restrictions may be the best viable option and the least restrictive, being necessary and proportionate. However, it must be assessed and authorised to safeguard the individual and ensure family members and care staff are protected under law.
50. The Council assessed Mr Y’s needs in October 2023, just after his 18th birthday. This assessment noted the care and support plan constituted a deprivation of liberty. The Council confirmed it would complete a mental capacity assessment. It did not complete the capacity assessment for care and support until April 2025, an 18-month delay. This delay is fault. This frustrated and distressed Mrs X. Mr Y was deprived of his liberty during this time. However, this did not alter the support he received. Mrs X and the Council confirmed this was in his best interests and the least restrictive option.
51. The Council could not provide evidence of a visit it said it completed in January 2024. Recording is an integral and important part of social care. It is not simply an administrative burden to go through as quickly as possible, but is central to good, person-centred support. Recording is vital. The Council has not recorded details of a visit. The visit was important to confirm what assessment it completed. The Council accepted its record keeping was poor. This is fault.
52. The Council reported the measures in place during the delay, depriving Mr Y of his liberty, were proportionate and least restrictive. However, the Council should still complete the assessment within a reasonable time. It should then follow the correct legal procedure to ensure all actions to restrict Mr Y were done legally. It has not done this. This is fault. This frustrated and distressed Mrs X. Mr Y has been deprived of the legal safeguards and rights associated with COMDOLS. Mrs X applies the restrictions daily and has done so without the reassurance COMDOLS would provide.
53. It is a concern some people may be unnecessarily deprived of their liberty or could be subject to less restrictive arrangements if the necessary safeguards and assessments were completed. Others may be left vulnerable if they do not have the capacity to make significant decisions about their lives and circumstances because the Council has not completed an MCA. If a person lacks the capacity to make a particular decision, measures need to be put into place to ensure any decision is made in their best interests. Delays leave those individuals vulnerable to poor or inappropriate decisions being made by them or on their behalf. The potential injustice in such circumstances could be significant.

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Agreed action

54. To remedy the outstanding injustice caused to Mr Y and Mrs X by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mr Y and Mrs X for the distress and frustration of not completing the actions it should have to legally deprive Mr Y of his liberty. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Complete the COMDOLS work for Mr Y. If the Council concludes less restrictive options are needed, it should consider making a payment to Mr Y. This should be in line with our guidance on remedies. This would be to recognise the injustice caused because he has been subject to more restrictive measures for longer than necessary for a prolonged period.
• Pay Mrs X £500 to recognise the distress, frustration and uncertainty caused by the 18-month delay completing the mental capacity assessment and applying for a legal COMDOLS.
• Remind relevant staff on the importance of effective case recording.
55. Within three months of my decision, the Council has agreed to:
• Create an action plan to reduce the high numbers waiting for a Mental Capacity assessment and DOLS applications.
• Refer this decision and action plan to the Cabinet Member for Adult Social Care and the scrutiny committee. The Council should provide an update to the committee after six months on the progress of the action plans.
56. The Council should provide us with evidence it has complied with the above actions.

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Decision

57. I have completed my investigation. I have found fault by the Council, which caused injustice to Mr Y and Mrs X.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman