Summary: We did not find fault in the Council’s actions when Mrs Y’s health declined. It carried out appropriate social care and capacity assessments, involved Mrs Y and Mr X and relevant professionals. Those assessments led to Mrs Y being placed in a care home because of an increase in the risk of self-neglect. There was a delay in responding to Mr X’s complaint which was fault causing avoidable frustration. The Council has already apologised. The Council will monitor the Care Provider’s complaint handling through its regular quality monitoring meetings.

The complaint

1. Mr X complained about his relative Mrs Y’s care, arranged by the Council and provided by Comfort Call Ltd (the Care Provider). He complained:
1. The Council failed to review Mrs Y’s care and support needs from July 2021 when her condition declined
2. The Care Provider delayed responding to his complaint
3. Care workers did not change Mrs Y’s sheets after an episode of incontinence, were rude, accused him of not helping Mrs Y and barred him from entering the block.
4. Mrs Y did not get appropriate care and support around feeding, bathing, clothing, attending appointments, stopping her from wandering and encouraging her to smoke.
2. Mr X said this caused him avoidable distress and prevented him from working.

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What I have and have not investigated

3. I have investigated complaints (a) and (b).
4. I have not investigated complaint (c) because:
• The Care Provider has upheld the complaint about not changing sheets and made changes to practice so in future all staff will check sheets are clean. I could add nothing further by investigating because there is unlikely to be further evidence about whether or not the sheets were changed on one particular occasion. And, I would recommend the same changes to practice which the Care Provider has already implemented. So further investigation would add nothing to the Care Provider’s complaint response
• There was no fault in care workers not allowing Mr X entry as Mrs Y was no longer living on the premises
• The injustice caused by the care worker’s comments is not significant enough for me to investigate.
5. I have not investigated complaint (d) because Mr X did not complain to the Council or Care provider about these issues. We expect people to complain locally before we investigate a complaint and it is reasonable for Mr X to have raised these matters with the Council and Care Provider at the time.
6. Mr X complained to us in January 2023 so matters before January 2022 are late. I have investigated from July 2021 because the Care Provider accepted there had been a six-month delay in responding to his complaint. As Mr X was waiting for a response from the Care Provider, this was a good reason for his delay in complaining to us.

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The Ombudsman’s role and powers

7. The law says we cannot normally investigate a complaint unless we are satisfied the council/body knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council/body of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
8. We provide a free service, but we use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organization.

(Local Government Act 1974, section 24A(6))

9. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
10. 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)
11. 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

12. I considered Mr X’s complaint, the responses to his complaint and documents set out in this statement. A colleague discussed the complaint with Mr X
13. Mr X, the Council and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

14. Councils should have clear procedures to deal with social care complaints. Regulations and guidance say they should investigate and resolve complaints quickly and efficiently.
15. Regulations do not say how long a complaint investigation should take. But they do say an expected timescale must be explained at the start, usually in discussion with the complainant.
16. The body must keep the complainant informed of progress during the investigation ‘as far as reasonably practicable’. If the responsible body has not provided its response after six months (or after a longer period agreed with the complainant), it must write to the complainant to explain why. (Regs 13 and 14, Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
17. A council must 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 outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9)
18. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
19. An adult’s needs meet the eligibility criteria if they arise from or are related to a physical or mental impairment or illness and as a result the adult cannot achieve two or more of the following outcomes and as a result there is or is likely to be a significant impact on well-being:
• Managing and maintaining nutrition
• Maintaining personal hygiene
• Managing toilet needs
• Being appropriately clothed
• Making use of the home safely
• Maintaining a habitable home environment
• Accessing work, training, education
• Making use of facilities or services in the community
• Carrying out caring responsibilities.

(Care and Support (Eligibility Criteria) Regulations 2014, Regulation 2)

20. The Care Act explains the different ways a council can meet eligible needs by giving examples of services that may be provided:
• Accommodation in a care home or other premises
• Care and support at home
• Counselling and social work
• Information advice and advocacy

(Care Act 2014, section 8)

21. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs. (Care and Support Statutory Guidance 2014, Paragraph 6.24)
22. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. (Care Act 2014, sections 24 and 25)
23. An Independent Mental Capacity Advocate (IMCA) is a legal safeguard for people who lack capacity to make decisions about where they live and serious medical treatment options. An IMCA supports the person and represents them in discussions, provides information to help work out what is in their best interests and presents the person’s views to the decision maker.
24. The Mental Capacity Act and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt. (Code of Practice paragraph 4.34)
25. Where a person lacks capacity to make a decision, any decision made on their behalf should be taken in their best interests. There is a checklist of things to consider including:
• The person’s past and present wishes and feelings
• The beliefs and values which would influence them if they had capacity.
26. Councils need to consider the least restrictive option if there is a choice of options to achieve the same aim.
27. When dealing with adults who lack capacity to make decisions about their care, councils should consult and take into account the views of: people the person has named to consult; carers; their attorney or deputy. Generally, councils consult about care and support plans by holding a best interests’ meeting involving relevant people.

What happened

Background

28. Mrs Y has severe and enduring mental health problems and lived in extra care sheltered housing since an admission to a psychiatric hospital in 2018. Mr X moved in with Mrs Y temporarily in 2021 during the lockdown to support his mother. The records note he was not supposed to be living there because of the conditions of the tenancy.

Key facts

29. The ambulance service referred Mrs Y to the Council at the end of July 2021 after paramedics attended her during an episode of mental-ill health. The referral form said Mrs Y may need care support at home, in particular with getting up, washed, dressed and meal preparation.
30. A social worker carried out an assessment of Mrs Y’s social care needs at the start of September. This noted she already had twice daily care and support from the Care Provider linked to the sheltered housing block where she lived. Care workers administered her medication and checked on her. The assessment said:
• She could make her own decisions
• She would like the carers to help her with cooking as she had lost her appetite and didn’t want to eat the things she cooked
• She could manage her own money
• She was independent in many daily activities including washing and dressing, cooking (though currently having difficulties and may benefit from assistance), cleaning, managing finances, accessing the community (though currently had a lack of confidence and may benefit from some assistance)
• She was very independent and after speaking to her mental health nurse, it was agreed to support and promote her independence and she had carers that were available for more input where needed
• Care workers administered Mrs Y’s medication twice a day.
31. The outcome was Mrs Y was eligible for care and support in the areas of:
• Managing nutrition
• Maintaining personal hygiene
• Being able to make use of the home safely
• Developing and maintaining relationships
32. In summary, the assessment outcome was Mrs Y required some support with ‘some activities of daily living and with taking her medication and accessing the community.’
33. Mrs Y’s care and support plan of September 2021 said the Care Provider would provide the following care and support:
• Prompting and support to take medicine and to order prescriptions
• Reassurance when required and support to access the mental health nurse, GP and/or emergency services if Mrs Y’s health declined
• Support with meal preparation where required.
34. In December 2021, a social worker assessed Mrs Y’s mental capacity to decide on her long-term accommodation. The social worker noted Mrs Y had an advocate involved. They also noted Mrs Y could not recall why the social worker had visited, she could weigh information in the decision-making process and could communicate her wishes. The outcome was Mrs Y lacked mental capacity about her long-term accommodation. The Council consulted with relevant professionals and Mr Y about what was in Mrs Y’s best interests. There were different views about whether Mrs Y could manage with an increase in her care hours in sheltered housing or whether she needed to be in a care home for her safety.
35. A social care assessment in January 2022 noted a recent brain scan showed Mrs Y may have dementia. When confused, she threw away food and drink. The assessment noted concerns about using the cooker safely and about maintaining her personal hygiene (prompts with showering and washing her hands, dressing, confusion when cleaning and a lack of confidence accessing the community). The social worker did a second mental capacity assessment with the outcome being Mrs Y lacked capacity to make decisions about her care. The best interests’ decision was Mrs Y needed to be in a care home. Everyone agreed this because of the risk, particularly around smoking and cooking. The Council then arranged for Mrs Y to go into a care home.
36. Mrs Y’s care and support plan of January 2022 set out the agreed placement in a care home.
37. The Council completed another social care assessment in April 2022. This noted there had been a decline in Mrs Y’s ability to recall information and follow instructions in the previous six to eight months. She struggled to recall words. She was found wandering in the night and was distressed. She could not maintain personal hygiene or the home and the risks could not be managed in sheltered housing so she needed to be in a care home. The assessment noted Mr X was not in a position to be able to care for Mrs Y because of other responsibilities. She remained eligible for adult social care services.
38. Mr X had complained to the Care Provider in March 2022. There was no response until November. The Care Provider apologised for the delay, said it could not say whether or not the sheets had been changed but would ensure staff checked sheets in the morning in future and did not uphold the rest of Mr X’s complaints.
39. Mr X complained to the Council in September. It responded in January 2023, apologising for the delay in responding. The Council said:
• A social worker assessed Mrs X in September 2021
• There were several assessments of her mental capacity
• Mrs X was placed in residential care in January 2022 temporarily. The placement was made permanent in May after a further assessment of her capacity.
40. Unhappy with the Council and Care Provider’s responses, Mr X complained to us.

Was there fault?

The Council failed to review Mrs Y’s care and support needs from July 2021 when her condition declined

41. The Council became aware that Mrs Y may need additional care and support at the end of July when the ambulance service made a referral. A social worker carried out a social care assessment at the start of September. This was within a reasonable timeframe given Mrs Y already had on-site care workers and was living in sheltered housing. The outcome was for the Care Provider based at the sheltered housing scheme to provide additional support around preparing meals when this was needed. This in line with the Council’s duty to assess needs, determine eligibility and put in place a care and support plan to meet needs.
42. The available evidence indicates it was not apparent Mrs Y’s health was declining in September. It was not until the end of 2021 when she had a brain scan and a possible dementia diagnosis in January 2022, that the decline was apparent. I am satisfied the Council responded in line with its duties in the Care Act 2014 by completing another social care assessment and arranging a temporary placement in residential care. I realise this would have been a stressful time for Mr X and also for Mrs Y, but I consider the Council responded with appropriate action and within an acceptable timeframe.
43. A social worker assessed Mrs Y’s mental capacity to make decisions about her care and housing. This was done in consultation with professionals, her advocate and Mr X. The outcome was she lacked capacity and so the Council made a best interests decision again with the involvement of relevant professionals and relatives. This was in line with the principles of the Mental Capacity Act as I have set out in paragraphs 23 to 27.
44. I realise that Mr X would have been very concerned about his mother’s safety and well-being. But my view is the Council acted appropriately in carrying out assessments and responding to the increased risk around smoking and cooking where it was then felt she could not remain in sheltered housing safely.

The Care Provider delayed responding to the complaint

45. The Care Provider took six months to respond to the complaint. This was excessive given it was not a complex complaint. There was fault in complaint handling causing Mr X avoidable frustration. He escalated his complaint to the Council and it apologised for the delay and provided a response which included the social care team’s involvement in Mrs Y’s case. This was an appropriate response.

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Agreed action

46. The Council will, within one month, put in place a system to monitor the Care Provider’s complaint response times to ensure complaints are dealt with promptly. This could be done at regular quality monitoring meetings which should already be taking place. Complaint handling will be added to the agenda for items to discuss at the meetings with the Care Provider.
47. The Council has already apologised for the delay in responding to Mr X’s complaint. This is an appropriate action to reflect his avoidable frustration and no further recommendations are needed.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. We did not find fault in the Council’s actions when Mrs Y’s health declined. It carried out appropriate social care and capacity assessment, involved Mrs Y and Mr X and relevant professionals. There was a delay in responding to Mr X’s complaint which was fault causing avoidable frustration. The Council has already apologised which was an appropriate action. It will monitor the Care Provider’s complaint handling through its regular quality monitoring meetings.
50. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman