Summary: The Council did not intervene in Mrs X’s private care arrangements. There was no fault in the way the Council acted.

The complaint

1. Mr A (as I shall call the complainant) says the Council intervened to prevent the care agency which had previously cared for his mother, Mrs X, from looking after her on her discharge from hospital.

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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. If we are satisfied with a council’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

3. I considered all the written information provided by the Council and Mr A. Both the Council and Mr A had an opportunity to comment on a draft statement and I considered their comments before I reached a final decision.
4. I cannot include all the evidence I have seen in this statement but I am satisfied its inclusion would not alter my findings.

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What I found

5. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)
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. 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 themselves.

A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:

because he or she makes 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.

7. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.

What happened

8. Mrs X lived in an annexe to her son’s home: Mr A has power of attorney for his mother’s affairs. She arranged and paid privately for carers to help with some personal care tasks.
9. In July 2018 Mrs X was admitted to hospital. While she was an inpatient someone raised a safeguarding alert with the Council with an allegation that Mr A wanted Mrs X to go into a care home and not return to her own home on discharge. The Council’s records show that social workers planned to meet Mrs X as an initial assessment of any risk to Mrs X.
10. A hospital social worker discussed Mrs X’s care with Mr A and he said Mrs X had recently begin to refuse care from the care provider. Following the discussion the social worker spoke to the care provider who said Mrs X was more likely to accept care in the mornings but sometimes refused at night.
11. Mrs X was discharged from hospital on 01 August with a “Discharge to Assess” package of care of four daily calls which the NHS arranged free of charge. On 02 August the social worker visited Mrs X at home (Mr A was also present) as Mr A had made an emergency call to the duty team after Mrs X was discharged: he thought she had been discharged too soon to cope at home.
12. The social worker noted she discussed with Mrs X and Mr A the support which was in place. She suggested equipment which might be helpful. The following week she called Mr A who confirmed the carers were being helpful and he thought Mrs X’s mobility was improving. She explained an NHS assessor would consider Mrs X’s long-term needs soon but as Mrs X had assets over the threshold amount she would fund her own care anyway.
13. The Council’s records show that the care provider who had attended Mrs X before her hospital admission called the Council to say Mr A had asked it to put 4 daily calls in place, and to ask how the calls would be funded. The social worker completed her case summary and emailed it to a team leader asking for a worker to be allocated to take over the case and to confirm with the care provider what future arrangements would be.
14. On 14 August Mrs X was readmitted to hospital after a fall. The social worker visited her again on 17 August to talk to her about her welfare and about the safeguarding concern. The social worker asked Mrs X if she wanted anyone else present and Mrs X said she did not. The social worker’s professional judgement was that Mrs X had capacity to make that decision.
15. The Council’s records show the care provider telephoned the social worker on 14 August to discuss Mr A’s request to start the calls again. The social worker explained Mrs X had been readmitted to hospital. The care provider said it had been holding back calls for over a week in case it could restart but could not continue to do so as it could fill those spaces.
16. Mr A says the care provider told him the Council had told it not to provide care for Mrs X. He disputes the Council’s statement.
17. As Mrs X was medically fit for discharge but the care provider could not arrange care, Mrs X was discharged with a further “Discharge to Assess” care package as an interim measure. The social worker decided there was no basis to pursue a safeguarding investigation and closed the case.

The complaint

18. On 21 August Mr A complained to the Council. He said he had discovered from the care provider that the Council had started a safeguarding investigation and he said this had prevented the care provider from providing care to his mother again. He complained that the Council had interviewed his mother alone, was only interested in providing services itself for his mother for financial gain, and had failed to discuss the safeguarding investigation with him.
19. The Council started an investigation plan but before it made contact with Mr A, it was contacted by his MP whom he had approached about his complaint. On 11 September a director of social care spoke to Mr A and agreed to investigate his complaint.
20. The Council issued a complaints report in November. It wrote to Mr A confirming neither the NHS Trust nor the Council had told the care provider it could not provide care for Mrs X. It said all procedures had been followed correctly, including the interview with Mrs X, but the number of different professionals involved might have led to a breakdown in communication and it undertook to review that.
21. Mr X complained to the Ombudsman. He said the Council’s intervention had prevented his mother choosing who she wanted to provide care and he had been put the trouble of looking for a new care provider. He says the Council should have told him about the safeguarding enquiry and should not have told the care provider not to provide care.

Analysis

22. The Council had a duty to investigate the allegation. It followed correct procedures in the way it acted. Mrs X had capacity to make her own decisions about being interviewed alone and had the right to do so.
23. The Council did not tell the care provider it could not provide care for Mrs X. The records show the care provider did not have capacity at the point when it was asked to restart. Mr A disagrees with this account and says the Council told the care provider not to provide care. That is not what the records say.
24. The Council responded to the complaint within a reasonable timescale although not as promptly as Mr A wanted. Although it did not identify fault in its processes, it undertook as good practice to review some of its communication systems.

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Final decision

25. There was no fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman