Summary: Mr X complained about how the Council handled Mrs Y’s care and the family’s requests for a residential placement. He also complained about the Council’s safeguarding actions after Mrs Y suffered injuries following a medical emergency. Mr X said this distressed Mrs Y and her family. There was fault in the way the Council did not complete appropriate assessments, delayed completing the safeguarding investigation and did not follow its complaint process. Mr X and Mrs Y were caused uncertainty and distressed by the fault identified. The Council should apologise, make a financial payment and provide guidance to its staff.

The complaint

1. Mr X complained about how the Council handled Mrs Y’s care and the family’s requests for a residential placement. He also complained about the Council’s safeguarding actions after Mrs Y suffered injuries following a medical emergency. Mr X said this distressed Mrs Y and her family.

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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. 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)
4. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I have and have not investigated

5. This is a complex case relating to matters involving the Council and the health service. I have investigated Mr X’s complaint about the Council.
6. I have not investigated actions of the health service.

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How I considered this complaint

7. I read Mr X’s complaint and spoke to him about it on the phone.
8. I considered information provided by Mr X and the Council.
9. I interviewed Council officers.
10. Mr X and the Council 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

Background information

11. 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.
12. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
13. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
14. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
15. 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.
16. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make 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.

17. 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.
18. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

19. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
20. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.
21. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
22. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.
23. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
24. The Council complaint policy says the Council should issue a stage one response within 10 working days. The policy says the stage two response should take 25 working days and the Council should signpost individuals to the Local Government and Social Care Ombudsman.

What happened

25. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
26. Mrs Y has a cognitive impairment and lived alone in a one-bedroom flat in an extra care housing scheme. Carers were always on site. The Council reviewed Mrs Y’s package of care in October 2022. The review noted Mrs Y was happy with the level of support.
27. In early January 2023 Mrs Y fell and injured her neck. The health service did not at first notice the seriousness of the injury. The health service admitted Mrs Y to hospital at the end of January 2023 and identified she had broken her neck.
28. The Council completed an assessment while Mrs Y was in hospital. This confirmed the hospital would discharge Mrs Y back to her flat with the same package of care.
29. Throughout February 2023, Mrs Y’s family repeatedly reported she needed to move to a residential placement. The care provider repeatedly told the Council Mrs Y needed more help to remain safe in her placement. The Council noted Mrs Y’s cognitive impairment and she often presented as confused.
30. The Council completed a visit to Mrs Y at the end of February 2023 to discuss the family’s concerns. The social worker asked Mrs Y some questions about her support with her family present. When the family left, Mrs Y responded differently. The social worker noted Mrs Y had capacity to make decisions about her care and support based on the discussion with Mrs Y when she was alone. Mrs Y’s family challenged this decision. Following her neck injury, the health service prescribed Mrs Y pain medication. The social worker noted Mrs Y was prescribed two pain relief doses per day, but her family were wanting her to take it four times per day. The social worker raised safeguarding concerns about Mrs Y’s medication.
31. Mrs Y suffered a medical emergency in March 2023. This involved a call to the emergency services. Mrs Y suffered serious injuries and was admitted to hospital. Mr X complained to the Council, the care provider and the health service after this event. He complained the Council had not provided Mrs Y with a residential placement when she needed one.
32. The Council triaged the safeguarding referral after this event, one month after the referral. The Council determined it needed to progress to a safeguarding investigation.
33. When Mrs Y was ready for discharge, the Council completed a capacity assessment for Mrs Y. The assessment determined she did not have capacity to make decisions about her care and support.
34. The Council responded to the stage one complaint in April 2023. The Council admitted one of the workers involved was a student, but a social worker supervised their actions. The Council apologised for not fully including the family in the assessments and not sending the assessments to the family.
35. Mr X asked the Council to escalate the complaint two days later. He said the Council had not assessed if Mrs Y needed residential care. Mr X said if he had seen the assessment the Council completed when Mrs Y was in hospital, he would have challenged it. Mr X added he had not heard anything about the safeguarding investigation.
36. The Council started the safeguarding investigation in June 2023. The Council confirmed the prescription allowed Mrs Y to have pain medication four times per day.
37. The Council responded to Mr X’s complaint at the end of June 2023. The Council acknowledged it had missed opportunities to discuss the concerns. The Council advised Mr X the safeguarding team would contact him.
38. The Council completed the safeguarding investigation in October 2023. The investigation decided the Council would not take further action.
39. Mr X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Mr X would like the Council to improve its services and pay financial compensation.
40. In response to my enquiries the Council accepted the delays in the safeguarding enquiry.
41. During interview with the Council, officers accepted the concerns noted in case notes and different responses to questions should have prompted a full mental capacity assessment.

My findings

Care and support

42. Mrs Y’s family were concerned about her safety. They repeatedly asked the Council for a reassessment and to consider a residential placement. The care provider asked several times for either more support or for a residential placement. The Council did not complete a reassessment following these concerns. This is fault and the Council did not have a full understanding of Mrs Y’s needs.
43. The family asked if Mrs Y was in a residential placement, would the events have occurred and would she have suffered the injuries. I cannot say if the Council had assessed Mrs Y and moved her to a residential setting, any of the following events and injuries would not have happened. However, the Council fault caused the family uncertainty.
44. The Council did meet with Mrs Y and her family. Mrs Y gave different responses to the same questions. The Council had previously noted Mrs Y’s cognitive impairment and often presented as confused. The Council accepted in interview this information, and the different responses provided on the social work visit, should have prompted a capacity assessment. Not assessing Mrs Y’s capacity is fault.
45. I cannot say Mrs Y did or did not have capacity at the time of the February 2023 visit. I can only comment on the process the Council followed. The Mental Capacity Act 2005 sets out the Council should have completed a mental capacity assessment if there were concerns for Mrs Y. The Council did not complete the assessment, despite the evidence showing concerns for Mrs Y’s capacity. This is fault.

Safeguarding

46. The social worker raised safeguarding concerns in February 2023. The Council did not assess the concern for a month. It decided the concern warranted a safeguarding investigation. It took three months to allocate a worker and a further four months to complete the investigation. This safeguarding matter took eight months to investigate. During this time Mrs Y was potentially at risk. The Council determined she was not at risk, but the family had to deal with the investigation for eight months. This is fault and distressed the family.
47. The Council accepted this fault and identified necessary service improvements as a result of Mr X’s complaint. It has changed the safeguarding procedure. The Council now ensures concerns are investigated immediately and managed by the same officer who receives the concerns.

Complaint handling

48. The Council policy referenced in paragraph 23 set out the stage one response was due in 10 working days. The Council response took 30 days. This is fault. I note the Council was waiting for a response from the care provider before issuing its response.
49. The Council should have issued its stage two response after 25 working days and signposted Mr X to the Ombudsman. The response took 72 days and did not signpost to the Ombudsman. This is fault.

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Agreed action

50. To remedy the outstanding injustice caused to Mr X and Mrs Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Mr X and Mrs Y for the fault identified in this case. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Mr X £300 as an acknowledgement of the time and trouble he has spent pursuing this complaint.
• Pay Mrs Y £500 for the uncertainty and distress the fault caused her and her family.
• Remind relevant staff of the importance of effective complaint handling.
• Remind relevant staff of the Council duties under the Care Act 2014 relating to assessments and safeguarding concerns.
• Remind relevant staff of the Council duties under the Mental Capacity Act 2005.
51. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

52. I have completed my investigation. I have found fault by the Council, which caused injustice to Mr X and Mrs Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman