Summary: Ms X complained about the Council’s handling of Mr Y’s care. She complained the Council did not provide suitable accommodation and did not provide suitable care and support. We find no fault with the accommodation provided by the Council. We do find fault with the Council’s handling of Mr Y’s care and support, which caused injustice. The Council agreed to apologise and complete an assessment to remedy the injustice.

The complaint

1. Ms X complains about the Council’s handling of Mr Y’s care. She complains the Council:

1. placed Mr Y in accommodation which did not meet his needs;
2. did not provide Mr Y with suitable care and support; and
3. handled her complaint poorly.

2. Ms X says this impacted Mr Y’s physical health and emotional wellbeing. She says it also caused her avoidable and unnecessary distress.

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The Ombudsman’s role and powers

3. 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)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. 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.
6. 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)
7. 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)
8. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
9. 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)
10. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the NHS. (Local Government Act 1974, sections 25 and 34(1), as amended)

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What I have and have not investigated

11. Ms X complains about matters which started almost ten years ago. As I have explained above, we cannot investigate late complaints unless there are good reasons. I consider it was reasonable for Ms X to make her complaint to the Council sooner. Ms X brought her complaint to us in March 2025. I consider there are good reasons to investigate from January 2024.
12. I have investigated parts a, b and c of the complaint from January 2024.

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How I considered this complaint

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

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What I found

What should have happened

Mental Capacity

15. 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.
16. 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.

17. 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.
18. 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?

19. 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.
20. 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.
21. 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.
22. 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.

Care and support (part b of the complaint)

23. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
24. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
25. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

Complaint handling (part c of the complaint)

26. The Council’s complaints policy said the complaint will be considered by an appropriate officer within the service the complaint relates to and it aims to provide a stage one response within four weeks. It says if the Council are unable to respond within this timescale, it will explain why and advise when it expects to provide a response. 
27. The policy says if the complaint progresses to stage two, either the complaints manager or a senior manager within the department (who has not previously been involved in the complaint) will consider the complaint. It aims to respond to stage two complaints within five weeks. It says if the Council are unable to respond within this timescale, it will explain why and advise when it expects to provide a response which will be within a maximum of 13 weeks.

What happened

28. Mr Y has high care and support needs. He lives in supported accommodation commissioned by the Council and has access to six hours of in-house support per day. He has a high risk of getting an infection due to self-neglect.
29. Prior to January 2024, the Council decided Mr Y did not have capacity to make decisions about his health. It completed a care and support plan which identified Mr Y would like to move accommodation and to be able to access the community. The Council made a referral to the relevant department to explore his accommodation options.
30. In January 2024, the Council held a Multi-Disciplinary Team (MDT) meeting. The attendees included Mr Y’s social worker, the manager of his supported accommodation, his GP, and multiple medical professionals from the NHS specialist learning disability team. The attendees agreed Mr Y’s physical and mental health was declining and he required medical input for his health to improve. The attendees considered Mr Y neglected himself as he does not accept help for his personal care and did not take medication for an infection. They agreed they needed a long-term plan to support Mr Y. They agreed actions to be completed including the Council to complete a capacity assessment to assess whether Mr Y had capacity to make decisions about his personal care and for his supported accommodation to arrange training to support its staff provide suitable care to Mr Y.
31. In March, the Council held the next MDT meeting. Ms X also attended the meeting. The accommodation manager informed the meeting its staff had now received training to be able to identify signs of infection. The attendees were informed Mr Y still refused support from staff and other healthcare professionals. The Council sought legal advice to regarding options to support Mr Y to access required healthcare. The legal advice told the Council Mr Y’s circumstances did not meet the Court of Protection’s threshold. The legal advice told the Council to continue to work with Mr Y with healthcare interventions in the community as this was the least restrictive measure to meet his needs.
32. In May, the Council held two MDT meeting. The attendees discussed the pattern of Mr Y continuing to disengage with health care and other support services and he continued to be at a high risk of infection because of self-neglect. The attendees decided the Council should approach Mr Y and ask him to agree how he wanted to be supported going forward.
33. In June, the Council completed a capacity assessment. It again assessed Mr Y did not have capacity to make decisions about his health.
34. In July, the Council held another MDT meeting. The attendees agreed all strategies within the MDT forum had been exhausted and were not successful. The attendees formulated a formal plan to support Mr Y’s health going forward. The plan said support staff would check Mr Y’s presentation daily and look out for signs of infection. It said if Mr Y consented, the staff would take daily readings of his temperature and blood pressure to check for signs of infection. It told staff if there are signs of infection, they must call the GP and the specialist medical professional immediately. It said if Mr Y does not allow staff to enter his room on three consecutive occasions, staff should contact the healthcare specific point of contact. It said if Mr Y went into hospital, staff should provide hospital staff with a copy of the plan which tells medical professionals to complete a full blood test and specialist treatment for the high-risk area of Mr Y’s body. It organised a three-monthly review of the high-risk infection area by a specialist medical professional. The specialist medical professional also agreed to treat the area Mr Y had neglected if he had an unplanned hospital admission. The plan said if Mr Y’s situation worsens, staff should make a referral for another MDT meeting.
35. In September, the Council and the supported accommodation met with Mr Y. He agreed to accept support from staff to clean his room, change his bedding and check his medication.
36. The Council received a safeguarding referral reporting Mr Y was at risk of harm because of his self-neglect and neglect from support services. The Council decided not to complete Section 42 enquiries. It said this was because it was already aware of the concerns raised in the referral and Mr Y was receiving support and had disengaged from other services.
37. In mid-September, Ms X made her formal complaint. The Council told her it had passed her concerns on the relevant department.
38. In mid-October, Ms X asked for an update about her complaint. The Council did not respond.
39. In late October, Ms X’s representative contacted the Council for an update about her complaint. The Council told Ms X it needed Mr Y’s consent to progress her complaint. Ms X provided Mr Y’s consent.
40. In early December, the Council responded to Ms X’s complaint. It partially upheld her complaint and said it would address her concerns with the accommodation provider, complete an MDT meeting and seek Mr Y’s consent to provide her with more regular updates.
41. The Council received another safeguarding referral reporting Mr Y was at risk of harm because of severe self-neglect. The Council decided not to complete Section 42 enquiries. It said this was because Mr Y had an allocated worker who was in communication with the support staff at his accommodation and had completed a rereferral for his case to be reviewed at an MDT meeting.
42. In January 2025, the Council issued a reviewed care and support plan. It said Mr Y was at risk of eviction and required a capacity assessment to determine whether he had capacity to make decisions about his accommodation.
43. In late January, the Council met with Ms X to discuss her complaint.
44. The Council issued its stage two complaint response. The stage two response was completed by the same officer who completed the stage one response. The Council told Ms X it would complete another capacity assessment for Mr Y to determine whether he has capacity to make decisions about his care and support.
45. In March, Mr Y’s mental health worsened. The Council told Ms X it would complete the capacity assessment for Mr Y regarding decisions about his care and support once his mental health stabilised.
46. In June, the Council sourced several alternative placements for Mr Y. Mr Y declined the options.
47. In July, the Council received another safeguarding referral about Mr Y being at risk because of self-neglect and not engaging with medical services. The Council decided not to complete Section 42 enquiries. It said this was because it was actively reviewing care provision and working to identify a placement which met Mr Y’s needs.
48. In late July, the Council told Ms X it had reviewed her complaint and was satisfied it had handled her complaint correctly.
49. In December, the Council documented it was satisfied Mr Y had capacity to make decisions about his accommodation.
50. To date, the Council has not completed a capacity assessment regarding Mr Y’s care and support.

Analysis

Accommodation (part a of the complaint)

51. The care and support plan identified Mr Y required a capacity assessment regarding his decisions about his accommodation. The Council had several conversations with Mr Y about his accommodation and did not complete a formal capacity assessment. It documented it was satisfied Mr Y had capacity to make decisions about his accommodation. The law does not say a formal capacity assessment must be completed for every decision. The decision Mr Y had capacity regarding his accommodation was made by a suitably trained professional working directly with Mr Y, which is in line with the law. I find no fault with the Council’s decision-making and so cannot criticise the outcome.
52. The Council told Ms X in its complaint response it would complete a housing needs assessment. It was unable to complete the assessment because of Mr Y’s engagement. It did not attempt a second time to complete the assessment because it decided Mr Y required supported accommodation through adult social care rather than its housing department. I find no fault with the Council.
53. The Council sourced several alternative placements for Mr Y which it assessed were suitable and met his needs. Mr Y decided he was not ready to move to a new placement. The Council put its search for an alternative placement on hold. I find no fault with the Council.

Care and support (part b of the complaint)

54. It took six months for the Council to complete the capacity assessment for Mr Y which had been directed by the first MDT meeting. The Council should have completed the capacity assessment sooner. The assessment found Mr Y did not have capacity regarding his health, which was the same outcome as his previous capacity assessment. For this reason, I consider the delay did not cause injustice to Mr Y. I consider the delay did cause Ms X unnecessary uncertainty, which is injustice.
55. Statutory guidance says councils should review care and support plans at least every 12 months. The Council should have reviewed Mr Y’s care and support plan by October 2024. It reviewed Mr Y’s care and support plan in January 2025. This is three months longer than the statutory guidance allows, which is fault. The Council had considerable oversight of Mr Y’s care and support during 2024, and so on balance I consider the three-month delay did not cause Mr Y injustice.
56. The Council decided not to progress the safeguarding referrals it received. I am satisfied the decisions were made by suitably qualified professionals and considered all available information in its decision making. I do not find fault with the Council’s decision making, and therefore I cannot criticise the outcome.
57. In its complaint response, the Council told Ms X it would complete a capacity assessment regarding Mr Y’s ability to make decisions about his own care and support. The Council decided not to complete the capacity assessment until Mr Y’s mental health had stabilised. It made this decision in March 2025, and it is still yet to complete the assessment. Someone’s capacity can fluctuate, especially with mental health conditions, and can change over a single day or over longer periods. Capacity is complex and capacity assessments may need to be repeated at regular intervals, which we expect the Council to do. Waiting for Mr Y’s mental health to stabilise is not a legitimate reason not to complete a capacity assessment. I consider not completing the capacity assessment is fault. I cannot say what the outcome of the capacity assessment would have been, nor any impact the decision would have had on the care and support Mr Y received. I consider the fault did cause Ms X avoidable uncertainty, which is injustice.

Complaint handling (part c of the complaint)

58. The Council’s complaint policy says it will provide a stage one complaint response within four weeks of receiving the complaint and tell the complainant its reasons if it cannot meet this deadline. The Council should have provided its response by mid-October and it did not do so until mid-December. This is a delay of two months. It also did not communicate there would be a delay to Ms X. The Council did not act in line with its policy. This is fault. This caused Ms X unnecessary distress and time and trouble chasing her complaint, which is injustice.
59. The Council issued its stage two complaint response within the timescale in its policy. However, Ms X’s stage two complaint was investigated by the same officer who investigated the stage one complaint. This is not in line with the policy and so is fault. This caused Ms X additional frustration and uncertainty, which is injustice.
60. The Council recently took service improvement action in relation to another case to address the delays and improve its communication when responding to adult social care complaints. I consider further service improvement action is not proportionate.
61. The purpose of our remedies is to take action to put complainants back in the position they would have been if the fault had not occurred. However, I consider there is no benefit to Ms X or Mr Y in recommending the Council completes a fresh second complaints response, as our investigation has superseded this.

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Action

62. Within four weeks of our final decision statement, the Council has agreed to:
1. provide a written apology to Ms X in recognition of the avoidable and unnecessary distress and uncertainty it caused her by its delay completing the capacity assessments for Mr Y and the additional time and trouble caused to her by its delay issuing its stage one complaints response and not following its policy to ensure an independent officer completed its stage two investigation.
2. complete Mr Y’s capacity assessment regarding decisions about his care and support without further delay.
63. 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. 
64. The Council should provide us with evidence it has complied with the above actions.

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Decision

65. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman