Summary: Mr X complained the Council prevented him from bringing his mother, Mrs B, home after she was discharged from hospital to a care home. Mr X also complains about the way the Council dealt with a safeguarding allegation made against him. There was no fault in how the Council carried out the safeguarding investigation. The Council provided incorrect information to Mr X about ‘approved’ care providers but this did not cause an injustice. The Council acted without fault when it made a best interest decision that Mrs B would be best cared for in a care home. There was some delay in authorising Mrs B’s deprivation of liberty safeguard applications but this did not cause an injustice.

The complaint

1. Mr X complained the Council:
• failed to follow the correct process when it investigated a safeguarding allegation against him;
• blocked his attempts to bring his mother, Mrs B, home with a live-in care after a hospital stay;
• blocked his attempts to get Mrs B home following a move to a care home despite this being her wish; and
• sent him a notice to pay outstanding care home fees despite him not agreeing to the placement. Mr X believes that as a result, the Council should pay the fees.
2. Mr X says this has caused him and Mrs B distress and frustration.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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

6. I spoke to Mr X, reviewed the notes made of a previous call by a different investigator and considered the written information provided by Mr X, included his formal complaint to the Ombudsman and his journals and published material about Mrs B’s place in a care home.
7. I made enquiries of the Council and considered the information it provided. This included Mrs B’s daily case notes, safeguarding documentation, copies of mental capacity act assessments, DoLS documents and best interest decision forms.
8. I considered the relevant legislation which includes the Metal Capacity Act 2005 and the Care Act 2014.
9. I wrote to Mr X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

Capacity and best interest decisions

10. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
11. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary.
12. When assessing if someone has capacity, the assessment must only examine a person’s capacity to make a particular decision when it needs to be made. This is particularly relevant to people with fluctuating capacity.
13. The test of capacity has two stages:
• Does the person have an impairment of their brain or mind?
• Does that impairment mean that the person is unable to make a specific decision when they need to?
14. Where there is disagreement between the Council and the family, the Council should appoint an Independent Mental Capacity Advocate (IMCA) when important decisions need to be made. The IMCA represents the person who is incapacitated.
15. A key principle of the MCA is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision-makers must follow to determine what is in a person’s best interests. This includes considering the person’s past and present wishes and feelings, the views of family and carers, whether the person is likely to recover capacity and the relevant medical and social circumstances.

Safeguarding

16. 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 they cannot protect themselves. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (s42, Care Act 2014).
17. The Council is the lead authority for the area’s joint multi-agency safeguarding board. The board’s procedures when receiving a potential safeguarding concern include:
• Assessing risk and ensure safety of the adult at risk;
• Deciding on the appropriate response;
• Discussing with the adult at risk what they want to happen and how any risk should be managed; and
• Where necessary, carrying out further enquiries, drawing up a safeguarding plan, taking appropriate steps and/or closing the case within 12 weeks of the original concern being reported.

Deprivation of Liberty Safeguards (DoLS)

18. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 that came into force on 1 April 2009. The 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.
19. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no other less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without authorisation, a deprivation of liberty is unlawful.
20. The Council must carry out a best interests assessment to see whether the person is being, or is going to be, deprived of their liberty and whether it is in their best interests. The assessor should take the person’s values and views expressed in the past and the views of family and carers.
21. DoLS are non-transferable. This means that is a person moves, for example from hospital to a care home, a new DoLS must be carried out.
22. An urgent DoLS authorisation can be granted if it is necessary to deprive someone of their liberty before a standard authorisation can be granted. This can last up to 7 days and can be extended once for a further 7 days if the standard authorisation has not been completed.

Lasting power of attorney and deputyship

23. A Lasting Power of Attorney (LPA) is a legal document that allows someone to choose who they would like to make decisions for them in the future, if they cannot make them themselves.

What happened

24. Mrs B who is in her 90s previously lived with her son, Mr X. Mr X was Mrs B’s only carer. Mr X does not have lasting power of attorney for Mrs B. Mrs B has a progressive cognitive disease.
25. In August 2019, Mrs B was admitted to hospital by ambulance after falling at home. On 22 August 2019, the ambulance service made a safeguarding referral to the Council in relation to Mrs B’s living conditions and care and the fact Mr X did not know when Mrs B had last eaten, drunk or been to the toilet. The crew also said Mrs B was very agitated.
26. At the hospital, medical staff found Mrs B was severely dehydrated and feverish and had other health conditions. Staff were concerned because of the delays in Mr X calling for medical help. He was also observed to bring Mrs B clothes that appeared unwashed whilst she was in hospital.
27. The Council began a safeguarding investigation because neglect was suspected. The investigator and a social worker visited Mrs B in hospital on 27 August 2019. Mr X was present. The notes from the visit stated Mr X said he “does not have the knowledge or skill to look after mum… I cannot be there for 24 hours a day… I would have two carers in the house”. The investigator asked when Mrs B had last seen her GP but Mr X was unable to recall.
28. The investigator and social worker returned the following day to speak to Mrs B without Mr X present about the safeguarding concerns and also to assess her mental capacity in relation to safeguarding and care and welfare. Mrs B presented as confused and quickly became distressed.
29. Mr X called the social worker on 28 August 2019 and said he wanted Mrs B to return home with a 24/7 package of care. Mr X had identified a care provider who had said it could provide the care Mrs B required. The social worker advised Mr X that the Council would have to make a best interest decision under the MCA about Mrs B’s care because she did not have capacity to make these decisions.
30. The Council appointed an IMCA for Mrs B on 30 August. The social worker also carried out an MHA assessment and determined Mrs B did not have capacity to make a decision about her care and where she should live.
31. The social worker met with Mr X on 2 September and informed him of the safeguarding referral. She also explained she had visited Mrs B and determined she did not have capacity to make decisions about her care and where she should live. The care notes record Mr X was very keen that any package of care involved live-in care. He said he had sourced a care provider who could offer that service. The notes record the social worker explained a best interest decision would need to be made about this. The social worker also said she would have to check if the care provider was on the Council ‘approved list’ because it would not authorise payments for care from unapproved care companies.
32. A Council assessor visited Mr X and Mrs B’s home the following day. The notes record there were significant risks with the radiators and some of the plugs. The rest of the house needed a clean, but the notes did not record any additional concerns. A further visit from another officer raised concerns about the lack of smoke and fire alarms, significant trip hazards from rugs which Mr X was reluctant to move, the poor state of Mrs B’s slippers creating a trip hazard and the appearance of Mr X at home as his clothes and shoes were in significant disrepair.
33. Mrs B’s IMCA visited her on 19 September. She recorded Mrs B talked about wanting to go home but she thought ‘home’ was the farm she grew up on and that her mother and father would be there.
34. The Council held a safeguarding strategy meeting on 20 September. Mrs B’s IMCA was present. Mrs B did not have capacity to understand the safeguarding process or make her wishes known but attendees agreed it was in her best interest to continue with the investigation.
35. The case records show Mr X emailed the Council on 25 September. He provided bank details to show Mrs B would have to pay for all of her care.
36. On 2 October the social worker visited Mrs B at hospital to complete the mental health capacity assessments in relation to care and finances. The social worker determined Mrs B did not have capacity to manage her finances or decide on where she should live.
37. On 8 October 2019, Mr X emailed the social worker to say he would be prepared to pay for Mrs B’s home care. The social worker replied the same day and apologised that she had previously said the care provider must be on the Council’s approved list. Mrs B was a self-funder and so that requirement was not necessary. The social worker said that if Mr X identified a care provider he would need to provider their details so she could discuss Mrs B’s needs with them.
38. On 10 October 2019, the Council held a safeguarding case conference. It was agreed any neglect by Mr X towards Mrs B was not deliberate or intentional. With regard to Mrs B’s care, the notes record the IMCA had “massive concerns around [Mrs B] going home and felt that [Mrs B] had already show a massive deterioration from 2 moves and the length of time a possible [home] care package could be sustained was a worry as this would necessitate a further move”.
39. The reason the IMCA was concerned about Mrs B needing to move again in future was because she only had enough funds to pay for a package of home care for a few months. Council policy was that it would not fund 24/7 packages of care at home. Because Mrs B needed 24/7 care, this meant that once the Council became responsible for funding her care, Mrs B would need to move to a care home.
40. On 22 October 2019, the Council made a best interest decision which stated it was in Mrs B’s best interests to move into a care home because Mr X could not provide the level of care she needed. The views of Mr X and Mrs B’s INCA were taken into account during the process. At this stage, Mr X felt a care home would be best for Mrs B because he would struggle to provide the care she needed at home.
41. In November 2019, Mrs B was considered suitable for discharge from hospital. The social worker carried out the best interest decision-making process to determine whether she should return home or be admitted to a care home. Mr X sent the social worker an email in which he said he could not care for Mrs B and so he agreed a care home placement would be his preferred option. The social worker also spoke to Mrs B’s IMCA and ward staff who were caring for Mrs B.
42. The social worker decided it was in Mrs B’s best interests to go into a care home. She said this was because of concerns about the home environment and about the suggestions Mr X had made in relation to Mrs B’s care.
43. Mrs B moved to a care home on 22 November 2019. Mr X almost immediately gave notice.
44. The care home asked for an emergency DoLS authorisation on 2 December which was agreed and then subsequently extended to 15 December 2019.
45. On 16 December 2019, the Council again authorised Mrs B’s DoLS application for a period of four months. This meant it would run out on 16 April 2020.
46. The Council had concerns about the arrangements Mr X had put into place at home and did not feel they were suitable to meet Mrs B’s needs and care requirements. As a result, the Council would not let Mrs B return home. However, because Mr X was unhappy with the decision and said he had suitable home care for Mrs B, the Council said it would reassess Mrs B to consider whether it was still in her best interests to remain at the care home.
47. Mr X complained to the Council on 17 and 30 December 2019.
48. The Council replied on 6 January 2020. It did not uphold Mr X’s complaint that it was wrongly keeping Mrs B at the care home. It said because Mr X did not have a LPA for Mrs B for welfare, it was the decision-maker under the MCA. It had decided it was in Mrs B’s best interests to stay at the care home.
49. The Council said that it was currently paying for Mrs B’s care but it would now invoice Mr X to repay this. The Council later agreed to put repayment on hold until I had finished investigating.
50. Mr X remained unhappy and complained to the Ombudsman.

Events after Mr X’s complaint to the Ombudsman

51. Later in January 2020, the Council carried out two home visits to talk to Mr X. On 6 February, the Council carried out another best interest assessment. Mr X, the manager and deputy manager of the care home, an occupational therapist and a social care assessor were present. Mrs B’s IMCA also provided their views in writing. Mr X had sourced a care provider who said it could provide a package of home care for Mrs B, consisting of 24/7 care with 2 carers at all times and a wake night (meaning a carer would remain awake during the night to manage Mrs B’s needs).
52. The assessment considered the advantages and disadvantages of moving Mrs B home. It was decided it was in her best interests to remain at the care home.
53. On 4 June 2020, the Council authorised Mrs B’s DoLS application for a further four months. The Council said this had been delayed but the Council’s panel had approved an extension for another four months on 8 June 2020.
54. The Council said one of the DoLS conditions from the December 2019, was the care staff recorded when and if Mrs B asked to leave the care home. The Council said that so far Mrs B had not been heard to make such a request.

My findings

Safeguarding investigation

55. In considering this aspect of the complaint, I have looked at Mrs B’s case records, the minutes of the safeguarding meetings and the MCA assessments carried out with Mrs B.
56. When a council receives a safeguarding alert, it should take steps to decide what actions are required. In this case, the Council decided to begin enquiries under s42 of the Care Act 2014. During a safeguarding investigation, a council should ascertain where possible the wishes of the person suspected of being abused and what they want to happen.
57. In this case, the Council received the safeguarding alert on 23 August 2019. It visited Mrs B in hospital on 28 August and assessed her capacity to understand she was the subject of a safeguarding investigation. It determined she lacked the capacity to understand. The Council appointed an IMCA for Mrs B and decided it was in her best interests to carry on with the investigation, despite her lack of capacity to understand what was happening or communicate her wishes.
58. The Council informed Mr X of the safeguarding investigation at the beginning of September. It held two meetings, in September and October 2019, with the relevant professionals. At the October meeting, it was agreed any abuse was not deliberate or intentional and Mrs B would be best managed through the normal adult social care processes. The Council closed the safeguarding case and informed Mr X. All these actions are what I would expect to see. There was no fault in the Council’s actions.

Live-in package of care for Mrs B

59. Mr X complained the Council misinformed him when it said the care provider must be on its approved list. This was incorrect because Mrs B was a self-funder and so there was no need for this requirement.
60. The social worker apologised to Mr X. This was sufficient to remedy any injustice or confusion this caused. And shortly afterwards, the Council made a best interest decision that Mrs B required residential care.

DoLS authorisation

61. Mrs B’s DoLS was delayed for 10 days when she was first admitted to the care home. There was then a delay of several weeks in issuing the DoLS for Mrs B between April and June 2020. This is fault. However, this did not cause Mrs B an injustice. The Council authorised the DoLs on both occasions without fault. Mrs B continues to reside at the care home with a DoLS in place.

Mrs B’s placement at the care home

62. Mr X does not have lasting power of attorney for Mrs B. Therefore, the Council was entitled to make a best interest decision about where Mrs B should live.
63. Mr X originally wanted Mrs B to return home when she was discharged from hospital. After carrying out a home visit, the Council had concerns about the house and Mr X’s ability to care properly for Mrs B. Mr X later changed his mind and said Mrs B should live in a care home.
64. The Council carried out a best interest assessment and decided it was in Mrs B best interests to go to a care home. The Council involved the IMCA in this decision and took Mr X’s wishes into account.
65. Mr X gave notice for Mrs B almost as soon as she had moved in. The Council discussed the matter with the care home and Mrs B’s IMCA who was not in agreement with Mrs B’s move. The Council informed Mr X that to move Mrs B went against the Council’s best interest decision and suggested he could challenge this in the Court of Protection if he wished. The Council revoked Mr X’s notice. There was no fault in how it decided to do this.
66. Because Mr X was unhappy with the Council’s decision, the Council said it would carry out another best interest assessment. It carried this out and determined Mrs B should remain at the care home. There was no fault in how it carried out the assessment or the decision-making process.
67. If Mr X disputes the Council’s best interest decision to keep Mrs B at the care home it is open for him to challenge it at the Court of Protection. In the meantime, the Council is entitled to issue Mr X with requests to repay the money the Council is owed for Mrs B’s care home fees.

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Final decision

68. I have completed my investigation. There was some fault in the DoLS application process, but this did not cause Mr X or Mrs B an injustice. There was no fault in how the Council carried out the safeguarding investigation or its decision that it was in Mrs B’s best interests to have residential care.

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Investigator's decision on behalf of the Ombudsman