Summary: There is no evidence of fault by the Council in the way it dealt with Mrs Y's care arrangements. It acted properly and in accordance with the law.

The complaint

1. Mr X complains about the way the Council handled his mother, Mrs Y’s home care.

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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 future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
    
3. 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(i), as amended)

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How I considered this complaint

4. I have:

• considered the complaint and discussed it with Mr X;
• considered the correspondence between Mr X and the Council, including the Council’s response to her complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Mr X and the Council an opportunity to comment on a draft of this document, and consider the comments made.

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What I found

Relevant legislation

5. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual 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.
6. 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. 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 themselves.
7. There are five principles which underpin the Act.

• Principle 1: A presumption of capacity
• Principle 2: Individuals being supported to make their own decisions
• Principle 3: Unwise decisions
• Principle 4: Best interests
• Principle 5: Less restrictive option.

8. People cannot be assumed to lack capacity because of age, appearance, condition or behavior.
9. People should receive support to help them make their own decisions. Before concluding that someone lacks capacity to make a particular decision, it is important to take all possible steps to try to help them reach a decision (principle 2).
10. People have the right to make decisions that others might think are unwise and should not automatically be labelled as lacking the capacity to decide (principle 3).
11. A council must assess someone’s ability to decide, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.

Key facts

12. During this investigation, I considered information provided by the Council. Some of this information has been submitted under 32(3) of the Local Government Act, which means I am unable to go into any detail. I can however say whether the Council acted properly.
13. At the time of the events Mrs Y lived at home and received home care services. Mr X lived in an adjacent property.
14. Following a stay in hospital, the Council reviewed Mrs Y’s needs on 16 February 2022. Mrs Y and two other family members were present.
15. Mr X says he was excluded from the meeting. He says one of the family members was wrongly listed on the Council’s records as Mrs Y’s next of kin.
16. The Council’s records show Mrs Y was able to express her wishes about which family members attended the meeting and who she wanted involved in her care. She said Mr X was her next of kin, but that another family member could also be listed as next of kin and as an emergency contact.
17. The records show the care company telephoned Mr X to ask if he wished to attend the meeting, but he declined saying he had to be at work. Mrs Y was asked if she wished to have Mr X attend the meeting, she said he would be sleeping. Mr X telephoned Mrs Y during the meeting, and it was apparent from the conversation he was aware the meeting was underway.
18. The Council says there was no concern about Mrs Y’s capacity to make decisions about her care, therefore there was no requirement for a formal mental capacity assessment.
19. Mrs Y was admitted to hospital again on 19 March 2022. The Council had concerns about the circumstances around the admission and about Mrs Y’s wellbeing, so it commenced a safeguarding investigation. As part of the investigation a social worker and a police officer visited Mrs Y in hospital. Both the social worker and the police officer were satisfied that Mrs Y had capacity to make decisions about her home circumstances and the investigation was closed.
20. Mrs Y returned home, and the Council reinstated the care package.
21. Mr X says the quality of care provided to Mrs Y was unsatisfactory. He says one of council officer was a friend of a relative and this created some difficulty.
22. The Council did not receive any complaints about the quality of care provided to Mrs Y’s care between January and May 2022. Mrs Y made no reference to a carer being a friend of a relative.
23. In May 2022 the Council received a telephone message from Mr X saying Mrs Y had undergone a private assessment of her mental capacity and had been ‘deemed’ to lack capacity. Mr X has not provided the Council nor this office with documents to confirm this.
24. Mr X says the Council wrongly charged Mrs Y for home care whilst she was in hopsital between 7 July 2022 and 6 August 2022, when she passed away. Mr X says the Council acknolweged this, but it has yet to reimburse Y’s estate.The Council says its fianance team reveiwed the account and will provide Mr Y with a revised invoice, but as there is an outstanding debt on the account any amendment will reduce the outstanding debt.
25. Following Mrs Y’s death, two social workers made an unannounced visit to his home on 16 November 2022. Mr X says the officers misrepresented their identity and the puropose of the visit. The Council says there is no evidence to suggest the officers misrepresented themselves and it is not possible to come to a finding on the content of the discussion.
26. The Council received a complaint from Mr X in November 2022. A council officer telephoned Mr X to discuss the complaint. Mr X says the officer’s manner towards him was unacceptable and unprofessional. The Council says the officer disputes this allegation, he (officer) recalled the conversation with Mr Y to be challenging and that he advised Mr X to put his complaint in writing.
27. Mr X submitted a further complaint to the Council in December 2022. The Council responded to Mr X in writing on 26 January 2023. The author of the letter responded to each aspect of the complaint. Aside from the charging error, for which the author acknowledged and apologised, all other aspects of the complaint were not upheld.

Analysis

28. Although I am unable to go into any detail about the information I have seen, Mr X can be reassured I have carefully considered all the information.
29. I have found no evidence of fault by the Council in the way it dealt with Mrs Y’s care arrangements. It acted properly and in accordance with the law. It kept records of all contact with Mrs Y and other family members. Any actions were in accordance with Mrs Y’s wishes. I find no fault by the Council here.
30. There is no evidence to show Mr X was excluded from a meeting held at Mrs Y’s home. The records show Mrs Y said Mr X was unavailable, and that she consented to the presence of other family members.
31. There is no evidence to support Mr X’s claim that Mrs Y lacked capacity to make decisions about her care arrangements. All the records show Mrs Y was able to engage in discussions about the arrangements, that she was satisfied with the care provided and understood the costs involved. The law says there should be an assumption of capacity unless there is evidence to the contrary. As there was no doubt about Mrs Y’s capacity to make decisions about her care, there was no requirement for a mental capacity assessment. I find no fault by the Council here.
32. There is further evidence of Mrs Y’s capacity in the safeguarding documentation. A police officer and a social worker described Mrs Y as having ‘full capacity’.
33. In respect of Mr X’s complaint about two social workers visiting his home to check on his welfare after Mrs Y’s death. I cannot find fault with the visit itself. The Council was not wrong to respond to concerns raised about Mr Y’s welfare, it had a duty to do so. It is not possible for me to come a finding on the conduct of the visit. There are clearly different positions on this. Complaints like this are often difficult to consider when it relates to a verbal conversation. I was not there or involved in the discussion in any way, therefore I unable to come to a finding on this.
34. For the same reason I am unable to come to a finding on Mr X’s complaint about a telephone conversation he had with a council officer following his initial complaint in November 2022.

Final decision

35. There is no evidence of fault by the Council in the way it dealt with Mrs Y’s care arrangements. It acted properly and in accordance with the law.
36. It is on this basis; the complaint will be closed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman