Summary: Miss Y complains about the care her late relative, Mrs X, received and says she was excluded from Mrs X’s care planning. She also says Council staff failed to act during a visit in 2019 when Mrs X had suffered bruises and cuts. While the Council made a minor error in its complaint response, I do not find this significant enough to represent fault. I find no evidence of fault in the Council’s care planning and it is not proportionate to pursue Miss Y’s allegations about the visit in 2019.

The complaint

1. Miss Y says:
1. the Council is wrong to say the LB of Barnet arranged the care package. Evidence from 2010 shows Haringey funded and commissioned the care provision and it has acted with fault in failing to have oversight of the carer and the care agency.
2. she was not involved in Mrs X’s care reviews or informed when she was taken to hospital (instead the hospital apparently informed Miss Y as the next of kin).
3. when the social worker visited in August 2019, she should have noticed that Mrs X had cuts and bruises.

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The Ombudsman’s role and powers

2. 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)
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’. (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 have considered the information provided by Miss X including her documents. I discussed the complaint with her. I made enquiries to the Council and considered its comments and information. I also shared my draft decision with her and read her response.
6. I have considered matters from 2018 onwards including reading Mrs X’s last care review carried out November 2018. I have not gone any further back as those matters would be significantly out of time and I see no good reason to investigate now. The only historic matter I looked at (an email sent by the Council in 2010) was to clarify which Council was responsible for arranging Mrs X’s care.

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What I found

Legal and administrative background

S117 free aftercare

7. Anyone who may need community care services is entitled to a social care assessment when they are discharged from hospital to show what services they might need. However, Section 117 of the Mental Health Act imposes a duty on health and social services to provide free aftercare services to patients who have been detained under section 3 of the Mental Health Act. The free aftercare services referred to here are limited to those:
1. arising from or related to the mental disorder and
2. reducing the risk of a deterioration of the person’s mental condition (to prevent re-admission).

Mental capacity assessment

8. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
• because he or she makes 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.
9. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

Appointees

10. An Appointee is accepted by the Department for Works and Pensions as responsible for claiming benefits on behalf of the relevant person. They are also responsible for spending the benefits in a person’s best interests, for example paying their utility bills etc.

Safeguarding

11. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)

What happened

12. The Council was responsible for commissioning and arranging Mrs X’s care under s117 of the Mental Health Act. Mental Health services in Haringey are integrated with Barnet, Enfield and Haringey Mental Health Trust. It arranged and funded the 24-hour care Mrs X received in her home from 2010 when she was discharged from hospital.

13. The Council says Mrs X moved to a different borough, as the family wanted Mrs X to live closer to relatives, but it retained responsibility for the social care aspects of Mrs X’s care including annual assessments and care planning. The Council also retained ‘appointeeship’ for Mrs X’s finances. The Council said this was at the family’s request.

Miss Y’s complaint and the Council response

14. Mrs X died in September 2019. Miss Y complained to the Council alleging negligence by the carer on the day Mrs X was taken to hospital in August 2019 after apparently choking. Miss Y alleged the carer had allowed Mrs X to choke to death and also alleged the carer had not cared for Mrs X properly in the past eight years.
15. The Council responded to the complaint to say:
• the allegations of negligence on the day the ambulance was called would be dealt with by the safeguarding team of the local council where Mrs X lived.
• that it (Haringey) was not responsible for carrying out quality assurance visits of the care agency provided care to Mrs X as it did not set up the care.
• the nominated social worker responsible for assessing and planning Mrs X’s care ‘was clear’ that Mrs X did not want any relatives involved in her care planning and this was documented in the last annual review from 2018. It also reported that Mrs X was happy with the service provided by the carer.
• that in hindsight it was sorry it did not do more to ‘reach out’ to Miss Y to advise ‘in general’ how Mrs Y was ‘without breaching her confidence and sharing information she would not give her consent to’.
16. Miss X replied, with evidence from a hospital in 2007 confirming her relative’s mental health condition, that in her view Mrs X was not capable of expressing her wishes in the way the Council had said.

The safeguarding investigation into Miss Y’s allegations by another borough

17. The LB of Barnet, in which Mrs X resided, retained responsibility for investigating safeguarding matters. It carried out a statutory investigation under s42 of the Care Act into Miss Y’s allegations about the carer on the day Mrs X was taken to hospital. It did this by considering Miss Y’s complaint and evidence about Mrs X’s health from her previous hospital admissions in 2010 and before. It interviewed all parties involved in the complaint including Mrs X’s carer, the carer’s manager and Mrs X’s GP. It also checked the paramedic records (including the carer’s call to 999) and sought the views of the hospital safeguarding adviser.
18. Overall, it found the concerns raised were ‘unsubstantiated’ and that the carer had acted appropriately. The report also highlighted the paramedics had raised no concerns when they were called to Mrs X’s home.

Is there evidence of fault by the Council?

Complaint a)

19. The Council responded to our enquiries admitting its complaints investigation response contained a factual error. It confirmed that it was the responsible council for commissioning the care agency in 2010 and not the LB of Barnet as it had previously said. I do not consider this minor error represents fault as the evidence I have seen, in the form of a care assessment review, clearly shows the Council carried out its community care duties, under s117, irrespective of the error in the complaint response.

Complaint b)

20. The care assessment explicitly records that Mrs X said she did not want her close relatives, including Miss Y, involved in her care so the Council is not at fault for not involving her in Mrs X’s care planning. I do not have any other information on the hospital visit referred to by Miss X. However, even if a hospital did call Miss Y on an occasion when Mrs Y was taken to hospital, this does not invalidate the care records evidence on Mrs Y’s wishes recording that Miss Y and close family should not be involved in her care. Miss Y very strongly expresses her views that Mrs X’s medical diagnosis in 2010 meant she lacked mental capacity generally to make decisions. That is not correct. The Mental Capacity Act is clear that capacity should be judged in a ‘decision- specific’ way as capacity can fluctuate.

Complaint c)

21. There is a record of a social worker visiting Mrs X on 13 August 2019 but no other information. The Council admit its records on this visit could have been more comprehensive, but the social worker did not come across anything to raise her concerns. It says at the time mental health social workers based on hospital sites did not have access to the local authority database. It says this has now been addressed so social workers can record all their contact on the Council’s social care database straightaway. Given the lack of information to show Miss Y raised this complaint contemporaneously, to the safeguarding investigation or in her original complaint to the Council, I do not consider it is proportionate to pursue the matter due to the lack of clear evidence and also as Mrs X has died.

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Final decision

22. I will now complete my investigation as there is no evidence of fault.

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Investigator's decision on behalf of the Ombudsman