Summary: Mr X complains about the Council’s handling of Mr Y’s discharge from hospital. Mr X complains the Council did not properly complete Mr Y’s capacity assessment and arranged an unsuitable discharge care plan. Mr X says this put Mr Y at risk and impacted his physical health. We find no fault with the Council’s handling of the capacity assessment. However, we do find fault with the Council’s decision-making in the discharge care planning process. The Council has agreed to apologise to Mr X and take service improvement action.

The complaint

1. Mr X complains about the Council’s handling of Mr Y’s discharge from hospital. Specifically, he complaints the Council:

1. did not involve him in Mr Y’s capacity assessment;
2. arranged an unsuitable discharge plan for Mr Y; and
3. communicated with him poorly.

2. Mr X says this put Mr Y at risk and impacted his physical health and emotional wellbeing. Mr X says this also caused him avoidable and unnecessary stress and impacted his emotional wellbeing.

Back to top

The Ombudsman’s role and powers

3. 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)
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)
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)

Back to top

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 an opportunity to comment on my draft decision. I considered all comments received before making this final decision.

Back to top

What I found

What should have happened

Capacity assessment (part a of the complaint)

8. 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.
9. 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.

10. 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.
11. 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?

12. 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.

Discharge care plan (part b of the complaint)

13. 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.
14. The plan should be proportionate to the needs to be met, and should reflect the person’s wishes, preferences and aspirations. However, local authorities should be aware that a ‘proportionate’ plan does not equate to a light-touch approach, as in many cases a proportionate plan will require a more detailed and thorough examination of needs, how these will be met and how this connects with the outcomes that the adult wishes to achieve in day-to-day life.
15. In addition to taking all reasonable steps to agree how needs are to be met, the local authority must also involve the person the plan is intended for, the carer (if there is one), and/or any other person the adult requests to be involved. Where the person lacks capacity to ask the authority to do that, the local authority must involve any person who appears to the authority to be interested in the welfare of the person and should involve any person who would be able to contribute useful information.

What happened

16. Mr Y had several health conditions. Mr X held Power of Attorney for Mr Y.
17. Mr Y had a care plan which detailed four visits per day by one care worker to support his needs. The total amount of care per week was 11 hours. Mr Y had a fall at home which caused him serious injuries. He was admitted to hospital.
18. In spring 2025, Mr Y was medically ready to be discharged from hospital. A social worker from the Council’s hospital discharge team assessed Mr Y and decided he had capacity to make his own decision about where to live upon discharge. Mr Y told the social worker he did not want to live in a care home. The social worker proposed a package of care for Mr Y at his home, which included four 30-minute visits per day by two care workers to support his needs. This was a total of 14 hours of care per week. Mr Y agreed to the care package.
19. The social worker discussed the discharge plan with medical staff who raised concerns the proposed package did not meet Mr Y’s care needs. The social worker’s colleague contacted Mr X and told him about the proposed care package. Mr X raised concerns it did not meet Mr Y’s care needs.
20. The Council issued the care plan. It noted Mr Y was at risk of further falls and injury which could result in a hospital admission. It did not detail how it managed this risk.
21. Mr X contacted the Council several times. The Council noted Mr X requested a call to discuss the discharge care package. The Council did not return his call.
22. Mr Y was discharged home with the care package. The same day, Mr Y had another fall and was readmitted to hospital.
23. Mr Y has since died.

Analysis

Capacity assessment (part a of the complaint)

24. Mr X complains the assessor did not involve him in Mr Y’s capacity assessment. There is no legislative duty for assessors to involve family members or Power of Attorneys in capacity assessments. I find no fault with the Council’s decision-making not to involve Mr X in Mr Y’s capacity assessment.
25. Mr X disagreed with the outcome of the capacity assessment. I am satisfied the assessor was a suitably qualified person to assess Mr Y’s capacity. I am satisfied the assessment properly considered the four points required in a capacity assessment, as detailed by law and outlined in paragraph eleven above. I find no fault with the Council’s decision-making and therefore I cannot question the outcome.

Discharge care plan (part b of the complaint)

26. The Council considered Mr Y’s care needs could be met in a residential care home. Mr Y was clear he did not want to live in a residential care home. The Council assessed Mr Y had capacity to make this decision. A care plan should reflect the person’s wishes. I do not find fault with the Council’s decision-making in considering a package of home care only.
27. This said, I am not satisfied the Council properly considered all relevant information available in its decision-making process to formulate the care plan. The Council increased care hours and the number of carers for each visit which demonstrates it considered Mr Y’s needs had changed. The Council also identified Mr Y was at risk of further falls resulting in hospital admission. The Council did not show proper consideration of the information provided and concerns raised about the proposed care plan by medical staff or Mr X. It has not evidenced proper consideration of all discharge care options available to Mr Y. The care plan also did not detail how the Council would mitigate the risk of falls. The care plan should be person centred and meet Mr Y’s assessed needs. The Council told the Ombudsman it considered Mr Y’s care plan offered the least restrictive care. The Council has not evidenced it properly considered all relevant available information in assessing Mr Y’s needs or how the plan met these needs. I find fault with the Council’s decision-making whilst formulating Mr Y’s care plan.
28. I cannot say, even on a balance of probabilities, the care Mr Y would have received if the Council had properly considered all relevant information and options available to Mr Y in its decision making. I also cannot say if Mr Y had been discharged with a properly considered care plan it would have prevented him experiencing another fall. However, I consider the Council’s failure to properly consider Mr Y’s care plan has caused Mr X significant unnecessary and avoidable distress and uncertainty.

Poor communication (part c of the complaint)

29. The Council accepts its communication with Mr X was not to standard it seeks to achieve. It apologised to Mr X for not returning his calls to discuss the proposed care plan prior to Mr Y’s discharge. I have addressed this fault and injustice it caused to Mr X in the section above.
30. The Council has since taken action to improve its communication during the discharge care planning process. It introduced a new approach where the first assessor maintains involvement with the patient throughout their care planning process until their discharge. It also introduced set timescales for all workers to communicate with relevant parties to increase communication and ensure it is consistent throughout the team.
31. The Council offered Mr X a face-to-face meeting to discuss his complaint and the Council’s learning. Mr X can contact the Council to arrange this meeting if he wishes.

Back to top

Action

32. 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. If we consider the person who has complained to us has also been adversely affected by the fault, we may recommend a remedy.
33. Within four weeks of my final decision, the Council has agreed to:
1. make a written apology to Mr X for the unnecessary and avoidable uncertainty and distress caused to him by not properly considering all available information when formulating Mr Y’s care plan.
2. tell the Ombudsman what learning it has identified from this decision and how it plans to address this to ensure all information is properly considered in its care planning process.
34. 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.
35. The Council should provide us with evidence it has complied with the above actions.

Back to top

Decision

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

Back to top

Investigator's decision on behalf of the Ombudsman