Summary: Mr X complained the Council failed to consider his mother’s religious needs when it arranged her care, causing distress. The Council was at fault causing injustice to Mr X and his mother. It has agreed to apologise, carry out a fresh assessment and make service improvements to prevent reoccurrence of the fault. Mr X also complained that the Council had wrongly made best interests decisions regarding his mother’s care without consulting him and said the Council made unfounded assumptions that his father had been abusing his mother. The evidence does not support this and on these matters we do not find fault with the Council.

The complaint

1. Mr X complained that the Council:
1. made an unfounded assumption that his father, Mr Y, had been abusive to his mother, Mrs Y;
2. failed to consult Mr X during best interests decisions the Council made regarding his mother, Mrs Y’s, care; and
3. failed to consider his mother’s religious beliefs when arranging her care.
2. Mr X says the Council’s actions caused his father and mother distress. He wants the Council to waive the charges for his mother’s care in the care home.

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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. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure has occurred. (Local Government Act 1974, sections 26(1), as amended)
5. 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)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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)

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How I considered this complaint

8. I considered the information provided by Mr X and the Council.
9. I considered the relevant law and guidance as set out below.
10. I considered our Guidance on Remedies.
11. I considered comments made by Mr X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

Adult social care guidance

12. Chapter 1 of the Care and Support Statutory Guidance 2023 sets out local authorities’ duties to promote wellbeing and the importance of helping people achieve the outcomes that matter to them in life.
13. The guidance says, “the person’s views and wishes are critical to a person-centred system… Where particular views, feelings or beliefs (including religious beliefs) impact on the choices that a person may wish to make about their care, these should be taken into account. This is especially important where a person has expressed views in the past, but no longer has capacity to make decisions themselves.”

Mental capacity assessments

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. 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?

16. 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.
17. 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.

Best interests decision making

18. 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.
19. 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.

Human rights

20. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes but is not limited to freedom of religion. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
21. Article 9 of the Human Rights Act protects people’s right to freedom of thought, belief and religion.
22. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

What happened

23. In June 2021 the Council carried out an assessment of Mrs Y’s care needs. Mr X’s father, Mr Y, was present with Mrs Y at the assessment.
24. In this needs assessment, the Council recorded that Mrs Y’s dementia was advancing and Mr Y was finding his caring role challenging.
25. The assessor wrote down that Mrs Y’s previous medication had made her more distressed and her new medication meant this was not as difficult as before. However her needs were likely still too challenging for Mrs Y’s husband to be able to manage caring for her alone.
26. During this assessment, the Council offered Mr Y support as a carer which he declined. Mr Y also declined a carers assessment.
27. The Council recommended in its needs assessment that due to Mrs Y’s advancing condition, she should be placed urgently into a care home.
28. During this needs assessment, Mrs Y told the Council that her religion was important to her and she wished to attend meetings at her local place of worship. However this was not listed as a goal on her needs assessment and therefore no notes were made on how this goal could be met. The Council did more generally note that Mrs Y required full support to access the community safely.
29. After this needs assessment the Council decided to carry out a mental capacity assessment.
30. The Council’s mental capacity assessment consulted a range of people involved closely in Mrs Y’s life including family and professionals. This assessment concluded Mrs Y lacked the mental capacity to make decisions regarding her care needs and accommodation.
31. A best interests meeting was held which considered whether Mrs Y should remain at home with a care package or go into a care home. The best interests meeting concluded that a care package in the community would still leave Mrs Y at risk as she often wandered out of the house and 24 hour care at home was not cost effective.
32. The Council decided that it was in Mrs Y’s best interests overall to go into a permanent placement in a care home. None of the people consulted as part of the decision, including Mr Y, disagreed with the decision.
33. At no stage during the needs assessment, mental capacity assessment or best interests decision did Mr Y or Mrs Y ask for their son, Mr X, to be consulted about his mother’s care.
34. On 2 July 2021 Mrs Y went into the care home and remains there to date.
35. A few days after Mrs Y went into the care home, Mr Y changed his mind regarding her being in the care home and wanted her to return home with care support.
36. Mr X’s father was advised by his then solicitor to legally challenge the mental capacity assessment carried out for Mrs Y, if he did not agree that she lacked capacity to make decisions about her accommodation, which he did.
37. A specialist care advocate spoke to Mrs Y to find out more about her wishes since she was moved into the care home. The advocate said Mrs Y wished to return home with her husband.
38. Another needs assessment was carried out for Mrs Y in light of these developments. This assessment showed that in the initial 5-6 weeks of Mrs Y being in the care home she had shown signs of distress at being apart from her husband. However in response to this, the care home began weekday visits where Mr Y provided essential care to Mrs Y for 3-4 hours at the same time each weekday. The care home said these longer visits had significantly improved Mrs Y’s wellbeing.
39. The needs assessment also showed that the care home said Mrs Y was now settling well and was taking part in services through her local place of worship through online video meetings among other activities.
40. Mr Y’s account in the needs assessment differed slightly as he said his wife was often upset when it was time for him to leave the care home and he still wished for her to live at home.
41. Mr Y said he had learnt a lot about supporting someone with dementia from observing staff at the care home. As a result, the social worker began to explore options with Mr Y for his wife to potentially return home with a care package. However not long after this, Mr Y died.
42. Mr X made a formal complaint in May 2022 on his father and mother’s behalf, to the Council regarding the Council’s decision to place his mother into residential care. He said the care home was not meeting her religious needs and the Council’s actions had caused his father distress. The Council sent a holding response saying it would respond soon.
43. A month later the Court of Protection noted the Council and all other parties regarded Mrs Y’s care home as an appropriate placement to meet all her needs except her religious needs. It said Mrs Y would remain in the care home for now but the Council would seek alternative care home placements for her that could better meet the requirements of her faith.
44. The Council took no further steps to search for an alternative, more suitable placement. It took the Council five months to respond to Mr X’s complaint. The Council’s late response said it did not uphold Mr X’s complaints. Regarding Mrs Y’s religious needs it said Mr X should contact the care home directly to see how best to support his mother.
45. The Council told us the reason for the delay in responding to Mr X’s complaint was due to a lack of staff capacity.

My findings

Complaint 1A) Council made unfounded assumption that Mr X’s father had been abusive to his mother

46. I cannot disclose all details of this case due to data protection and privacy law. However I am satisfied from the evidence I have seen that the Council followed the procedures we would expect in relation to Mrs Y.
47. The records show the Council found Mrs Y’s condition was advancing and Mr Y was finding his caring role challenging and likely required support in his own right. There is no evidence the Council made any assumptions that Mr Y’s father was abusive to Mrs Y, as evidenced by the fact that Mr Y was given permission to make daily 3-4 hour caring visits to Mrs Y in the care home. The Council was not at fault.

Complaint 1B) Council failed to consult Mr X during best interests decisions the Council made regarding his mother’s care

48. The Council consulted a mixture of family and professionals who were close to Mrs Y in the best interests decision making as expected by the guidance.
49. The Council weighed up the less restrictive option of care at home, against the option of Mrs Y going into a care home. Mr X’s father and mother did not request Mr X’s involvement in this process.
50. The records show that the processes were followed as we would expect. The Council was not at fault.

Complaint 1C) Council failed to consider Mrs Y’s religious needs

51. The Council recorded in its needs assessments that Mrs Y’s religion was important to her. However the needs assessments did not say in the sections on goals and how they will be met, that one of the goals should be Mrs Y engaging in her religion.
52. Statutory guidance expects councils to have regard to a person’s beliefs when promoting someone’s wellbeing as part of determining their care and support needs. While that doesn’t mean the Council had to meet all Mrs Y’s needs in this respect, it should have explained its decision making concerning how to respond to this important, identified need.
53. When the Council omitted this important, relevant consideration from Mrs Y’s needs assessments it failed to have due regard to Article 9 of the Human Rights Act and the Care and Support Statutory Guidance. The Council was at fault.
54. A year after the June 2021 needs assessment, the Court of Protection noted that the Council and other parties agreed Mrs Y needed to be moved to a more suitable care home. Therefore I’m satisfied on the balance of probabilities that had the Council acted without fault in its needs assessment, this need would have been identified and been acted upon significantly earlier.
55. While acknowledging that it may have been difficult to find a more suitable care home to meet Mrs Y’s religious needs, this fault probably caused at least several months of delay in the Council finding a more suitable placement. The fault also caused uncertainty for Mrs Y regarding whether a care placement more suited to her religious needs may have been available sooner were it not for the fault.
56. The Council then did not take sufficient action to try and make Mrs Y’s current care home more suited to her religious needs following the court’s decision that Mrs Y’s religious needs were not being met.
57. Following the court’s decision, we would expect the Council to promptly conduct a new needs assessment which considered Mrs Y’s religious needs, consulted relevant people and made relevant enquiries.
58. Instead it asked Mr X to outline what additional spiritual needs his mother had and took no further action once it received no response. The Council also told Mr X in its complaint response that he should get in touch with the care home directly regarding how his mother’s religious needs could be met in the meantime.
59. The Council arranged the care placement and remained responsible that the care placement met Mrs Y’s needs. The Council was therefore wrong to advise Mr X to carry out the work of making the placement more suitable himself. The Council was at fault.
60. This fault has contributed further to the delay in Mrs Y being in a care placement more suited to her religious needs.

Delay in responding to Mr X’s complaint

61. The Council took five months to respond to Mr X’s complaint. This was due to a lack of staff capacity. This amounts to service failure by the Council and put Mr X to avoidable frustration in waiting a long time for the Council’s response.

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Agreed action

62. Within one month of the date of the final decision, the Council has agreed to:
1. apologise to Mr X and Mrs Y for the uncertainty caused by the Council failing to properly consider Mrs Y’s religious needs at the earliest opportunity when planning and arranging her care;
2. pay Mr X £100 to reflect the avoidable frustration caused by the Council’s significant delay in responding to his complaint;
3. pay Mrs Y £200 to reflect the avoidable uncertainty she was caused about whether a care placement better suited to her religious needs may have been available sooner were it not for the Council’s fault; and
4. carry out a new needs assessment for Mrs Y which meaningfully takes into account her religious needs and sets out how they can be better met in her current care home. It should also set out the steps the Council has taken and will take to find Mrs Y an alternative care placement.
63. Within three months of the date of the final decision, the Council has agreed to demonstrate that it has:
1. reminded staff in its adult social care department that any goals a person needing care has around expressing their faith should be clearly marked as a goal, with details of how the goal will be met, in their needs assessments;
2. circulated to staff in its adult social care department the CQC’s May 2022 information guides on ‘Culturally Appropriate Care’; and
3. taken steps to ensure that Mrs Y’s needs around her faith are now being better met in her current care home while it searches for an alternative placement.
64. The Council should provide us with evidence it has complied with the above actions.

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Final decision

65. I have completed my investigation. I have found fault leading to injustice and the Council has agreed to apologise, pay a financial remedy and carry out several service improvements.

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Investigator's decision on behalf of the Ombudsman