Summary: The Council failed to carry out a new mental capacity assessment when it changed its view on Mr Y’s capacity to decide on his care needs. This delayed Mr Y’s planned move to residential care causing Mr Y’s daughter, Miss X, distress and uncertainty. The Council has agreed to apologise and review its processes.

The complaint

1. Miss X complained the Council failed to provide her late father, Mr Y, with the suitable care he was entitled to following his discharge from hospital. She says the Council failed to properly assess her father’s mental capacity and care needs and incorrectly decided he could be cared for at home. Miss X says this impacted her father’s health as he missed out on suitable care, causing her distress. She wants the Council to review its procedures and compensate her for the impact of its failings.

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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. 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.
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(1), as amended)

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What I have and have not investigated

5. 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)
6. Miss X’s complaint is late because it concerns council actions that happened more than 12 months before she complained to us. Miss X has explained she delayed complaining to the Council and us due to the impact of Mr Y’s death on her. Considering this and delays in the Council’s complaint handling, I do not consider it was reasonable for Miss X to have complained to us sooner and have decided to investigate events from May 2023.

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How I considered this complaint

7. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
8. Miss X and the Council have 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

The law

9. Intermediate care and reablement support services are for people usually after they have left hospital or when they are at risk of having to go into hospital. They are time-limited and aim to help a person to preserve or regain the ability to live independently. This includes bed-based intermediate care.
10. 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.
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. How it assesses capacity may vary depending on the complexity of the decision.
13. 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?

14. 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.
15. 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.

Background

16. Miss X’s father Mr Y lived in a first floor flat. Mr Y was admitted to hospital in December 2022 following a fall. He was briefly discharged to an NHS rehabilitation hospital in February 2023 before being readmitted to hospital until April 2023 when he was again discharged to the rehabilitation hospital in May 2023.

What happened

17. Social worker A, from the Council, visited Mr Y following his return to the rehabilitation hospital in May 2023. They noted they considered Mr Y to have capacity, and he had said he wanted to return home. Miss X attended a meeting with professionals involved in Mr Y’s care planning the next day. Social worker A again said Mr Y wanted to go home. Miss X said she disagreed. She said she did not believe Mr Y had capacity to decide about his care.
18. During the meeting it became clear the hospital had yet to assess aspects of Mr Y’s care. Social worker A said these assessments were necessary to inform the Council what care Mr Y needed on discharge. Social worker A said the meeting would need to be rescheduled for after this had taken place. After the meeting social worker A met with Miss X. Miss X repeated she did not think Mr Y had capacity. Social worker A explained that capacity was decision specific. She said she would review Mr Y’s case when she had the information from the hospital. However, even if Mr Y did not have capacity, she said it was likely she would assess his care needs as able to be met at home.
19. The Council carried out an access visit of Mr Y’s home a few days later. They identified several issues that would need resolved before Mr Y could return home. This included a broken stairlift which Mr Y needed to access the flat, new equipment to help Mr Y mobilise safely, and an assessment of Mr Y’s bed.
20. Miss X spoke to social worker A on the phone a few days later. She repeated her view that it was not safe for Mr Y to return home. She said she did not want the Council to meet with Mr Y without her or her sister being present. She said Mr Y did not have capacity and she wanted the Council to carry out a mental capacity assessment. Social worker A explained they would only assess Mr Y’s capacity if there was reason to believe he lacked capacity, which she did not think there was. Social worker A said they would arrange for an independent advocate for Mr Y and ask for his consent for Miss X and her sister to be present at meeting with him.
21. Shortly after the Council reassigned the case to social worker B. Mr Y gave consent for Miss X and her sister to be present at meetings but continued to say he wanted to go home. Social worker B made the referral for an advocate for Mr Y. Mr Y was then admitted to hospital and the Council’s involvement with Mr Y ended for the duration of his stay in hospital.
22. In June 2023 Mr Y was discharged to a NHS run reablement home. An occupational therapist (OT) visited Mr Y. They noted Mr Y had capacity and wanted to go home. The OT began an assessment of Mr Y to enable his return home. Mr Y’s social worker changed again to social worker C. Social worker C met with Mr Y in July 2023. Social worker C carried out a mental capacity assessment of Mr Y’s capacity to understand the implications of returning home. They assessed that Mr Y did not have capacity to understand the risks of returning home. Social worker C consulted with Miss X and made a best interests decision for Mr Y that he move to a residential care environment. Social worker C told Miss X to start arranging residential care for Mr Y immediately.
23. At the same time social worker C asked the OT to carry out another access visit of Mr Y’s home to confirm it was unsafe for him to return home. The OT met with Mr Y again and noted they felt he had capacity, as did staff working with Mr Y. Miss X objected to the access visit as she did not agree Mr Y needed to return home. Miss X emailed a manager at the Council. The manager apologised for the confused communication but said the OT needed to assess Mr Y’s care and support needs.
24. The OT completed their assessment in early August 2023. They noted Mr Y could retain information but may struggle to understand risk. At the same time the reablement home contacted Miss X to say they understood Mr Y had been assessed as having capacity and they needed to plan for his discharge home. Miss X emailed social worker C saying she had been told by that Mr Y did not have capacity and should not be returning home. Social worker C said she had now decided Mr Y had capacity and could not be placed in a care home against his wishes. Miss X continued to voice her disagreement with the assessment.
25. Following a multi-disciplinary team meeting social worker C emailed Miss X. She said Mr Y’s stay at the home would be extended to allow future assessments and for the Council to consider all alternatives. She said the Council would track Mr Y’s communication and make a referral for an independent mental capacity advocate (IMCA).
26. The Council’s case notes show it decided Mr Y needed funded nursing care later in August 2023. In mid-September the IMCA assessed Mr Y as not having capacity to understand the risk of returning home. Miss X began pursuing care home options. Mr Y died a few days later.
27. Miss X complained to the Council in mid-2024. She said it had intentionally delayed the decision over Mr Y’s care to save money. She said the reablement home was unsuitable and contributed to a decline in Mr Y’s health.
28. The Council responded to Miss X’s complaint in September 2024. It said it was entitled to pursue a “home first” approach and the multi-disciplinary team had decided it needed longer to assess Mr Y. It said while social worker C had assessed Mr Y as not having capacity in July 2023, it needed to refer the matter to an IMCA due to disagreement from others. This resulted in a longer stay in the reablement home. The Council said it could not comment on the suitability of Mr Y’s care as it was an NHS facility. Miss X remained unhappy and complained to the Ombudsman.
29. In response to my enquiries the Council accepted it had taken a long time to assess Mr Y. It said this was due to carrying out robust assessments and making sure Mr Y was well enough to go home.

My findings

30. The Council was under a duty to consider Mr Y’s needs when planning his care and consider the least restrictive option for meeting those needs. While Mr Y had capacity it was under no duty to consult with Miss X over its care planning for Mr Y.
31. When Mr Y returned to the rehabilitation hospital in May 2023 the Council was entitled to presume he had capacity and not carry out a mental capacity assessment. Social worker A’s records show there was no evidence to suggest Mr Y lacked capacity. During this time Mr Y repeatedly asked to go home. The Council was entitled to explore the option of caring for Mr X in his home and what was needed to make that happen. The Council was not at fault.
32. Following Mr Y’s discharge to the reablement hospital social worker C assessed Mr Y as not having capacity to assess the risk of returning home. They made a best interests decision that Mr Y needed residential care. This decision was taken following a mental capacity assessment. It is not clear why the Council did not move forward with planning for Mr Y to move to residential care following this. Instead, social worker C asked the OT to continue to assess Mr Y’s home. While the Council was entitled to explore the least restrictive option for Mr Y’s care, this confused approach was fault and caused Miss X uncertainty over what care option the Council was pursuing.
33. Following the mental capacity assessment Mr Y’s OT and other staff working with Mr Y said they considered Mr Y to “have capacity”. There is no evidence these views followed formal mental capacity assessments and were decision and time specific. Similarly, when social worker C decided Mr Y did have capacity, following their assessment that he did not, there is no evidence this followed another mental capacity assessment. This was fault. While it is possible Mr Y’s capacity fluctuated, any determinations about Mr Y’s capacity to decide his care needs should have followed a mental capacity assessment and been decision and time specific. The Council’s repeated assertions that Mr Y “had capacity” without an assessment to contradict the previous assessment that he did not, were fault. This caused Miss X distress and extra uncertainty over Mr Y’s care planning.
34. Despite deciding Mr Y did not have capacity, and it was in his best interests to be moved to residential care, it took the Council another two months to finally pursue this option. During this time, it carried out further assessments, and involved an IMCA, only to arrive back at the conclusion it reached in July 2023. On balance, given no evidence of further mental capacity assessments to contradict the July 2023 best interests decision, I consider this delay in planning Mr Y’s move to residential care was fault.
35. Miss X says she believes this delay meant Mr Y remained in an unsuitable care setting for longer than expected and contributed to a decline in his health. Both the rehabilitation and reablement hospitals were NHS facilities. We cannot investigate the suitability of Mr Y’s care in these hospitals as it was not commissioned or delivered by the Council. While Mr Y’s residential care planning was delayed, I cannot say this resulted in unsuitable care. However, it did cause Miss X further uncertainty and distress as she continued to question why the Council was not pursuing a move to residential care when it had said it would.

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Action

36. Within one month of the final decision the Council has agreed to apologise to Miss X for the uncertainty and distress caused by the failings identified in this decision. 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 the apology.
37. Within three months of the final decision the Council has agreed to reviews its processes and train staff to ensure if there is a change in its assessment of someone’s capacity, this is based on a mental capacity assessment. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. I find fault causing injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman