Summary: Mrs X complains about the standard of care provided to her foster father. She says there were signs her foster father’s ability to cope at home had declined and the Council did not take action to safeguard him. The Ombudsman finds fault with the Council for not arranging appropriate care and support for her foster father in January 2018. We also find fault with the Council for not completing a mental capacity assessment. We do not find fault with the Council’s care assessments.

The complaint

1. Mrs X complains about the standard of care provided to her foster father, Mr A, between November 2017 and January 2019. She says there were signs Mr A’s ability to cope at home had declined. Mrs X says the Council did not take action to safeguard him.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I spoke with Mrs X and considered the information she provided.
6. I made enquiries with the Council and considered the information it provided.
7. I sent a draft decision to Mrs X and the Council and considered their comments.

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What I found

Mental Capacity Act 2005

8. The Mental Capacity Act 2005 sets out the principles for working with people who lack capacity to make a particular decision. The five key principles in the Act are:
• Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
• A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
• Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
• Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
• Anything done or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.
9. References to capacity are to a person’s capacity to make a particular decision at the particular time it needs to be made.
10. Local authorities should ensure they respect the first principle of assuming capacity. However, it is important to carry out an assessment “when a person’s capacity is in doubt”. (Mental Capacity Act Code of Practice, paragraph 4.34)

The Care Act 2014

11. The Act requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve.
12. Where an assessment decides that a person has any eligible needs, councils must meet these needs. Councils must provide a care and support plan which outlines what services are required to meet the needs and a personal budget which sets out the cost of the services.

Care and support statutory guidance

13. The guidance notes the guiding principles of the development of a care and support plan is for the person to be actively involved. The plan must detail the needs to be met and how the needs will be met. It should also reflect the individual’s wishes, their needs and aspirations, and what is important to and for them. (paragraph 10.31 and 10.32)

What happened

14. Mrs X’s foster father, Mr A, had a diagnosis of Alzheimer’s and had prostate cancer. Mr A received care from a care provider, privately arranged by Mrs X. Mr A’s wife, Mrs A, is in a care home (Care Home K).
15. In November 2017, Mrs X raised concerns with the Council about Mr A’s incontinence issues. She asked the Council to complete a care assessment for Mr A.
16. The Council completed a care assessment which noted Mr A had eligible needs. The Council arranged for Mr A to receive a package of care at home to meet these needs. The package was made up of three care visits a day, totalling just under two hours. The care package was delivered by the same care provider who was already providing care to Mr A.
17. The Council recorded Mr A’s wish to remain living at home and noted Mr A did not appear to lack capacity to make decisions about his care and support or his accommodation. The assessment also noted there were no concerns about Mr A’s ability to make other key decision.
18. The records showed Mrs X raised concerns with the Council about Mr A staying safe at home. She also said that Mr A’s illness made it difficult for him to understand the consequences of his decision.
19. In December 2017, Mrs X told the Council Mr A needed to have a catheter to empty his bladder. Mrs X also stepped down from being Mr A’s primary contact. She said she did this as she did not support him living at home and wanted him to move to a care home. Mrs X said the Council stopped communicating with her about her father’s care at this point. Mr A’s main contacts at this point were his brother in law and niece.
20. In January 2018, Mr A’s care provider raised concerns with the Council about how Mr A was managing his catheter. The care provider suggested the Council arrange an extra call in the evening to help with this. The records showed the Council did not arrange the suggested extra call in the evening due to difficulty in sourcing a care provider.
21. At the end of January 2018, the Council asked the care provider if Mr A still needed the extra support call. The care provider told the Council Mr A did not need the extra support and was managing.
22. In May 2018, Mr A’s care provider raised concerns with the Council about Mr A wandering in the evening and losing his keys. The Council noted the concerns and arranged for a reassessment of Mr A’s care.
23. The Council completed the reassessment at the end of May 2018. The Council met with Mr A for the reassessment. The Council’s reassessment noted the following:
• Mr A wished to remain living at home
• There were no concerns about Mr A’s capacity to make decisions about his care and support and accommodation.
• Mr A’s brother in law and niece in law wanted him to remain living at home if his needs could be met, and it was safe.
• Mr A could not always process information.
• Mrs X managed Mr A’s finances as he could not understand and retain information relating to his assessed contribution.
24. The reassessment noted there were no issues with Mr A’s care plan, and it remained the same.
25. In June 2018, Care Home K raised concerns about Mr A’s appearance and that his clothes were not clean. Care Home K also said it had to change Mr A at the care home as he had an incident with his catheter bag.
26. The Council contacted Mr A’s care provider about this. The care provider acknowledged it knew Mr A fiddled with his catheter bag and that he had time to do this before the taxi arrived to take him to Care Home K. The Council suggested changing the type of catheter bag or taping up the tap on the bag as a solution.
27. In July 2018, Care Home K reported continuing problems with Mr A arriving in wet clothes and smelling of urine. The records showed the Council was in contact with Mr A’s care provider, his brother in law, and Care Home K about the matter. The Council also contacted the community nurse to try and source a different catheter bag for Mr A.
28. At the end of July 2018, the Council completed a reassessment of Mr A’s care needs. The Council met with Mr A for the reassessment. The reassessment noted Mrs X’s managed Mr A’s finances as he could not understand and keep information relating to his assessed contribution.
29. The Council increased the amount of care Mr A received due to the issues with Mr A’s catheter management. The Council arranged a care package of four visits a day, totalling just over 2 hours.
30. In December 2018, Mr A was admitted to hospital following a fall. Mr A died in January 2019.
31. In response to our enquiries, the Council said it acknowledged Mr A had been diagnosed with Alzheimer’s, but this did not preclude him from being able to make decisions for himself. The Council said Mr A declined going into residential care and had told the social worker he wanted to continue living at home. The Council said it took the view Mr A had the mental capacity to make this decision for himself.
32. The Council acknowledged it would have been useful to have completed a mental capacity assessment to document that Mr A could make the decision for himself.
33. The Council said there were no issues with Mr A’s care provider or with the care being provided. The Council also said Mr A’s family did not raise any safeguarding concerns about any deterioration in health or living conditions.

Analysis

Care assessments

34. The evidence shows the Council involved Mr A, Mrs X, his brother in law, and niece in law in the care and support assessment process. This was appropriate as it shows a person-centred approach which is in line with statutory guidance.
35. It is noted Mrs X was only involved with financial matters for Mr A after December 2017. However, there is no fault with this as Mrs X had told the Council she was stepping back from being the primary contact.
36. The assessments also consider all relevant information and clearly sets out Mr A’s eligible needs.
37. Therefore, there is no evidence to suggest the Council did not complete Mr A’s care and support assessments in line with the Care Act or statutory guidance.

Care provided

38. The evidence shows the Council was aware Mr A was having issues managing his catheter in January 2018. His care provider suggested an extra call to help with the matter.
39. It appears the Council agreed to the extra call, which suggests the Council recognised the extra care was appropriate to support Mr A. However, the Council did not put the care in place as it could not source a care provider. There is no evidence the Council took any other action to manage the issue. This is fault.
40. The fault identified may have caused Mr A distress, but I cannot remedy this now as Mr A has died. I do not consider the fault caused Mrs X any injustice as she would not have been aware of this at the time as she had stepped back from being Mr A’s primary contact.
41. Further concerns about Mr A’s ability to manage his catheter was raised in June and July 2018. The Council took appropriate action by completing a reassessment of his care needs. As a result, the Council increased Mr A’s care and support.
42. No other concerns about Mr A was raised between January 2018 and August 2018. The records show neither the care provider nor the Council were concerned about Mr A’s ability to cope at home. This suggests Mr A’s needs were appropriately met by the package of care arranged by the Council.

Mental capacity assessment

43. The Mental Capacity Act 2005 clearly sets out that every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise. In this case, the evidence shows the Council was trying to respect this principle as Mr A had made it clear he wanted to remain living at home.
44. However, the code of practice notes that it is important to complete a mental capacity assessment when a person’s capacity is in doubt. There is enough evidence to suggest there were reasons to doubt Mr A’s capacity.
45. Mrs X had raised concerns about Mr A’s ability to weigh up the consequences of his decision in November 2017. As Mrs X raised concerns about Mr A’s mental capacity, it would have been appropriate for the Council to complete a mental capacity assessment to satisfy itself, and Mrs X, that Mr A did in fact have the capacity to make decisions about his care and support.
46. Further, the Council noted in its July 2018 reassessment that Mr A could not make financial decisions. It does not appear from the evidence the Council determined this through a mental capacity assessment.
47. Although the Council decided Mr A did not have capacity to make financial decisions, this did not necessary mean he did not have capacity to make decisions about his care and support. This is because a person’s capacity refers to their capacity to make a particular decision at the time it needs to be made.

However, given Mr A lacked capacity to make some decisions in his life, this would suggest a mental capacity assessment was necessary to determine what areas Mr A had capacity to make decisions in. The Council did not complete a mental capacity assessment for Mr A. This is fault.

48. I consider the fault identified would have caused Mrs X distress. This is because she raised concerns about Mr A’s capacity at the time. Further, I do not know what decision the Council would have made had it completed a mental capacity assessment. Therefore, I consider the fault has also caused Mrs X uncertainty by not knowing whether Mr A did have capacity to make the decisions he did.

Agreed action

49. To remedy the injustice caused by the fault identified, the Council has agreed to complete the following:
• Apologise to Mrs X for not completing a mental capacity assessment for Mr A.
• Pay Mrs X £100 to recognise the distress and uncertainty caused by not completing a mental capacity assessment for Mr A.
• Remind relevant staff of the importance of completing a mental capacity assessment where concerns are raised about the person’s capacity.
50. The Council should complete the above remedy within four weeks of the final decision.

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Final decision

51. I find fault with the Council not arranging appropriate care and support for Mr A in January 2018. However, this fault did not cause any injustice to Mrs X. I also find fault with the Council for not completing a mental capacity assessment. I do not find fault with the Council’s care assessments.

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Investigator's decision on behalf of the Ombudsman