Summary: Mrs X complained about contact restrictions between her relative Ms Y and Ms Y’s mother Mrs Z which the Council continued to impose after Ms Y left a care home. The Council was at fault for failing to clarify the nature of the restrictions and the actions needed to remove them. This caused Mrs X and Mrs Z frustration and uncertainty. The Council has agreed to apologise and take action to prevent recurrence of the fault.

The complaint

1. Mrs X complained a Council commissioned care home imposed unfair contact restrictions between her relative Ms Y and Ms Y’s mother Mrs Z which the Council failed to challenge, and continued to impose when Ms Y moved to live with Mrs X. Mrs X says these restrictions caused her distress and caused her mother and Ms Y significant distress and affected Ms Y’s mental health.
2. Mrs X also complained about the quality of care provided to Ms Y at the Council commissioned care home which she says impacted Ms Y’s mental health and well-being.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:
• any fault has not caused injustice to the person who complained, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.
5. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
6. 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). I have considered what happened since 2020 as it appears Mrs Y was not made aware the restrictions were guidelines until late 2022 and there were significant delays in responding to the complaint.
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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What I have not investigated

8. Mrs X complained about the quality of care provided to Ms Y at the Council commissioned care home. I have decided not to investigate this issue. Ms Y left the care home in April 2020 so it would be difficult to establish now what any injustice was from the alleged failings. Mrs X could have complained to us sooner if she had concerns about the care home. There have been significant staff changes at the care home since Ms Y left including a change in the manager and Area manager which would also make it difficult to establish what happened at the time.
9. In addition, Mrs X raised her concerns with the Care Quality Commission (CQC) who is the statutory regulator of care services who inspected the care home in late 2019, 2021 and 2023 and took action to address any concerns about the care provider. So, it is unlikely I could achieve a worthwhile outcome or anything more than that already achieved by CQC.

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How I considered this complaint

10. I have considered the information provided by Mrs X and discussed the complaint with her. I have considered the Council’s response to my enquiries and the relevant law and guidance.
11. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

12. 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.
13. 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.
14. 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.
15. 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.

What happened

16. Ms Y had lived at the care home since 2005. She has a learning disability and can display challenging behaviours. In March 2020 Ms Y’s social worker started a needs assessment with a view to Ms Y moving to a different care home. The notes record the social worker had concerns that the relationship between Ms Y’s family and the care home had broken down and there were historic concerns about the quality of care. The social worker arranged for Ms Y to visit alternative placements. However, in late March, the Government introduced restrictions due to the COVID-19 pandemic. This included restrictions on care home visits. The planned visits were therefore postponed. COVID-19 restrictions also limited Ms Y’s ability to take part in her regular programme of activities.
17. Mrs X requested that Ms Y live with her and her husband, Mr X, during the pandemic. The Council agreed this would be in Ms Y’s best interests in April 2020. The Council’s case notes record the social worker spoke with Mr X who agreed that Ms Y’s telephone calls with her mother Mrs Z should be kept to four days a week and monitored for any cause of anxiety for Ms Y which would need to be reviewed accordingly. The notes record the social worker also spoke with Mrs Z. They noted Mrs Z understood the conditions and would respect them.
18. The social worker spoke to Mr X every week and he reported Ms Y was doing well. In early June the social worker noted Mr X was giving thought to arranging for Ms Y to see Mrs Z. As COVID-19 restrictions were being relaxed he was looking to arrange a once a week visit.
19. In September 2020, the Council carried out a needs assessment to explore options for meeting Ms Y’s long term care needs.
20. The assessment noted that when living at the care home, Ms Y displayed behaviours that challenged mostly around tea time. The care home felt Ms Y became anxious when expecting a call from Mrs Z, who would ask about the activities she undertook each day. The assessment noted an assessment by a positive behaviour specialist indicated Ms Y’s outbursts were triggered by being expected to be asked to wash up her plate, hence her anxiety was building. The assessment noted historic safeguarding concerns were raised by the care provider regarding the risk to Ms Y’s mental health due to telephone calls from the family and the amount of activities the family expected her to undertake.
21. The assessment said “in 2014 restrictions were put in place to limit the amount of time Ms Y spent on holidays with her mum, how many activities she did per day and how telephone calls were managed by the care provider. Due to change in management [at the care home] several times since 2014 these restrictions were not adhered to”. It noted that Ms Y was not able to recognise what made her mental health worse. It said she needed support to help manage her emotional well-being. This included how and when she had telephone contact with family and that she was kept active but did not have too much to do during the week. The assessment noted Ms Y saw Mrs Z half a day once a week currently due to COVID-19 restrictions and that telephone calls were monitored by Mr X to ensure Ms Y did not become too overwhelmed.
22. In January 2021 the Council allocated Ms Y a different social worker, social worker 2. In April 2021 they reassessed Ms Y’s care needs as Mr and Mrs X were going through the process to become shared lives carers, whereby they would formally support Ms Y to live with them in their own home. The assessment said Ms Y did not have capacity to take part in the needs assessment due to her learning disability and mental health. This meant her capacity to understand and process information was significantly impaired.
23. The support plan noted that Ms Y currently visited Mrs Z once a week and maintained contact via the phone. It stated that “at a recent review undertaken by the Community Learning Disability Team [CLDT - an NHS body which also supported Ms Y] contact with mum was discussed and detailed in their letter and will be subject to review by the team”. The letter from the CLDT meeting referred to calls previously being restricted to three thirty minute calls a week and a half day visit over the weekend and that it had agreed calls would now be unlimited but monitored to see what the impact was on Ms Y.
24. In September 2022 the Council was invited to a meeting arranged by the CLDT at the family’s request to discuss restrictions on access to Ms Y by Mrs Z. Social worker 2, who had not been allocated to Ms Y since October 2021, agreed to attend. Social worker 2 understood the meeting was a review but realised when they attended it was meant to be a best interest meeting to discuss lifting restrictions imposed regarding contact between Ms Y and Mrs Z. However no mental capacity assessments had been carried out and there was no decision maker. An NHS representative suggested social worker 2 reviewed the documentation regarding contact with Mrs Z.
25. Following the meeting the Council wrote to Mrs X. It said that when restrictions were first discussed they were recommendations for the family and care home as discussed in a meeting with the CLDT. The meeting had recommended that Mrs Z did not call daily or continue to question Ms Y about the activities she had undertaken as this caused her anxiety leading to disruptive behaviour. The social worker in post at the time had observed Ms Y becoming anxious when waiting for a call and displayed challenging behaviour after the call. They said an informal agreement, rather than a best interests’ decision was made. When Ms Y went to live with Mr and Mrs X the Council felt the recommendations should still stand in order for Ms Y to settle in her new environment. It said these were recommendations, and an official meeting was not required for the family to change them. It suggested Mr and Mrs X monitor Ms Y’s behaviour over six months with the help of the CLDT and it would work with the CLDT to support the family if her behaviour deteriorated.
26. In February 2023 Mrs X complained to the Council about the restrictions on contact between Ms Y and Mrs Z and about other issues. She also complained separately to the NHS. The Council responded to Mrs X’s complaint in December 2023. It noted a number of the issues she raised related to events that happened over 12 months previously although it tried to respond. It said there was no evidence the Council supported restrictions on contact. It said there were COVID restrictions imposed by the Government. It said there was reference in the case notes to an agreement on telephone calls but this did not mention time limits.
27. I have spoken with Mrs Z who says she is able to call Ms Y but does not visit very often as Ms Y is busy with activities and has regular holidays with Mr and Mrs X.

Findings

28. From March 2020 to summer 2021, contact between Ms Y and her mother Mrs Z was affected by the restrictions imposed by the COVID-19 pandemic. This limited the opportunity for physical visits.
29. However, the records show there were concerns prior to the pandemic that contact between Ms Y and Mrs Z led to a deterioration in Ms Y’s behaviour. It is difficult to establish now when exactly the restrictions were introduced or how these were applied by the care home. It appeared that restrictions were suggested in 2014 following a meeting with the Council and CLDT but that they were not applied by the care home at that time. Mrs X has complained separately to the Parliamentary and Health Service Ombudsman about the CLDT’s role in enforcing the contact restrictions. But the records show the Council was aware of ‘restrictions’ or ‘guidelines’ placed on contact between Ms Y and Mrs Z in 2020 when Ms Y was in the care home. They also show the Council discussed the restrictions continuing when Ms Y went to live with Mr and Mrs X to allow her to settle in. It noted Mr X agreed they should continue.
30. When the family sought to remove all the restrictions in 2022, the Council advised these were recommendations and not restrictions and that it was for the family to decide whether they should continue.
31. The Council should have made it clear the contact limitations were recommendations. If it considered the restrictions were necessary, in Ms Y’s best interests, it should have formalised the arrangements through the mental capacity and best interests’ process. Its failure to do this was fault and meant the family continued to believe these were restrictions they were required to adhere to.
32. However, the records show the Council was concerned that unregulated contact between Ms Y and Mrs Z affected Ms Y’s behaviour. It was therefore entitled to decide to give guidance for contact. If the Council had been clear these were recommendations, I cannot say, even on the balance of probability, what difference this would have made. The Council may have proceeded to a best interests’ decision had it considered this necessary, depending on its assessment of the impact on any increased contact on Ms Y’s behaviour. However, the Council’s lack of clarity caused Mrs X and Mrs Z avoidable uncertainty and confusion.
33. There was also a significant delay in the Council responding to Mrs X’s complaint, This was fault and caused her additional frustration.

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Agreed action

34. Within one month of the final decision the Council has agreed to:
1. apologise to Mrs X and Mrs Z for the uncertainty and confusion caused by its failure to clarify the basis on which contact between Ms Y and Mrs Z was regulated and for the frustration caused by its delay in responding to Mrs X’s complaint.
2. remind staff to ensure when seeking to limit contact between a client and their relatives they are clear whether this is its recommendation to the family, or whether a formal best interests’ decision is required.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation. The Council was at fault causing injustice which it has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman