Summary: Miss X complained the Council did not meet her late grandfather’s communication needs when its social workers visited him in hospital. Miss X also complained the Council did not explain her late grandfather’s communication needs to the hospital. Miss X says the Council’s actions caused avoidable distress to her grandfather and negatively impacted her own wellbeing. We found fault by the Council. The Council has agreed to provide an apology and a financial remedy and review its processes regarding the provision of communication support to deaf service users.

The complaint

1. Miss X complained the Council did not meet her late grandfather’s communication needs when its social workers visited him in hospital. She said the Council did not provide British Sign Language interpreters and/or deaf relay interpreters. Miss X also complained the Council did not explain her late grandfather’s communication needs to the hospital. She says the Council’s actions caused avoidable distress to her late grandfather and meant his ability to communicate during his hospital stay was severely limited. Miss X says the Council’s actions also had a significant emotional toll on her and negatively impacted her wellbeing. She would like the Council to apologise and acknowledge its actions. Miss X would also like the Council to review its processes and provide a financial remedy to recognise the distress caused.

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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 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)
3. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
• their personal representative (if they have one), or
• someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)
4. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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(1), as amended)

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How I considered this complaint

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

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What I found

Care Act 2014 and statutory guidance

8. The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. The assessment must involve the individual and where suitable their carer or any other person they might want involved.
9. Good, person-centred care planning is particularly important for people with the most complex needs. Many people receiving care and support may have mental impairments, such as dementia or learning disabilities. The principles of the Care Act apply equally to them, in addition to the principles and requirements of the Mental Capacity Act 2005 if the person lacks capacity.
10. The duty to involve the person remains throughout the process. If lack of capacity is established, it is still important that the person is involved as far as possible in making decisions.
11. A person must be able to communicate their views, wishes and feelings whether by talking, writing, signing or any other means, to aid the decision process and to make priorities clear. 
12. Councils must support the person to understand and weigh up information and to help people to exercise informed choice. A person must be given all practicable help to make the specific decision before being assessed as lacking capacity to make their own decisions.

Mental Capacity Act 2005

13. The Mental Capacity Act states that a person should not be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success. A person is not to be regarded as unable to understand the information relevant to a decision if they are able to understand an explanation of it given to them in a way that is appropriate to their circumstances.

The hospital social work team

14. The Council is one of a group of three local authorities who work together (as a tri-borough service) to support residents from any of their areas when they present at a hospital within their local borough.

What happened

15. This chronology includes key events in this case and does not cover everything that happened.
16. Miss X’s grandfather, Mr Y, had several health conditions and was profoundly deaf. Mr Y required hospital treatment and went into hospital on 14 June 2024.
17. On 26 June 2024, the hospital carried out a needs-based assessment. The assessment recorded that Mr Y communicated using British Sign Language (BSL).
18. The social work team working at the hospital allocated a social worker from the Council to Mr Y on 27 June 2024. The social worker’s role was to provide support in planning Mr Y’s discharge from hospital.
19. The social worker visited Mr Y in hospital on 10 July 2024 and again on 18 July 2024 to carry out a mental capacity assessment. As part of the mental capacity assessment, the social worker identified that Mr Y’s first language was BSL and that he required a BSL interpreter.
20. On 4 September 2024, the social worker visited Mr Y to carry out a care needs assessment. The social worker visited Mr Y again on 5 September 2024.
21. On 18 September 2024, Miss X emailed the social worker as she was unhappy with the communication support provided to Mr Y. Miss X told the Council that in addition to a BSL interpreter, Mr Y needed a deaf relay interpreter to be present during the Council’s interactions with him. The role of a deaf relay interpreter was to assist the BSL interpreter in communicating with Mr Y due to his specific communication needs.
22. A discharge planning meeting took place on 23 September 2024, attended by the social worker, several professionals and members of Mr Y’s family. The purpose of the meeting was to discuss a potential care home setting for Mr Y after his discharge from hospital.

Miss X’s complaint

23. Miss X complained to the Council on 26 September 2024. She said the Council had failed to provide Mr Y with the communication support he needed as part of the Council’s assessments and its interactions with him. Miss X said Mr Y needed BSL and deaf relay interpreters to be present to help him participate fully in any decisions regarding his care. Miss X said the Council’s provision of interpreters was sporadic. Miss X also complained the Council had not explained Mr Y’s communication needs to the hospital when he was admitted, and this had severely limited his ability to communicate during his hospital stay.
24. Miss X emailed the Council on 3 October 2024 and clarified that her complaint related to the actions of its social worker. Miss X stated she had also made a separate complaint to one of the other local authorities in the tri-borough service about its role regarding the care provided to Mr Y.
25. The Council’s social worker attended a discharge planning meeting on 4 October 2024.
26. On 15 October 2024, a best interests meeting took place regarding Mr Y’s discharge to a care home.

The Council’s complaint response

27. The Council replied to Miss X’s complaint on 16 October 2024. It said its social worker had carried out a mental capacity assessment on 10 July 2024 regarding discharge planning for Mr Y. The Council said Mr Y was supported by a BSL interpreter as part of the assessment and the visits were face to face to ensure Mr Y could also communicate via lip reading. The Council said it carried out a best interest meeting on 23 September 2024 and said the hospital arranged for a BSL interpreter to be present. It said Mr Y’s son also attended to provide additional support. The Council acknowledged Miss X’s requests regarding the provision of communication support for Mr Y and said it would ensure the care plan included a recommendation for an appropriate interpreter to be present at all future meetings and assessments. The Council said it would ensure its social workers within the hospital discharge team were equipped to ensure all residents had access to communication tools.
28. Mr Y left hospital in late October 2024 and moved into a residential care home.
29. Miss X replied to the Council on 30 October 2024. She said Mr Y could not effectively engage with a standard BSL interpreter alone as he also required a deaf relay interpreter or someone familiar with Mr Y’s signing style. Miss X asked the Council why it had conducted some appointments with only one interpreter and in some cases, with no interpreters at all.
30. The Council replied on 2 December 2024. It said the hospital had made every effort to involve a deaf relay interpreter, but this was not always possible due to availability. The Council apologised for it being unable to secure a deaf relay interpreter for the meeting on 15 October 2024 and acknowledged that had this been provided, it may have increased Mr Y’s engagement. The Council acknowledged the difficulties with attaining the right level of communication support for Mr Y but said it did not consider this had had a detrimental effect on his care or wellbeing.
31. Sadly, Mr Y died in December 2024.
32. Miss X brought the complaint to us as she remained dissatisfied with the Council’s complaint response.

Analysis – Miss X’s complaint that the Council did not provide a BSL and/or deaf relay interpreter when its social worker visited Mr Y in hospital

33. The needs-based assessment dated 26 June 2024 stated that Mr Y communicated via BSL. The Council was therefore aware from at least this date that Mr Y required a BSL interpreter.
34. Miss X says her family told the Council that Mr Y also required a deaf relay interpreter. The earliest evidence I have seen of Miss X informing the Council of the requirement for two interpreters is in an email dated 18 September 2024. The email states this requirement was previously mentioned, however, I have seen no record of when this previous discussion took place. The email stated it was crucial that the Council provide both interpreters for any future interactions or meetings with Mr Y.
35. The Council’s response to my enquiries says BSL/deaf relay interpreters were booked for the meetings held on 10 July, 18 July, 23 September and 15 October 2024. It has provided evidence to support this explanation; however not all of the interpreter bookings specify the requirement for a deaf relay interpreter in addition to a BSL interpreter. In addition, the Council’s correspondence to Miss X on 2 December 2024 acknowledged it did not provide a deaf relay interpreter for the meeting held on 15 October 2024.
36. In its response to my enquiries, the Council acknowledged it has no record of any arrangements to provide an interpreter for a visit made by its social worker to Mr Y on 5 September 2024. The Council says the social worker visited Mr Y on this date to discuss discharge destinations with him. However, it is noted that the care needs assessment document shows this as the date the social worker completed the care needs assessment. The Council says the assessment took place over a series of dates and was formally signed off on 24 September 2024.
37. The Council has apologised and stated it is unable to provide a satisfactory explanation as to why it has no confirmation of whether a BSL/deaf relay interpreter was present at the meeting on 5 September 2024.
38. I acknowledge the Council’s comments but consider on the balance of probabilities, it is more likely than not an interpreter was not present for the meeting on 5 September 2024. This is because the Council has provided details and evidence of interpreter bookings for other dates. It is therefore more likely than not that had the Council arranged an interpreter for the meeting on 5 September 2024, it would have retained a record of this, as is the case for the other meetings.
39. The failure by the Council to ensure an interpreter was provided as indicated above is fault causing an injustice to Mr Y, namely distress and frustration regarding the impact this had on his ability to communicate. The injustice is also the avoidable distress to Miss X, namely the uncertainty as to whether her grandfather was able to communicate his care needs effectively.

Miss X’s complaint that the Council did not explain Mr Y’s communication needs to the hospital

40. The Council says a community independent living advisor from another local authority within the tri-borough hospital social work team contacted the hospital by telephone on 19 June 2024 to enquire about Mr Y and his discharge plans. It says the hospital ward staff were aware of Mr Y’s communication needs and advised that Mr Y’s family were providing support with BSL interpreting.
41. The Council also says the hospital’s needs-based assessment received on 29 June 2024 further indicates the ward staff were fully aware of Mr Y’s communication needs.
42. However, the Council says it has no evidence on its records to indicate it initially liaised with the hospital about Mr Y’s communication needs. The Council has apologised and stated that a handover should have taken place on Mr Y’s admission to hospital.
43. I acknowledge the Council’s comments that it considers the hospital ward staff were aware of Mr Y’s communication needs due to the telephone call on 19 June 2024 and the needs-based assessment received on 29 June 2024. However, the Council acknowledges it holds no record to indicate initial liaison with the hospital took place regarding Mr Y’s communication needs when he was admitted on 14 June 2024. The Council acknowledges that a handover should have taken place at this time. I acknowledge the Council says an advisor from the other local authority should have done this, but the Council as part of the hospital social work team was also involved with Mr Y’s care.
44. The lack of records regarding this matter indicates it is more likely than not that the Council did not liaise with the hospital regarding Mr Y’s communication needs at that time. This is because had this liaison taken place, it is more likely than not the Council would hold a record of this action. This is fault causing an injustice to Mr Y, namely frustration with barriers to his communication as referenced in the needs-based assessment dated 26 June 2024. The injustice is also to Miss X, namely avoidable distress and uncertainty as to whether the Council took sufficient action to ensure Mr Y could communicate effectively at the time of his admission to hospital.
45. The Council says that although Miss X’s complaint refers to a member of its staff, and although Mr Y was admitted to a hospital located in its area, its staff member was fulfilling statutory duties on behalf of one of the other local authorities within the tri-borough service. The Council says its staff member was operating within the policies and procedures of the other local authority. The Council says it referred Miss X's complaint to the other local authority, who investigated Miss X’s concerns jointly with the hospital. The Council maintains that the investigation of Miss X’s complaints should have been assigned to the other local authority. The Council has however agreed to the recommended actions in the final section of this decision statement.
46. I acknowledge the Council’s comments. However, Miss X specified that her complaint was against the Council and was separate to another complaint raised regarding the actions of the other local authority. The Council provided a response to Miss X’s complaint as a separate response to that provided by the other local authority. Whilst I acknowledge the Council’s comments, I have found the Council to be at fault.
47. Where someone has died, we will not normally seek a remedy for injustice caused to that person in the same way as we might for someone who is still living. We would not expect a public or private body to make a payment to someone’s estate. Therefore, if the impact of a fault was on someone who has died, we will not recommend an organisation make a payment in recognition of, for example, the impact of poor care that person might have received while they were alive. This is because the person who received the poor care cannot benefit from such a payment. However, if we consider the person who has complained to us has been adversely affected by seeing the impact of that poor care on their relative, we may recommend a symbolic payment to them as a remedy for their own distress.

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Action

48. To address the injustice identified, the Council has agreed to take the following actions within one month of the final decision:
1. Provide an apology to Miss X regarding the fault identified. 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;
2. Make a symbolic payment of £350 to Miss X in recognition of the distress and uncertainty identified;
3. Review the relevant processes regarding the provision of British Sign Language and deaf relay interpreters to service users, to ensure effective communication support is arranged and provided where necessary, and
4. Remind staff of the need to carry out a handover when service users are admitted to hospital and to ensure service users’ communication needs are appropriately addressed.
49. The Council should provide us with evidence it has complied with the above actions.

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Decision

50. I have found fault causing injustice. The Council has agreed to take the above action to resolve the complaint and I have therefore concluded my investigation.

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Investigator's decision on behalf of the Ombudsman