Summary: Mr Y complained the Council failed to ensure Mr X’s care provider assigned regular drivers for his mobility car, delayed providing Mr X with medication, failed to ensure Mr X received appropriate personal care, delayed arranging a repair of Mr X’s toilet, allowed the care provider to slander him and delayed considering his complaint. There is some evidence Mr X missed out on access to the community, of missed medication, of inadequate records of bathing and of delay responding to the complaint. An apology, payment to Mr X and Mr Y, alongside procedural remedies, is satisfactory remedy.

The complaint

1. The complainant, Mr X, is represented by his brother, Mr Y. Mr Y complained the care provider, acting on behalf of the Council:
• failed to provide Mr X with carers that could drive his mobility car, despite promising to do so;
• delayed providing Mr X with medication or missed medication doses;
• failed to ensure Mr X received appropriate personal care;
• slandered Mr Y and his mother;
• failed to pay for a damaged television; and
• failed to act to ensure a broken toilet was fixed.
2. Mr Y also complained the Council delayed considering his complaint and failed to keep him up-to-date with the reasons for the delay.
3. Mr Y says the Council’s actions have caused him and his family stress and frustration and Mr X has missed out on provision.

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The Ombudsman’s role and powers

4. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. 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)
7. 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)
8. 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

9. Some of the events complained of took place more than 12 months before Mr X complained to the Ombudsman. However, Mr X does not have capacity to bring the complaint on his own and therefore the 12 month restriction does not apply.
10. I have investigated Mr X’s concerns about the provision of care from the care provider, the delay repairing the toilet and the delay considering Mr Y’s complaint. I have not investigated Mr X’s concern about the care provider not compensating him for the damage to his television. That is because the care provider disputes liability for that damage and only the courts can determine liability.

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How I considered this complaint

11. As part of the investigation, I have:
• considered the complaint and Mr Y's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
12. Mr Y and the organisation 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 legislation

13. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
14. 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.
15. 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.
16. 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.

The care provider’s medication policy

17. This says every client must be presumed to have the mental capacity to consent or refuse treatment or medication unless they are unable to take in and retain information about the medication, understand the information or weigh up the information in arriving at a decision. It says the assessment of the client is a matter for the registered manager and management team.
18. It says where clients can give or withhold consent to medication or treatment medication should not be administered without their agreement. It says if the client is suspected of not being capable to make an informed decision the manager should seek guidance and advice from the GP, consultant or social worker.
19. It says regular attempts should be made to encourage the client to take their medication.
20. If staff become aware of a missed dose of medication they must:
• notify the registered manager or manager on call;
• complete a medication incident form immediately; and
• the manager will complete a fact find to find out the circumstances.
21. It acknowledges the client has the right to refuse medication. If they do the care provider should explain the reason the medication has been prescribed and if they still refuse to take the medication it should be recorded in the client's notes and the client's GP and manager should be informed immediately.
22. It also says in the event of refusal of medications staff must:
• check the client’s medication form in their support plan to see if there are any guidelines about refusing medication;
• record all details and the reasons for refusal;
• if there is no information on file notify the GP and if the GP is not available contact the pharmacy, the local hospital or NHS 111;
• monitor the condition of the client and if they display symptoms that may be connected with not taking the medication contact the GP, community nurse, psychiatry department or drug information department at the local hospital;
• if refusing medication is a likely occurrence or becomes a regular occurrence guidelines should be drawn up in consultation with appropriate medical health professionals.

What happened

23. Mr X has learning disabilities, an acquired brain injury and is epileptic. Mr X was living in supported accommodation arranged by the Council with a care package in place from JLKare (the care provider).
24. During 2023 Mr Y raised various concerns about the quality of care provided by the care provider. That included concerns about inadequate personal care, missed medication and failure to provide drivers for Mr X’s mobility vehicle.
25. In April 2023 the care provider asked for a mental capacity assessment around Mr X’s capacity to refuse medication. That mental capacity assessment took place in October 2023. The mental capacity assessment decided Mr X had capacity to refuse medication.
26. The care provider remained in place until October 2023 when Mr X moved to a new care provider.
27. On 12 October 2023 Mr Y complained to the Council. The Council acknowledged the complaint on 28 November and apologised for the delay. The Council said it would appoint an external investigating officer. The investigating officer then produced a report in March 2024.
28. On 30 July Mr Y chased the Council about the outcome of his complaint. The Council apologised for the delay and said there had been a technical glitch. The Council said Mr Y should receive a formal response within two weeks.
29. On 27 November the Council sent Mr Y a copy of the complaint report and said it accepted the findings. The Council said in line with the recommendations it:
• would ask the care provider to review its training and instruction to carers for missed medication protocols;
• had considered the guidance given to social workers about mental capacity assessments and was satisfied with the guidance available to staff;
• would ask the property management company to review and clarify responsibility for minor property repairs; and
• would ask the property management company to share a copy of Mr X’s tenancy agreement with his appointee.

Analysis

30. Mr Y says the care provider the Council identified failed to provide regular drivers for Mr X’s mobility car as it had promised to do. The evidence I have seen satisfies me the care provider recruited several different carers for Mr X who could drive. It appears issues arose with some of those carers. In some cases the carer refused to work with Mr X due to alleged inappropriate behaviour and in other cases Mr X or his family asked the care provider not to use that carer any more. Given the evidence I have seen I could not say the care provider failed to assign staff to drive Mr X’s car.
31. However, having considered the daily records for a selection of months in 2023 there are relatively few occasions on which carers used Mr X’s car to take him out into the community. On some occasions carers took Mr X out but took him out on the bus rather than in the car. The documentary records do not confirm why that was the case. Equally though, there were some days where Mr X made clear he did not want to go out or was too unwell to go out. It is clear though the care provider did not use the mobility car all the time.
32. I have not found any evidence to suggest failing to use the mobility car meant Mr X was left on his own in the flat. That is because not using the mobility car did not affect the amount of hours support Mr X received. I am also satisfied on some occasions Mr X accessed the community with carers using the bus rather than the car. Nevertheless, the intent in buying the mobility car was for Mr X to access more activities in the community. Given the records show relatively few occasions on which Mr X accessed the community using the mobility car given he was receiving support every day I consider it likely, on the balance of probability, he missed out on some activities and his family had to take him to some appointments. That is fault.
33. Mr X says the care provider delayed providing him with medication. I have considered the medication charts the Council provided for a three month period. Those medication charts show, except for one occasion, medication provided to Mr X in accordance with his prescriptions. However, there was one time when Mr X refused medication and the care provider did not report that to the GP until the following day. That is a matter the pharmacist raised a safeguarding concern about. There was a further time when a carer did not turn up and the missed medication dose was identified by Mr X’s mother and given later in the day.
34. I set out in paragraphs 17-22 what the care provider’s medication policy says about what should happen. It is clear the care provider did not follow that policy when Mr X refused the medication given the care provider did not report the missed medication until the following day or take any advice from the GP or NHS 111. Failure to do that is fault. I understand Mr Y’s concern about that given it could have had serious results. Thankfully it did not in this case. I therefore consider Mr X’s injustice is limited to his frustration. For any procedural remedy I am satisfied the Council has addressed that by asking the care provider to review its training and instruction to carers about missed medication protocols.
35. I am also concerned though there were delays carrying out a mental capacity assessment. Despite the fact the evidence shows the care provider asked for a mental capacity assessment in April 2023 there is no evidence an assessment took place until October 2023. That delay is fault. It seems to me the delay occurred because the Council believed the care provider should sort out the mental capacity assessment while the care provider believed that was the Council’s responsibility.
36. I am satisfied as part of the remedy for the complaint the Council reviewed the process for securing a mental capacity act assessment to prevent delays in future. The Council was satisfied, following that review, the process it has in place is satisfactory. While that may be the case, it is clear in this case there was, nevertheless, a failure to ensure the mental capacity assessment took place. As part of the remedy for this part of the complaint I therefore recommended the Council send a reminder to officers about the process to follow if the need for a mental capacity assessment is identified by either Council officers or care providers. The Council has agreed to my recommendation.
37. Mr Y says the Council failed to ensure he received appropriate personal care. Mr Y says as a result Mr X regularly did not receive a bath/shower or a shave and was wearing dirty clothing.
38. Having considered the daily records from the selection of months I have considered I am satisfied on each day the carers recorded the personal care given to Mr X. That included shaving. It is also clear from some of the documentary records though there were times when Mr X refused to take a bath or shower or to change his clothes. As the Council noted in its complaint response though, the documentary records did not always record whether bathing or showering was offered to Mr X or whether carers provided him with any encouragement to do so. Given the care records do not consistently record those details I cannot say the care provider tried to encourage Mr X to accept a bath or shower every week. That is fault.
39. The daily care records I have seen show regular cleaning and tidying of Mr X’s living space. I therefore could not say that had not taken place.
40. Those same daily care records also show the food and drinks offered to Mr X throughout the day. There is however, little information about what food and drink carers left Mr X with at the end of each shift. I therefore cannot reach a safe conclusion about whether the care provider gave Mr X enough food and drink for those periods where the carers were not in place. Failure to record that information is fault. That leaves Mr Y with some uncertainty about whether Mr X had satisfactory access to food and drink when carers were not present.
41. Mr Y has also raised a concern about the Council failing to act on the care provider’s failure to keep proper records. Having considered the daily records I am satisfied those records are detailed. However, in some areas those records do not provide enough information such as around when a bath/shower was offered or what food and drink carers left Mr X with when they ended their shift. As I said earlier, I am satisfied that leaves Mr Y with some uncertainty about the level of care provided to Mr X. I do not make any service recommendation around this given the care provider no longer provides care to Mr X.
42. Mr Y says the care provider, acting on behalf of the Council, slandered him and his mother by raising inaccurate concerns about handling of Mr X’s finances. Mr Y also says the care provider suggested he had intimidated a support worker. Mr Y says neither of those concerns were accurate.
43. Having considered the documentary evidence I am satisfied the care provider explained why it had raised concerns about how some of Mr X’s money had been spent. I cannot criticise the care provider for contacting the Council if it had concerns. That is because the care provider’s responsibility was to Mr X in this case, rather than his family. I recognise though by this point the relationship between the care provider and Mr X’s family had broken down. I could not, however, criticise the care provider for raising concerns.
44. Similarly, for the concern that Mr Y intimidated a member of staff, I cannot criticise the care provider for raising that when the staff member reported concerns. That is not fault.
45. Mr X says the Council failed to act to ensure the care provider repaired his broken toilet. The independent investigating officer partially upheld the complaint as the toilet had not been repaired by the point at which the complaint report was completed. However, it is also clear there was some confusion about whether Mr X, as the tenant, was responsible for the repair or whether that was the responsibility of the property management company.
46. I would have expected some queries to have been made about that at the time and for it to have been clarified with Mr X. I have seen no evidence of that. That is fault. I am satisfied that meant Mr X had a broken toilet for longer than he should have. I am satisfied as part of the remedy for the complaint the Council has already agreed to ensure the property management company clarifies the responsibility for minor property repairs. I therefore do not make any further recommendation for a procedural remedy.
47. Mr Y says the Council delayed considering his complaint and failed to keep him up-to-date with the reasons for delay. It is clear there was significant delay in the Council responding to the complaint. Mr Y put in the complaint in October 2023. However, despite the investigating officer completing the complaint investigation report by March 2024 the Council did not send Mr Y the resolution letter until November 2024. That is a significant delay and is fault. I have also seen no evidence the Council kept Mr Y up-to-date with what was happening. That is also fault. As part of the remedy for that I recommended the Council investigate what caused the delay between March 2024 and November 2024 and put in place a process to ensure the same issues do not occur again. The Council has agreed to my recommendation.
48. Mr Y also says when responding to the complaint the Council suggested Mr X was the problem rather than the care provider. I believe Mr Y may be referring here to reference in the complaint investigation report to Mr X refusing care on occasion, refusing medication and on occasion refusing to go out of the property to access the community. It is not fault for the investigating officer to include that information in the complaint report as it is factual information and is supported by the documentary records which I have seen. That does not amount to the Council blaming Mr X. Rather, the report provides that as context to explain why, sometimes, lack of access to activities or personal care was due to Mr X’s choices rather than any fault by the Council or care provider.
49. I now have to consider what remedy is suitable to reflect the injustice caused by the fault I have identified in this statement. I have set out the procedural remedies I consider suitable. For Mr X, I am satisfied because of the fault I have identified in this statement he has likely missed out on some activities in the community and has experienced some frustration. I consider a reasonable outcome for that would be for the Council to apologise to Mr X and pay him £400. The Council has agreed to that recommendation.
50. I consider Mr Y has suffered a separate injustice as he has experienced his own frustration and uncertainty, particularly around how the Council dealt with the complaint. I consider a reasonable outcome would be for the Council to apologise to Mr Y and pay him £300. The Council has agreed to that recommendation.

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Action

51. Within one month of my decision the Council should:
• apologise to Mr X and Mr Y for the uncertainty and frustration they experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr X £400;
• pay Mr Y £300;
• send a reminder to officers about the process to follow if the need for a mental capacity assessment is identified by either Council officers or care providers;
• find out why the reasons for the delay addressing the complaint between March 2024 and November 2024 and put in place a process to ensure the same issues do not occur again.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I find fault causing injustice. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman