Summary: Ms B says the Council failed to put in place sufficient support to enable her to return home from respite, delayed making those arrangements, failed to carry out mental capacity assessments properly, misled her family about what it was doing and failed to consider a complaint properly. There is no fault in the way the Council arranged the care provision at home. The Council failed to share important information with Ms B and her family, failed to properly advise her and failed to consider a complaint properly. An apology, payment to Mrs C and a reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Ms B, is represented by her niece whom I shall refer to as Mrs C. Ms B complained the Council:
• failed to put in place sufficient support following respite to enable her to have a successful return home;
• failed to carry out mental capacity assessments properly;
• delayed making arrangements for her to go home;
• led her family to believe it was dealing with the case;
• failed to act on its agreement to arrange for her to give up the tenancy on her home; and
• failed to consider Mrs C’s complaint properly.
2. Ms B says the Council’s actions have caused her and her family significant distress which has impacted on their relationship.

Back to top

The Ombudsman’s role and powers

3. 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)
4. 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)
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. 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)

Back to top

How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Ms B's/Mrs C’s comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
8. Ms B, Mrs C and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What should have happened

9. The Care and Support Statutory Guidance (the statutory guidance) says the person must be genuinely involved and influential throughout the care planning process. There should be a default assumption that the person, with support if necessary, will play a strong pro-active role in planning if they choose to.
10. The statutory guidance refers to the Mental Capacity Act (MCA). That requires local authorities to assume people have capacity and can make decisions for themselves, unless otherwise established. This means local authorities cannot assume someone cannot make a decision for themselves just because they have a particular medical condition or disability.
11. The statutory guidance says the local authority must support the person to understand and weigh up information, to offer choices and help people to exercise informed choice. A person must be given all practicable help to make the specific decision before being assessed as lacking capacity to make their own decisions.
12. The statutory guidance says if a local authority thinks a person may lack capacity to make a decision or a plan, even after they have offered them all practicable support, a social worker or other suitably qualified professional should carry out a capacity assessment for the specific decision to be made.
13. The statutory guidance says where an individual has been assessed as lacking capacity to make a particular decision, the local authority must begin care planning in the person's best interests.
14. Section 21A of the MCA gives the Court of Protection jurisdiction to decide several matters relating to deprivation of liberty. That includes cases where there is a standard authorisation in place for a person deemed to lack capacity to make decisions about where they should live and what care to receive.

What happened

15. Ms B was living in her own home and receiving care from a family member, along with a care provider. There were concerns about the impact on the family member providing care as well as concerns about Ms B losing weight as she was not engaging with the care provider. Due to that Ms B went into a care home for respite at the end of August 2021. The intention at that point was for Ms B to stay in respite for up to 4 weeks.
16. A Council social worker visited Ms B in the home on 17 September 2021. At that point Ms B was indecisive about whether she wanted to remain in the care home or go home. Following a further discussion with Ms B on 23 September the social worker recorded Ms B wanted to go home when everything was safe but agreed to stay in the care home longer due to concerns about her weight and nutrition.
17. Family members told the Council though that Ms B wanted to return home. As there was a discrepancy about what Ms B wanted the Council carried out a mental capacity assessment on 8 October. Ms B’s nieces were present at that assessment and the Council wrote the questions down for Ms B as she is deaf. The Council assessed Ms B as lacking capacity to decide on care and residence as her responses were inconsistent. The Council therefore held a best interests meeting on 15 October. That meeting decided Ms B should return home with a package of care.
18. The Council tried to arrange for the care provider that previously worked with Ms B to reinstate a care package with four visits per day. That care provider told the Council it no longer had capacity to provide care. The Council therefore looked for a new care provider. The Council identified a new care provider on 28 October. Ms B went home with a package of care on 3 November.
19. On 3 November Ms B’s niece contacted the Council to ask for a call back as she was concerned the care provider did not have a copy of the care plan. The Council spoke to the care provider who said Ms B refused to let care workers in. The Council’s social worker therefore visited Ms B on 4 November. The Council’s social worker explained why carers were visiting and Ms B agreed to allow access. The care provider reported the following day though that Ms B had again refused entry.
20. The Council contacted family members to see whether they could help but nobody was available to visit Ms B due to other commitments. Mrs C told the Council Ms B wanted to return to the care home which had said it could take Ms B back. Ms B returned to the care home on 9 November.
21. The Council’s social worker spoke to Ms B via care staff at the home on 24 November. Ms B told the Council she understood she needed to stay in the care home. The Council explained Ms B would therefore need to give up her rented property. Ms B said she wanted to discuss that with family members.
22. The Council held a further best interests meeting on 3 December. Ms B’s nieces attended and raised concerns about whether the care package previously put in place had been sufficient to enable the return home to succeed. One of the nieces suggested trying another care provider. The Council raised concerns though about moving an elderly lady repeatedly but agreed to speak to Ms B.
23. The Council’s social worker visited Ms B on 9 December. Ms B said she wanted to live part-time between the care home and her own home. The social worker told her that was not possible. The Council told Ms B’s family it would now have to follow the legal process as there was a dispute about where Ms B should live. The Council encouraged Ms B’s niece to get legal advice from a Court of Protection solicitor. Ms B’s niece and Mrs C told the Council they did not consider there was a dispute. The Council therefore stopped the legal process.
24. At a meeting on 3 February 2022 Ms B’s family asked the Council to arrange a move to a different care home as they were dissatisfied with the one allocated. Ms B moved into a new care home on 16 February.
25. On 5 April Ms B’s niece asked the Council for an update and whether it had made a decision about whether Ms B would remain in a care permanently.
26. The Council held a review meeting on 21 April. During that review Ms B said she would prefer to return to her property but accepted she needed significant support. Ms B said she did not object to staying in the care home. Both nieces said they felt the placement was working well and any further changes would be detrimental.
27. Mrs C contacted the Council on 30 May to ask when the Court of Protection would make its decision, referring to the fact Ms B still paid rent and utilities for her flat. There is no evidence of a response to that contact.
28. Mrs C contacted the Council again in October 2022. Mrs C told the Council Ms B did not want to stay in a care home and a recent assessment had assessed she did not need residential care.
29. The Council’s social worker visited Ms B at the care home on 31 October to complete an assessment. As Ms B did not engage the Council arranged another visit.
30. On 2 December the Council’s social worker visited Ms B with her nieces present. The family raised concerns about how things had been managed and made clear Ms B still had her rented property. Ms B said she wanted to identify a new care home. The meeting was cut short though because there was an outbreak of COVID-19 at the home. That meant the Council could not complete the mental capacity assessment about where Ms B should live.
31. A further meeting took place on 20 December. Mrs C said she did not want Ms B to move homes. The paperwork was completed during that visit for lasting power of attorney for Mrs C for finance to enable the family to take control over her personal finances and accommodation.
32. On 16 January 2023 a meeting took place. There was no agreement at that meeting about the future care arrangements for Ms B. As the section 21A process was underway the Council could not make a decision about Ms B’s living arrangements until the process completed.
33. On 24 February the Council carried out a further mental capacity assessment. That concluded Ms B had capacity to consent to her residence, care and treatment at the care home and was therefore not deprived of her liberty.
34. At a further meeting on 20 March Ms B said she was resigned to staying in the care home. The social worker told Ms B she needed to end her tenancy. Ms B said she understood but wanted to collect some belongings from the property first. As far as I understand it Ms B has still not ended her tenancy. Ms B remains in a care home.

Analysis

35. I am exercising the Ombudsman’s discretion to investigate the period from 2021 onwards. That is because I am satisfied Mrs C raised concerns with the Council in 2021 and 2022 and believed the Council was dealing with matters.
36. Mrs C says the Council failed to put in place a comprehensive care package for Ms B when she returned home from respite. Mrs C says that undermined the ability of the care at home to work.
37. The evidence I have seen satisfies me the Council put in place four carer visits per day so Ms B could return home from respite. The documentary evidence also shows that arrangement broke down almost immediately because Ms B would not allow access to the carers so they could develop a rapport with her or complete any assessments. Mrs C says though the care broke down because the Council failed to make sure the care provider understood the need to write everything down for Ms B due to her hearing difficulties. It is Mrs C’s view failing to do this is what led Ms B to refuse to engage with carers.
38. The evidence on this point is disputed. The care provider’s communications with the Council say carers knew about the need to write things down for Ms B and were doing so. However, Ms B and other family members were present during some of the care visits. They say none of the carers understood the need to write things down. I would have thought for those visits where family members were present they would likely have told the carers about the need to write everything down. It therefore seems unlikely to me, on the balance of probability, the care package broke down solely because carers did not understand the need to write everything down for Ms B.
39. In reaching that view I also take into account the history of this case which shows Ms B previously failed to engage with care support. Indeed, I note one of the reasons Ms B went into respite was due to her weight reduction which was at least in part due to failure to allow carers to help her. I am satisfied though the Council tried to make the care package work by sending out the social worker to talk to Ms B and write down an explanation about why the carers were attending in the hope this would encourage her to allow carers in. I have seen no evidence to suggest that changed anything as the care provider reported to the Council Ms B refusing access to its carers. In those circumstances and given the history of the case I do not consider it likely, on the balance of probability, if the Council had given specific instructions to the care provider about the need to write everything down for Ms B it would have resulted in the care package succeeding given previous care packages had not.
40. Mrs C says the Council failed to act when the family raised concerns about the suitability of the care package on the first day home. As I said in the previous paragraph, I am satisfied the Council acted when the family reported concerns about the care package as it sent the social worker out to speak to Ms B. I therefore could not say the Council failed to act. I am satisfied the reason the care package did not work and Ms B had to return to the care home was because she would not engage with the care package in place rather than due to any fault by the Council.
41. Mrs C says the family felt forced into the decision to return Ms B to the care home as there was no other option. However, the notes from the telephone call with Mrs C on 5 November 2021 record she told the Council Ms B had said she wanted to return to the care home. There is no evidence in the note of that call to suggest the family felt forced into that position. In any event, as I said in the previous paragraph, I am satisfied the issue here with the care package failing was related to Ms B’s unwillingness to allow carers into the property rather than due to any fault by the Council.
42. Mrs C says when Ms B returned to the care home the Council failed to review the situation and put in place a robust care package to enable Ms B to return home again. Mrs C says if the Council had done that it would have given Ms B an opportunity to make a decision about whether she could safely remain at home or needed to return to a care home.
43. The evidence I have seen satisfies me the reason the Council did not make further arrangements for Ms B to return home with a package of care after she returned to the care home is because a best interest decision was made that Ms B needed to remain in a care home. Mrs C’s communications with the Council as part of her complaint confirm the family did not dispute that at the time. As all parties therefore agreed a care home was a suitable placement for Ms B I cannot criticise the Council for failing to arrange another care package to enable Ms B to return home.
44. Mrs C says the mental capacity assessments the Council undertook before February 2023 cannot be relied on. Mrs C says that is because those assessments did not respect Ms B’s personality or method of communication. Having considered the documentary evidence I am satisfied each time the Council carried out a mental capacity assessment members of Ms B’s family were present (with the exception of one mental capacity assessment which was part of a separate complaint to the Council). I am also satisfied the social worker completing the assessments wrote down the information for Ms B. I have therefore found no evidence of fault in how the Council carried out the mental capacity assessments.
45. Mrs C says the Council delayed arranging for Ms B to return home with a package of care. Mrs C says Ms B should only have stayed in the care home for 2-4 weeks but instead stayed there for more than two months. Mrs C says this may have impacted on Ms B’s ability to successfully go home with a care package.
46. Having considered the documentary records I am satisfied the Council’s social worker spoke to Ms B while she was in the initial respite period. The records show Ms B told the social worker she was happy to stay in the home longer. I appreciate that may not have been the information Ms B gave to family members but the documentary evidence shows this is what she told the Council. I therefore cannot criticise the Council for carrying out a mental capacity assessment to consider whether Ms B had capacity to make a decision about where she wanted to live, particularly as it had concerns about her engagement with care services at home. That necessarily added in some delay and I do not consider that fault.
47. There was then a further delay following the decision to return Ms B home with a care package because the previously allocated care provider could not pick the package up again. I am satisfied though the Council made the arrangements for Ms B to return home as soon as it identified a care provider. So, while Ms B remained in the care home for longer than originally intended I am satisfied this was not due to any fault by the Council.
48. Ms B says the Council led her family to believe it was dealing with the case in the Court of Protection and failed to explain it had stopped that process. Having considered the documentary records I note Mrs C said in her complaint to the Council the family did not dispute the best interest decision for Ms B to remain in the care home in December 2021. Only if there had been a dispute about where Ms B should live would the Council have been expected to continue the Court of Protection process. However, I would have expected the Council to explain it had stopped the Court of Protection process. I have seen no evidence it did so. That is fault. I am also concerned that when Mrs C chased the Council for an update on what was happening with Court of Protection proceedings in May 2022 it failed to tell her those proceedings had ceased. That again is fault. I am satisfied that has caused Mrs C distress and has led to her having to go to time and trouble to find out what was happening.
49. I am also concerned about the lack of advice to the family about what Ms B should do with her rented property. I do not criticise the Council for advising the family to keep the rented property available while Court of Protection proceedings were being pursued. That is because the Court of Protection, had the application continued, may have decided Ms B should return home with care support. To give up the property before those proceedings were completed would therefore have pre-empted the Court of Protection decision and may have frustrated it.
50. However, I am satisfied the Council had discontinued those proceedings in January 2022 as there was no longer a disagreement about where Ms B should live. I would therefore have expected the Council to discuss with Ms B the arrangements for her to give up her rented property. Failure to do that is fault. I am also concerned that when it became clear at the review meeting in April 2022 Ms B would remain in a care home the Council failed to address the issue of Ms B’s rented property with her. That again is fault.
51. The evidence I have seen though satisfies me Ms B had changed her view by October 2022 and again said she wanted to return home with a care package. It is therefore clear Ms B had not accepted her placement in the care home was permanent as late as October 2022. There is no evidence Ms B accepted that until March 2023. I therefore do not consider it likely, on the balance of probability, if the Council had discussed the option of giving up the rented property with Ms B earlier it would have made any difference.
52. Mrs C says the Council’s social worker told her the Council would take over arrangements to give up the rented property in April 2022. I have found no evidence to support that allegation. Nor could the Council have agreed to sort out the arrangements for Ms B to give up the tenancy without Ms B’s agreement. As I said in the previous paragraph, it is unlikely Ms B would have given up the tenancy in April 2022 given she later said she wanted to return home and particularly given she has still not given up the tenancy despite the fact she has accepted she needs to remain in permanent care.
53. Mrs C says the Council failed to consider her complaint properly. It is clear Mrs C put in a detailed complaint to the Council in October 2023 which involved asking the Council to address a number of questions. I am satisfied the Council provided a comprehensive response. However, the Council failed to address all parts of the complaint. That is fault.
54. So, I have found fault in the Council’s failure to provide Ms B and Mrs C with information about the Court of Protection proceedings, failure to give them advice about the rented property, failure to respond to Mrs C’s communications and failure to address all the matters raised in the complaint. I do not consider it likely Ms B suffered an injustice because of the faults I have identified. That is because I do not consider it likely that impacted on the decision for her to remain in a care home. I also take into account the fact the Council has written off more than £10,000 in care home fees Ms B was liable to pay between November 2021 and March 2023.
55. However, I consider Mrs C has been caused an injustice as she experienced frustration and had to go to time and trouble to pursue her complaint and seek updates from the Council. To remedy that I recommended the Council apologise to Mrs C and pay her £300. I also recommended the Council remind officers of the need to confirm decisions, such as those relating to when Court of Protection proceedings have been discontinued, in writing. The Council has agreed to my recommendations.

Back to top

Agreed action

56. Within one month of my decision the Council should:
• apologise to Ms B and Mrs C for the distress they experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mrs C £300; and
• send a reminder to officers about the need to confirm decisions, such as those relating to when Court of Protection proceedings have been discontinued, in writing.

Back to top

Final decision

57. I have completed my investigation and found fault by the Council in part of the complaint which caused Mrs C an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

Back to top

Investigator's decision on behalf of the Ombudsman