Summary: Miss X complained on behalf of her grandmother and her family. She complained the Council failed to carry out proper assessments to establish her grandmother’s mental capacity and care needs. She also complained it did not complete carers’ assessments for members of Mrs Y’s family. We found fault by the Council on all matters. The Council agreed to apologise and make a symbolic payment to Mrs Y and her family in recognition of the injustice caused to them.

The complaint

1. Miss X complained on behalf of her grandmother, Mrs Y, herself and Mrs’s Y’s two daughters. She complained the Council failed to carry out proper assessment of Mrs Y’s care needs and mental capacity when her family sought a care home placement for her.
2. Miss X stated this prevented Mrs Y from receiving the care she needed to meet her needs and put avoidable strain on her family to provide care for her at home.

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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. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the relevant available 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 my draft decision. I considered any comments before making a final decision.

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What I found

8. 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.

Mental capacity assessment

9. 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.
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.

Carer’s Assessment

11. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
12. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

What happened

13. Mrs Y has vascular dementia. She lived on her own in sheltered housing and received support from her daughters and Miss X. She also received a care and support package from the Council.
14. In late January 2025 Mrs Y was hospitalised with low blood pressure.
15. Miss X asked the Council to reassess Mrs Y’s needs before discharging her from hospital. She explained Mrs Y’s dementia was affecting her physical health and she was finding it difficult to cope at home and required significant support from her family.
16. In February the Council reassessed Mrs Y’s needs before discharging her from hospital. Mrs Y’s care records show:
• Mrs Y knew she was in hospital but was unaware of why and of the time.
• Miss X was worried about Mrs Y managing at home and that she could be at risk from falls. She also expressed concerns about Mrs Y’s ability to manage emotionally and mentally at home.

The social worker said a review of Mrs Y’s care would be undertaken after she was discharged from hospital.

17. Mrs Y returned home in early February. She had a care package consisting of four, 45 minute calls every day.
18. On 12 February Mrs Y’s care records show the Council completed a review. The record showed Mrs Y’s health had declined since the last review. It found she was eating and drinking less, sleeping a lot, was confused about the date and time and had badly bruised legs. It was agreed to put in night care for a few days because Mrs Y was becoming distressed at night.
19. On 22 February Mrs Y returned to hospital after hurting herself using her Zimmer frame.
20. In late March the Council assessed Mrs Y. Records of the assessment state:
• Mrs Y could not remember where her home is or that she was in hospital.
• hospital staff have been helping her mobilise with her Zimmer frame and encouraging her to eat and drink.
• Miss X explained Mrs Y’s health and cognition have declined since the start of the year. She said Mrs Y cannot be trusted to mobilise safely on her own.
• Miss X also explained Mrs Y is anxious at night and is regularly using her pendant alarm to call her family for reassurance. Mrs Y’s family are spending significant amounts of time caring for her and this is affecting their health.

The review agreed that Mrs Y would receive 45-minute calls, four times per day and it would review her care six weeks after she was discharged from hospital.

21. Unhappy that Mrs Y had not been offered a care home placement, Miss X complained to the Council in late March. She complained the Council had not considered Mrs Y for a care home placement despite her demonstrating the need for one. She also complained:
• health professionals supporting Mrs Y have questioned why she does not have a care home placement.
• the Council has not listened to Mrs Y’s family’s concerns about her returning home. Instead the Council has focused on introducing measures such as providing bed sensors, but these will not prevent harm to Mrs Y.
• carers assessments were not completed for Mrs Y’s family members despite the Council being aware of the physical and mental stress caused to them by caring for her.
22. In early April a pre-discharge meeting was held with Miss X and professionals working with Mrs Y. Records of the meeting show the following was discussed:
• Mrs Y mobilises with a Zimmer frame but needs supervision, is unstable on her legs and at a high risk of falls.
• Mrs Y has no insight into her care and support needs because of her dementia.
• Mrs Y needs prompting to eat, drink and follow routine.
• Mrs Y’s doctor feels her needs would be best met in a care home placement.

The assessment found Mrs Y should leave hospital and be put into a discharge to assess bed for further assessment.

23. Mrs Y was subsequently discharged into a care home placement under discharge to assess.
24. In June the Council replied to Miss X’s complaint. It said:
• the Council failed to complete a formal mental capacity assessment for Mrs Y during the period complained about.
• care records show the January assessment of Mrs Y’s needs assumed she had mental capacity but there is no record of how this was considered. The record does not address the key elements of assessing capacity. Therefore it cannot conclude that Mrs Y had capacity to decide to return home in January 2025.
• the review of Mrs Y’s care held in February did not consider evidence and risks identified in a care report and so it was not clear how Mrs Y was managing her care.
• it did not complete a mental capacity assessment until Mrs Y moved into a long-term care placement. The failure to complete this sooner means insights into Mrs Y’s care needs and the risks to her were not incorporated into her care and support plan.
• it did not complete a carer's assessment despite holding information that this was necessary for Mrs Y’s family members.
• it recognised there was an over reliance in assessments on Mrs Y’s responses to questions and to mitigating risks to her using equipment such as sensors.
• it accepted it needed to improve its services to prevent a recurrence of the fault identified. It also apologised to Mrs Y and her family.
25. Unhappy with the Council’s response Miss X complained to the Ombudsman.
26. In response to our enquiries the Council provided a copy of Mrs Y’s care records and told us it had taken action to prevent a recurrence of the fault it identified. The actions included:
• having a closure section to its assessment template to ensure actions are clear.
• ensuring relevant staff have attend refresher training on the Mental Capacity Act and for senior staff to check a mental capacity assessment is completed where appropriate.

Finding

27. The Ombudsman’s role is to review how councils have made their decisions. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant information, or not properly explained a decision it has made. We call this fault, and, where we find it, we can consider any consequences of the fault and ask the council to address these.
28. However, we do not make operational or policy decisions on councils’ behalf, provide a right of appeal against their decisions, or seek to replace their judgement with our own. If a council has made a decision without fault, then we cannot criticise it, no matter how strongly a complainant feels it is wrong. We do not uphold complaints simply because someone feels a council should have done something different.

Mental Capacity Assessment

29. The Mental Capacity Act says the Council must carry out a Mental Capacity Assessment (MCA) when a person’s capacity to make decisions is in doubt.
30. The Council did not complete a Mental Capacity Assessment for Mrs Y until May 2025, despite Mrs Y having cognitive impairment and care assessments in January, February and March identifying she was disorientated in time and place.
31. The assessments carried out prior to the Council completing a Mental Capacity Assessment in May do not explain why an MCA was not completed nor if it was considered that Mrs Y had capacity.
32. The Council is at fault for delay completing an MCA and because its actions were not in keeping with the Mental Capacity Act.

Care Assessments

33. The care assessments completed for Mrs Y detail concerns raised by Miss X about Mrs Y being at risk of falls and being anxious when alone at night. However despite these concerns being raised the assessments do not clearly discuss these risks or consider if Mrs Y needs could be meet in her current accommodation.
34. Furthermore as noted in the Council’s complaint response the completed assessments did not consider all the available information when coming to a view on Mrs Y’s care needs. For this reason I cannot be certain Mrs Y’s care needs were properly considered and that it gave due regard to whether her needs were best met by returning home.

Carers Assessments

35. The care assessments for Mrs Y explain that Mrs Y’s daughte’s and Miss X were providing care for Mrs Y at her home. The assessments also noted that Mrs Y’s family members were experiencing stress and burnout. This should have triggered the Council completing carer assessments. The failure to do so is fault.

Injustice caused to Mrs Y and her family

36. I am satisfied the fault that I have identified caused Mrs Y’s family avoidable distress and uncertainty while they tried to provide and arrange suitable care for Mrs Y. This is injustice.
37. I am also satisfied Mrs Y has been caused an injustice because of the fault identified. I cannot know what would have happened if an MCA or a fully considered care assessment had been completed and whether this would have altered the support she received. However this has caused Mrs Y uncertainty, which is injustice.

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Agreed Action

38. Within one month of my final decision the Council will:
• apologise in writing to Mrs Y and her family for the identified fault and injustice.
• make a payment of £350 to Mrs Y’s family to reflect their distress and uncertainty caused to them.
• make a payment of £350 to Mrs Y to reflect her uncertainty caused to her.
39. The Council has completed actions to address the fault I identified and so I do not consider is it necessary to make service improvement recommendations.
40. The Council should provide us with evidence it has complied with the above actions.

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Decision

41. I find fault causing injustice. The Council has agreed to actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman