Summary: Mr X complains on behalf of his late uncle, Mr Y, about his care charges, the actions of his social worker and delays in moving him out of a care home. Mr X also says the Council dismissed his earlier attempts to complain. He says these matters caused financial difficulty for Mr Y and says this contributed to wards his heart attack. We have found fault in the Councils actions for the delay in completing a Mental Capacity Assessment. The Council has agreed to issue Mr X with an apology and pay a financial remedy.

The complaint

1. Mr X complains on behalf of his late uncle, Mr Y, about his care charges, the actions of his social worker and delays in moving him out of a care home. Mr X also says the Council dismissed his earlier attempts to complain.
2. He says these matters caused financial difficulty for Mr Y and says this contributed to wards his heart attack.

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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 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. 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(1), as amended)

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What I have and have not investigated

6. I have not considered events prior to May 2023. Any complaints about issues before May 2023 are late and could have been raised sooner including actions of the care home staff investigated as a safeguarding matter.
7. I have considered events from May 2023 onwards which is when Mr Y moved into the new care home and is a suitable place to begin the investigation.

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How I considered this complaint

8. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
9. Mr X and the Council were invited to comment on my draft decision. I have considered any comments before making a final decision.

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What I found

10. 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.
11. 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.

12. 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.
13. 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:
14. Does the person have a general understanding of what decision they need to make and why they need to make it?
15. Does the person have a general understanding of the likely effects of making, or not making, this decision?
16. Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
17. Can the person communicate their decision?
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. 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

20. Mr Y moved into a new care home in May 2023.
21. The Council completed A Deprivation of Liberty Safeguards (DoLS) assessment in early September 2023. This confirmed DoLS should remain in place for a further year.
22. In October 2023 Mr Y’s niece discussed with the Council that she thought Mr Y’s capacity had returned and the Council agreed a review would take place.
23. The Council completed a review in October 2023 and contacted the care home in early November 2023 to ask if the care home was requesting a further DoLS assessment. The Council agreed the care home would complete a Form 10 to request a new DoLS assessment.
24. The Council spoke to Mr Y’s niece in mid-October 2023 and said the care home felt Mr Y may have regained capacity. The Council discussed that Mr Y needed a Paid Relevant Persons Representative (PRPR) to represent him due to an ongoing safeguarding investigation.
25. The PRPR was appointed in January 2024.
26. Mr Y’s niece contacted the Council in March 2024 about Mr Y’s financial matters and said his social worker had not been returning her calls.
27. Mr Y’s niece spoke to the Council in early April 2024 to raise concerns about the social worker cancelling appointments and failing to return calls. The Council dealt with this as a concern.
28. Mr Y’s niece called the Council again in late April 2024 and said she wanted to discuss Mr Y’s placement and asked for a call back.
29. Mr Y’s care home contacted the Council to say he was requesting a visit from his social worker.
30. The Council completed a Mental Capacity Assessment with Mr Y in early May 2024 and assessed him as having capacity. DoLS was removed shortly after.
31. The Council then worked with Mr Y and his niece to secure a placement more suited to his needs. Discussions and the search for a suitable placement continued until August 2024 when Mr Y moved to a sheltered accommodation site in late August.
32. Mr Y died in November 2024.
33. Mr X raised a complaint with the Council in mid-November 2024 and said Mr Y had received care which was higher than necessary for a prolonged period. He said the social worker did not visit Mr Y and did not help with the search for appropriate accommodation. Mr X also said the Council dismissed earlier attempts to raise a complaint. Mr X said the Council’s actions had contributed to Mr Y’s heart attack.
34. The Council responded to Mr X in January 2025 and said Mr Y’s contribution would have been the same even if his room was changed sooner. The Council said its notes showed the social worker was involved in Mr Y’s care and had liaised with the family about Mr Y’s move. The Council said no formal complaint had been logged.
35. Mr X responded to say the charges were higher due to the level of care Mr Y was receiving. He said the social worker did not visit enough and the Council had not informed the family when the social worker was off sick. Mr X said the Council had failed to complete a Mental Capacity Assessment which meant DoLS had been in place longer than needed.

Analysis

36. The Council spoke to the care home in October 2023 and agreed the care home would complete a Form 10 to review Mr Y’s capacity. The Council then found Mr Y needed a PRPR. The PRPR was not appointed until January 2024. While there is a delay between October 2023 and January 2024 this is due to the PRPR appointment.
37. Following the appointment of the PRPR I cannot see the Council took any action to complete the Mental Capacity Assessment agreed. This is fault and would have caused Mr Y distress. The Council has said the delay was contributed to by the long-term sick leave of the allocated worker but that during this time it continued to meet Mr Y’s needs.
38. Mr X has said that had the Council completed the Mental Capacity Assessment sooner, it would have recognised Mr Y had regained capacity and he would have moved to a different accommodation sooner. While I appreciate why Mr Y has said this, I cannot say what the outcome of any Mental Capacity Assessment would have been had it happened sooner. A DoLS assessment had taken place in September 2023 which concluded DoLS should remain in place and as such it is not clear whether the outcome of a new assessment would be any different.
39. I do acknowledge the delay in completing the Mental Capacity Assessment has left Mr X with the feeling of uncertainty as to whether Mr Y could have moved to a different accommodation any sooner.
40. Mr X says this would have had an impact on the amount the Council charged Mr Y for accommodation. However, the Council has said Mr Y’s contributions would remain the same even if his room was changed sooner.
41. Once DoLS had been removed I can see the Council worked with the family to find another suitable accommodation for Mr Y and I have not found a delay in securing this.
42. Mr X says the Council dismissed his earlier attempt to complain. I can see the Council discussed concerns with Mr Y’s niece, but I have not been able to see any evidence of a complaint being raised and not dealt with. I have not found fault in this aspect of the complaint.

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Action

43. Within four weeks of a final decision, the Council should:

• Write to Mr X and apologise for the distress caused by the faults identified.
• Pay Mr X £300 for the distress and uncertainty caused by the delay in completing the Mental Capacity Assessment.

44. Within three months of a final decision, the Council should:

• Review its procedures to ensure the delays experienced by Mr Y’s family in completing the Mental Capacity Assessment do not recur and advise the Ombudsman of the action taken to improve its practice.

45. The Council should provide us with evidence it has complied with the above actions.

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Decision

46. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman