Summary: Mrs X complains on behalf of Miss Y that the Council did not deal properly with Miss Y’s adult social care. The Council is not at fault.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains on behalf of her mother, Miss Y, that the Council failed to deal properly with Miss Y’s adult social care because it:

• Didn’t complete a mental capacity assessment (MCA) properly as it was done while Miss Y was drunk.
• Didn’t provide care properly – eg: Miss Y was left in soiled bedclothes and alcohol was provided covertly to her by carers.

2. Mrs X says Miss Y suffered poor care and died early as a result.

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The Ombudsman’s role and powers

3. 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)
4. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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

7. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
8. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law, guidance and policies

Assessment

9. 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.
10. 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.

Care Plan

11. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). 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.

Reviews

12. 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.

Mental Capacity Act

13. 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.

Mental capacity assessment

14. 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.

15. 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.
16. 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?

17. 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.

What happened?

18. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
19. Miss Y was resident in a care home in 2024. The Council completed a Mental Capacity Assessment in June 2024, which concluded that Miss Y had capacity to decide about her care and support needs.
20. A care plan was formulated for Miss Y. Following this, at the end of June Miss Y moved to live at her own home with a package of care provided by the Care Provider. The Care Provider provided domiciliary care services on behalf of the Council.
21. The Council visited Miss Y to carry out a risk assessment in early July 2024.
22. In August 2024 Mrs X was in contact with an Occupational Therapist (OT), who made recommendations for equipment for Miss Y.
23. In mid-August the Council met with the District Nursing team about Miss Y and her personal care.
24. Towards the end of August 2024 the Council visited Miss Y at home and completed a review of her care plan. It liaised with the Care Provider and Miss Y’s care plan was amended to include additional support.
25. Several days after this, a friend of Miss Y contacted the Council outlining concerns about Miss Y’s welfare.
26. The Council transferred Miss Y’s case to its review team in early September 2024.
27. Mrs X expressed concerns to an OT about Miss Y needing more care. The OT visited Miss Y and assessed her capacity.
28. The OT informed the Council of the results the next day and that they and the family did not feel Miss Y’s care package was suitable to meet her needs. They felt the situation was deteriorating and requested a reassessment.
29. The Council reallocated Miss Y’s case to a new social worker. The Council visited Miss Y the following day to complete a further MCA and determined that Miss Y had capacity to make decisions regarding her care and support needs.
30. The social worker liaised again with the district nursing team about Miss Y.
31. The Council visited Miss Y again in mid-September 2024 along with the care provider, Dale Care. Miss Y’s care plan was updated with additional support.
32. Miss Y passed away in September 2024.
33. Mrs X complained to the Council in October about the mental capacity assessment that led to Miss Y returning home, and her subsequent care.
34. The Council did not uphold Mrs X’s complaint.

Analysis

Mental Capacity Assessment in June 2024

35. I have reviewed the record of the MCA undertaken by the Council on 25 June 2024. This MCA is recorded as regarding Miss Y’s capacity to determine her “accommodation, care and support including risks re alcohol and diabetes”. The MCA records that a member of staff at the care home was present throughout the assessment.
36. The MCA records that Miss Y had capacity to make these decisions.
37. Mrs X says that the MCA was completed while Miss Y was under the influence of alcohol and was therefore flawed.
38. There is no direct evidence to show whether or not Miss Y had been drinking or was under the influence of alcohol, or to what extent.
39. The MCA record includes questions and answers from a conversation between the assessor and Miss Y.
40. The MCA record demonstrates that the assessor considered on the basis of that conversation that Miss Y understood information about her care and support needs, was able to retain information concerning those, was able to use and consider that information and was able to communicate her decision.
41. On the balance of probabilities, The Council properly completed the MCA. This is not fault by the Council.

Miss Y’s care at home

42. I have reviewed a statement by Mrs X, care assessment, care plans and care notes for Miss Y and detailed daily care records from the Care Provider. I have also seen photographs from Mrs X.
43. After Miss Y had been confirmed to have capacity to determine her accommodation and care and support, the Council had no power to prevent her returning home.
44. Miss Y’s case notes show the Council completed an assessment of her care needs in June and discussed with her a proposed package of care to be delivered following her return home. Case notes show Miss Y agreed to this care package.
45. Miss Y’s package of care began to be delivered from July 2024.
46. The Council completed a risk assessment for Miss Y within 10 days of her return home. Miss Y stated she was happy with the carers and the care delivered.
47. Care Provider records indicate Miss Y often refused personal care. Care Provider notes indicate care staff acted according to care plan in general, but Miss Y frequently refused some elements of care.
48. The Council completed a review towards the end of August 2024. This found that Miss Y continued to have eligible needs, which were met with the care at home package. Miss Y’s care plan was updated with further tasks for carers including emptying Miss Y’s commode daily.
49. Concerns were raised by a friend shortly after the review but were believed to have been mostly addressed by the recent updates to Miss Y’s care plan. Miss Y’s friend had said she would speak with Miss Y’s family about making private arrangements for helping Miss Y with housework.
50. Following concerns raised by the OT, the Council reassessed Miss Y’s needs and completed another Mental Capacity Assessment for her in her home. Miss Y was found to have capacity to make decisions regarding her care and support needs.
51. The Council updated Miss Y’s care plan in September 2024.
52. Notes from the district nursing team indicate that they did notice and flag potential problems relating to the state of Miss Y’s home and her commode on three occasions. These were infrequent and did not form any consistent pattern.
53. Care Provider records show that Miss Y agreed to food but did not eat it and promised to eat it later. The district nursing team told the Care Provider to ensure care workers made food for Miss Y at every visit and leave it for her whether she ate it or not. Care Provider records show that they did this.
54. Case notes record that District Nurses feel Miss Y was probably self neglecting.
55. Miss Y’s case notes show:
• The Council was responsive to issues it became aware of and there was significant communication between Miss Y’s social worker and both Dale Care/the district nursing team.
• The Council reviewed Miss Y’s care provision on multiple occasions.
• Increases to Miss Y’s care provision was made, including additional tasks to empty Miss Y’s commode daily were completed as a result.
56. I have reviewed the Care Provider’s daily notes in detail and cross referenced these against Miss Y’s case notes from the Council and her care and support plan. I found that:
• Miss Y’s care and support plan said she would need support to have a full body wash each day and needs encouragement to complete this.
• The daily plans included Miss Y’s preference to have a wash each evening.
• The daily Care Provider notes record that Miss Y declined the provision of personal care on the overwhelming majority of evening visits.
• Care provider notes show that a full body wash was provided to Miss Y the day after a home visit by her social worker on 17 September where it was agreed she would allow carers to deliver personal care.
• Records from the Care Provider first record Miss Y’s commode being emptied on 11 September, two weeks after the changes to Miss Y’s care plan to include this. However, there are no records showing any specific problems with the commode not being emptied in the intervening period.
57. After Miss Y passed away, a post mortem report indicated that the cause of her death was acute chronic liver failure due to alcoholic liver disease, due to chronic alcohol abuse.
58. On the balance of probabilities;
• The Care Provider attended required calls and met most of Miss Y’s care needs, where Miss Y agreed to care being delivered.
• Miss Y self neglected by refusing personal care and meals, when she had the capacity to do so. This is not fault by the Council.

Provision of Alcohol

59. Mrs X says the carers had provided Miss Y with alcohol.
60. The care reassessment completed at the end of August 2024 states, “Since returning home there have been no concerns reported re [Miss Y] drinking alcohol. Care staff complete [Miss Y’s] shopping and [Miss Y] has not asked care staff to purchase any alcohol.”
61. However, I have seen a receipt for alcohol dated mid September 2024 which indicates this may have happened later. On the balance of probabilities, the Care Provider purchased alcohol for Miss Y in September 2024.
62. Miss Y’s care and support plan did not explicitly preclude alcohol being purchased as part of her shopping. This is not fault by the Council.
63. The three week time period whilst Miss Y was at home in September was insufficient to have significantly contributed to the chronic liver failure which was the cause of her death.

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Decision

64. I find no fault causing injustice.

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Investigator's decision on behalf of the Ombudsman