Summary: Mrs X complained about the Council’s failure to provide an appropriate care home for her mother and deal with her complaint about this. This caused significant distress and uncertainty about the impact this had on her mother’s heath. We find the Council to be at fault. To remedy the injustice caused, the Council has agreed to apologise, make a payment to Mrs X and review its practices.

The complaint

1. Mrs X complains about the Council’s delay in making arrangements to facilitate her mother’s move to a care home when her health deteriorated. Mrs X says this caused significant distress to both her herself and her mother, and a probable decline in her health and well-being that led to her to die prematurely.
2. Mrs X also complains about the time it took for the Council to deal with her complaint about this matter.

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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. If we are satisfied with a council’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

5. I discussed the complaint with Mrs X and considered the written information she provided. I made written enquiries of the Council. I took account of all the information before reaching a draft decision on the complaint.
6. Both the Council and Mrs X had the opportunity to read my draft decision. Any comments received were taken into account before issuing my final decision.

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What I found

Legal background

The Care Act 2014

7. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual 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 their carer or any other person they might want involved.
8. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs.

The Mental Capacity Act 2005

9. The Mental Capacity Act 2005 sets out the principles for working with people who lack capacity to make a particular decision.
10. A person must be presumed to have capacity to make a decision unless it is established that they lack capacity. Just because someone makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
11. Where it is found that a person lacks capacity to make a particular decision, any act done for or any decision made on behalf of that person must be done or made in their best interests.

The statutory adult social care complaints procedure

12. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 set out the statutory basis for councils’ adult social care complaints procedures. The regulations require councils to make arrangements for handling adult social care complaints. The only time limit the regulations set out is that, normally, it should take no more than six months to complete a complaints procedure.

What happened

13. Mrs X’s elderly mother, whom I shall call Mrs B, had lived in assisted living accommodation (“the Accommodation”) since 2016. She had a degenerative condition and received four care calls a day to help her live independently. In November 2018, Mrs B’s condition worsened, and she was falling regularly. An Accommodation carer contacted the Council to say they could no longer meet her needs.
14. In early January 2019, as nothing had happened since, the Accommodation manager contacted the Council to request an urgent review because Mrs B’s behaviour had significantly deteriorated.
15. Mrs B had:

• entered other resident’s flat’s, without invitation, sometimes naked and on one occasion carrying faeces;
• fallen regularly;
• wandered the corridors of the Accommodation, sometimes naked;
• assaulted other residents and staff;
• been verbally aggressive to staff; and
• Soiled her bed and then refused to allow carers to move and clean her.

16. The Accommodation manager told the Council that Mrs B’s dignity was being affected and it was detrimental to staff and other residents.
17. A review of Mrs B’s care needs took place three weeks later. A move to a suitable care home was proposed. However, before this could happen, Mrs B needed a blood test and information from her consultant. The consultant quickly confirmed the need for Mrs B to be in a more supported environment, such as a care home.
18. In early February 2019, Mrs X was informed by the Council that Mrs B could not move until it had carried out an assessment of Mrs B’s mental capacity around the decision to move her. This assessment did not take place until May 2019 because there was a lack of suitably qualified assessors. Mrs B was assessed as lacking capacity about her care and support needs.
19. The Council tried to find a suitable care home. Options were limited because of Mrs B’s condition and cost. In the meantime, the Council offered to provide a temporary placement. Mrs X refused this because she did not want Mrs B to settle and then have to move again soon afterwards.
20. Four weeks later, before a suitable care home was identified, Mrs B was admitted to hospital. The Accommodation said she could not return as her needs were too great. Mrs X moved to a temporary placement but sadly died soon afterwards.
21. In June 2019, Mrs X lodged a formal complaint about the time Mrs B spent in an inappropriate care setting. The Council investigated and responded in November 2019.

The Council’s investigation report

22. This covered each element of Mrs X’s complaint:
1. Delay in responding to concerns raised by the Accommodation.

The Council partially upheld this complaint because it accepted it took too long to arrange the mental capacity assessment. But it considered that the initial allocation and review took place in an acceptable timeframe.

2. Too many social workers were involved that contributed to the delay.

The Council considered the roles of the eight social workers/managers who were involved in the case between November 2018 and June 2019. However, there were only two main workers. The Council did not uphold this complaint because it felt the delay was not attributable to the numbers of staff, particularly as they kept Mrs X updated about what was happening.

3. Why were timescales for a move not implemented and kept to?

The Council explained there were too many variables involved for a timeframe to be set. It was under the impression that the care home could manage Mrs B’s care needs in the short term and there was no urgent need for an alternative to be found. It considered that this position was justified because when Mrs X refused the offer of a temporary care home bed in May 2019. For these reasons, the complaint was not upheld.

4. Complaint handling.

The Council said the complaint was dealt with in a reasonable timeframe and Mrs X was kept informed about its progress.

5. The case handling was cost driven.

The Council rejected this assertion and was satisfied the cost implications of any new placement were properly explained and fairly applied to Mrs B’s financial circumstances. This complaint was not upheld.

Mrs X’s complaint to the Ombudsman

23. Disappointed by this outcome, Mrs X brought her complaint to the Ombudsman. She says she remains dissatisfied with the Council’s lack of explanation for the delay which Mrs X feels contributed towards her mother’s death. She says if she had been placed in a suitable home sooner, she would not have been admitted to hospital where she contracted sepsis. She did not accept the time it took to deal with her complaint was acceptable.
24. In response to the Ombudsman’s enquiries, the Council made the following points:

• A mental capacity assessment was required because the relevant legislation states that where there is a doubt about a person’s ability to make a decision, the Council must undertake an assessment.
• The family declined an offer of a temporary placement in May 2019, “so we had to assume the existing care and support plan was meeting Mrs B’s identified needs”.
• The investigating officer did not specify a time frame for a response to Mrs X’s complaint, which he should have done. But he kept Mrs X informed throughout.
• The Council accepted the case had taken too long to progress. It was “an unacceptable timeline”.
• To acknowledge this, the Council offered to pay Mrs X £200 “in recognition of the fault in relation to the delay in assessment, and an additional £300 due to the loss of opportunity to develop a care and support plan prior to Mrs B’s admission to hospital”.

Analysis

25. The Council has already accepted it took too long to progress this case because of the delay in allocating a suitable qualified person to carry out a capacity assessment. Because the Council has already accepted fault, I do not need to comment further on this aspect of the complaint. But I must consider whether there was additional delay or fault in respect of the other areas of Council practice complained about and set out in paragraph 22 above.

Mrs X’s complaints about delay and social work practice

26. The Council’s investigation only considered events from January 2019 onwards. But the records show the Council became aware of the possible need to move Mrs B in November 2018. The case notes record a call from Mrs B’s carer at the Accommodation, “Mrs B is having several falls every day….they are unable to keep her safe”. Despite this case being marked for transfer to an appropriate team, no action was taken until the Accommodation manager emailed the Council in early January 2019 requesting an urgent review. Approximately seven weeks were “lost” when nothing happened.
27. A review took place on 24 January 2019, two months after the case notes record the Council was told the Accommodation could not keep her safe. This only happened after a further prompt from the Accommodation manager in early January 2019. While there is no specific timeframe for such a review to take place, the relevant guidance states, “an assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs”.
28. As part of the complaint investigation, the investigating officer interviewed the social workers involved in the case. His notes of these interviews record the social worker saying that she did not consider the move as urgent because the Accommodation said they could manage Mrs B. The evidence I have seen does not support this opinion. These case notes recorded the following concerning events:

• Mrs B was having several falls a day.
• The Accommodation staff told the Council they could no longer keep Mrs B safe.
• Mrs B was found on the floor every time the care staff attended.
• Mrs B had access to her care help button but was not pressing it.
• Occupational therapy assessments had determined there was nothing more they could do to help Mrs B.
• Mrs B’s behaviour had become inappropriate, was an interference to other clients and was not maintaining her own dignity.

29. Taking this evidence into account I cannot agree with the social worker’s assessment that the situation was not urgent because the Accommodation could manage. The evidence I have seen does not support such a view. Having considered all of the evidence, on balance I find it was more likely that the Accommodation had to “manage” because of the Council’s failure to take action when it should have done.
30. Once the January 2019 review took place, the Council gathered relevant information quickly and soon decided Mrs B should move, but this could not be actioned until a mental capacity had been completed. Here there was further delay caused by shortage of staff. I share Mrs X’s concern about whether this was necessary, particularly as it led to such a significant further delay. The case notes record the social worker’s rationale for the assessment being necessary as being because Mrs B was going to move.
31. But this was not in dispute. Everyone involved in the decision, including Mrs B, her family, Mrs B’s consultant, the social worker and the Accommodation agreed she had to move. There is no statutory duty to conduct an assessment in respect of every decision in respect of a potentially incapacitated person. The Council appears to have taken an overly restrictive approach to the necessity of the formal assessment and contributed to the delay.
32. Again, the Council did not consider the situation to be urgent on the basis the Accommodation was able to manage. As before, the evidence I have seen does not support such a conclusion having been reached. The social worker asked the accommodation to keep a record of incidents during April 2019. The following were recorded:

• Three falls.
• Mrs B kicked a carer while lying in a urine-soaked bed.
• Mrs B spat out her medication over staff.
• Mrs B threw a cup at carers.
• Mrs B was admitted to hospital.
• Mrs B wandering naked in the corridor.

33. Again, I find this was a case of the Accommodation having to manage rather than it volunteering to do so. The Council let the case drift and relied on the Accommodation’s goodwill.
34. The Council has also said the case was not deemed urgent because Mrs X refused an offer of a temporary bed in May 2020. I do not accept this justification. Mrs X’s position was both reasonable and understandable. Her mother was extremely vulnerable and too many changes of environment could have significantly affected her health and well-being. Mrs X was acting in the best interest of Mrs B in rejecting the offer and does not excuse the Councils fault.
35. It took six months from the time the Council was first notified by the Accommodation that it could not keep Mrs B safe to when the Council was able source an alternative was in line with Care Act principles. For this reason, I find the Council to be at fault, over and above the delay it has already accepted
36. Mrs X said too many social workers contributed to the delay. I agree to the extent part of the delay was caused by a different social worker being needed to conduct the capacity assessment. However, it is not unusual for cases to be transferred between social workers for any number of reasons. I have found no evidence to support Mrs X’s complaint about this.
37. Similarly, I have found no evidence that the handling of the case was cost driven. I accept what the Council has said about it being impractical to implement timeframes for such cases as too many variables are involved. But I understand why this has been raised by Mrs X as delay was such a major factor in this case.

Complaint handling

38. Mrs X first complained in June 2019 and the Council responded in November 2019.
39. The only statutory time constraint for an adult social care complaints procedure is that it should normally be completed within six months. The Council’s own procedure says it will agree timescales at the outset. The Council has accepted this did not happen and apologised for this mistake, but explained the investigator was in regular contact with Mrs X and this is supported by the case records I have seen.
40. The Council completed the procedure within five months. While I understand Mrs X’s frustration at not being told she may have to wait so long, because the complaint was completed within the statutory timescale and Mrs X was in contact with the investigation, I do not find the Council at fault here.

Injustice

41. Mrs X says her mother’s life was cut short because of the Council’s failure to provide a suitable placement when it should have done. She says Mrs B may not have needed hospital care in May 2019 where she contracted sepsis. I cannot say whether or not Mrs B’s hospital stay was avoidable and so had a direct impact on Mrs B’s health. I do not have the evidence to draw such a conclusion. Mrs B was not in good health and could have needed hospital care even if she had been in an appropriate setting.
42. But I am satisfied there was injustice arising from the Council’s fault because it created uncertainty for Mrs X as to whether the outcome could have been different for Mrs B. Mrs X also suffered distress caused by knowing her mother was not receiving the level of care she needed.
43. In response to my enquires, and having accepted some fault in this case, the Council has proposed a personal remedy for Mrs X. As I have identified additional fault and injustice, I made a modest increase to the payment to Mrs X in my recommendations below.
44. I have not recommended payments to the late Mrs B (for her distress in having to stay in the accommodation longer than necessary because of the Council’s delay in making arrangements to move her) This is because the Ombudsman’s view is this distress is a personal injustice and we would not normally seek a remedy for it in the same way we might if the person was still living.

Agreed action

45. To remedy the injustice identified in this decision statement, the Council has agreed to take the following action within four weeks from the date of my final decision:
1. Apologise in writing to Mrs X.
2. Pay Mrs X £400 for the delay (this is £200 more than the Council’s proposal to reflect the additional delay) and £300 for the loss of opportunity and uncertainty around the support planning process and outcomes.
3. Reflect on the issues raised in this decision statement and identify any areas of service improvement. The Council should prepare a short report setting out what it intends to do to ensure similar problems do not reoccur. This report should be sent to the Ombudsman.

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Final decision

46. The Ombudsman has found the Council to be at fault and the Council has agreed a suitable remedy. I have completed my investigation

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Investigator's decision on behalf of the Ombudsman