Summary: Mr X complained about the way the Provider dealt with him and the care of a family member, Mr Y. We found no fault in the actions of the Provider.

The complaint

1. Mr X complains on behalf of himself and Mr Y about the way the Provider dealt with him and Mr Y’s care. He says the Provider:

• failed to fully address his concerns;
• used inaccurate and inappropriate language in notes and its complaint response;
• failed to supervise and train staff;
• failed to invite the family to a best interests meeting; and
• delayed Mr Y’s discharge from hospital.

2. Mr X said that Mr Y was kept in hospital for five weeks longer than he needed to be which caused a deterioration in his physical and mental health. He also says the delayed discharge meant that a family member had to always be with him in hospital. Mr X said the language the Provider used about him caused him distress and frustration.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused a significant injustice or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(3 and 4) 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 there is no worthwhile outcome achievable by our investigation or there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
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. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
7. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
8. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
9. 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)
10. 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

11. I have not investigated Mr X’s complaint that the Provider used inaccurate and inappropriate language in notes and its complaint response. This is because Mr X may have a right of rectification under the Data Protection Act. If he is unhappy with how the Provider deals with any requests, he can raise this with the Information Commissioner.
12. I have also not investigated Mr X’s complaint that the Provider failed to supervise and train its staff. This is because there is no evidence that Mr X complained to the Provider about this matter. We generally expect complainants to use a provider’s complaints procedure before we will investigate a complaint and, in this case, if Mr X was unhappy with staff training, it was reasonable for the Provider to have a chance to investigate and respond to his concerns.
13. I have considered the remainder of Mr X’s complaint.

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How I considered this complaint

14. I considered evidence provided by Mr X and the Provider as well as relevant law, policy and guidance.
15. Mr X and the Provider 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

Legislation and guidance

The Regulations

16. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Guidance.) The Ombudsman considers the 2014 Regulations and the Guidance when determining complaints about poor standards of care.
17. Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences. Care providers should carry out an assessment of needs and preferences and design a care plan to meet needs and preferences.
18. Regulation 12(i) of the 2014 Regulations says a care provider must provide care and treatment in a safe way including by working with health professionals to ensure the health and welfare of people.

Mental Capacity Act

19. 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

20. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity.
21. The decision maker 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.

Best interest decision making

22. 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.
23. 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.

Deprivation of Liberty Safeguards (DoLS)

24. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.

What happened?

25. COOCI Associates (the Provider) work with adults with additional needs by providing case management services. This service provides a co-ordination service for people who have received compensation awards for injuries. Mr Y is an adult with care and support needs. The Provider’s role was to provide non-statutory case management for Mr Y.
26. Towards the end of November 2024, Mr Y was admitted to hospital.
27. The Provider met with Mr Y and his mother, Ms A, shortly after his admission to hospital. Ms A explained she did not want a care provider to support Mr Y when he was discharged from hospital.
28. Provider case records note it had been in contact with a care provider (Provider A) about care for Mr Y when he was discharged.
29. The Provider arranged a meeting in early December with the Council to discuss care for Mr Y. The Council failed to attend this meeting.
30. The Provider visited Mr Y and Ms A again in hospital on the day after. They agreed to meet Provider A in hospital with a view to them providing care upon discharge.
31. The Provider held a meeting with Mr Y and his family the following week. They discussed Provider A. Case notes from the Provider noted that Ms A had concerns about Mr Y being discharged from hospital and she was unsure what support was in place because there was no discharge plan between the hospital and the Council.
32. Shortly after this, the Provider spoke to hospital staff and offered help with planning Mr Y’s hospital discharge. It also emailed the Council noting it was disappointed with the Council’s inaction, and it wanted to get statutory and private support services aligned to support Mr Y. The Provider noted it had, for several weeks, been trying to coordinate planning.
33. In mid-December, the Council told the Provider Mr Y would need a new Care Act assessment and capacity assessment to determine social care resources for him which would be the responsibility of the Council to complete.
34. The same day, the Provider noted that the Council had concerns about Mr Y being discharged which it would share with the hospital.
35. Shortly after this, the Council completed its own needs and risk assessment related to Mr X.
36. The Council arranged a best interests meeting to be held the following week. It invited the Provider to attend this meeting. The Council also noted it had applied to the courts for a DoLs to prevent Mr Y being discharged from hospital.
37. The following week, the Council decided to change the planned meeting from a best interests meeting to a multi-agency meeting. It discussed Mr Y was medically fit for discharge but could only be discharged when appropriate care was in place. The Council agreed to arrange short-term care. The Council noted Ms A should contact the Council for any discharge discussions.
38. Three days later, the Provider sent a request to three providers to provide temporary care and support to Mr Y in addition to the care being arranged by the Council.
39. The Council arranged a follow up meeting for agencies the following day. The Council explained it had originally planned to arrange a best interest meeting with discharge options agreed, but there were no clear options. The Provider said it was struggling to find providers and support staff and so suggested employing two of Mr Y’s family members to provide care temporarily to help with a safe discharge. The Council agreed to chase up the placement team, and the Provider would investigate employing family members. The Provider noted there was still a DoLs in place, preventing Mr Y’s discharge.
40. The same day, the Council emailed Ms A. It noted that it might not be possible for Mr Y to return home for Christmas as it needed to hold a best interests meeting to consider all options, which could include a care home placement or a living in carer. It also explained Mr Y’s independent advocate had noted that Mr Y wanted to go home, but not yet, and so it needed to consider this.
41. A best interests meeting took place at the end of December, which decided Mr Y could be discharged the same day. He would be discharged home with carers providing care and support four times a day which would be Council funded.
42. In mid-March 2025, Mr X complained to the Provider about matters he has raised with the Ombudsman.
43. The Provider responded to Mr X’s complaint in mid-April. It noted:

• The Provider contacted three agencies when trying to arrange a care agency to support Mr Y when discharged from hospital
• The best interests meeting at the end of December 2024 had been arranged by the Council and not the Provider.

Findings

The Provider failed to fully address Mr X’s concerns

44. Following Mr X’s complaint to the Provider, it provided a response to each part of Mr X’s complaint. Mr X was unhappy with the Provider’s response, but it responded to each of his complaint points and so there was no fault in its actions.

The Provider failed to invite Mr Y’s family to a best interests meeting

45. A best interests meeting was held at the end of December 2024. This was organised and chaired by the Council. The Provider was invited to attend the meeting as a participant, and it did so.
46. There was no fault in the Provider not inviting Mr Y’s family to attend the meeting because it did not organise the meeting – the Council did. If Mr X and his family remain unhappy that they were not invited, they have the option of complaining to the Council.

The Provider delayed Mr Y’s discharge from hospital

47. The Council and the NHS were legally responsible for Mr X’s discharge from hospital. This was evidenced by the Council telling Ms A that it should be the main contact for discharge discussions. The Council was also responsible for DoLs and best interests assessments and these took some time to finalise.
48. Mr X’s discharge was not the responsibility of the Provider and so there was no fault in its actions related to this matter. It acted in line with Regulations 9 and 12(i) of the 2014 Regulations as I have set out in paragraphs 17 and 18 by completing its own assessment and by liaising with the Council and hospital about facilitating Mr Y’s discharge. If Mr X remains unhappy with the discharge plans, he has the option of complaining to the Council or NHS.

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Decision

49. I find no fault.

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Investigator's decision on behalf of the Ombudsman