The Ombudsman's final decision:
Summary: The Council was not at fault for deciding not to assess
Mrs C’s needs in December 2019, for its consideration of its safeguarding powers, or for its consideration of her mental capacity. It decided the safeguarding threshold was not met, and it did not have doubts about Mrs C’s capacity, so it did not have good reason to ignore her lack of consent for the needs assessment. The Council was at fault for a delay in responding to Mrs C’s niece’s complaint, but it has already apologised, so no further action is necessary.
- The complainant, whom I refer to as Mrs B, complains on behalf of her aunt, whom I refer to as Mrs C.
- Mrs B complains that, after the Council received a safeguarding referral suggesting Mrs C needed support, it spoke to her on the telephone and decided not to take any further action. She says that, if the Council had visited Mrs C rather than calling her, it would have realised she needed help.
- Mrs B says the Council’s failure to act contributed to Mrs C falling a couple of weeks later and breaking her hip. Mrs B visited Mrs C’s flat while she was in hospital and found that it was in poor condition. Mrs B says Mrs C’s fall could have been avoided of the Council had visited her and seen her flat.
- Mrs B also says there was a significant delay to the Council’s complaint response.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- I considered information from Mrs B and the Council. Both parties had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
What should have happened?
Adult safeguarding and assessment
- The Mental Capacity Act 2005 set out five statutory principles. One is that a person must be assumed to have capacity unless it is established that they lack it. Another is that a person must not be treated as unable to make a decision merely because they make an unwise decision.
- The statutory guidance accompanying the Care Act 2014 says a council must assess any adult who appears to need care or support. It says a telephone assessment can, in some circumstances, be a proportionate approach.
- The guidance says someone with possible care or support needs can refuse a needs assessment. If they do this, the council does not have to assess them. However, if the person lacks mental capacity and the Council thinks the assessment would be in their best interests, it should still do the assessment.
- Under section 42 of the Care Act, if an adult (with or without capacity) has care or support needs, is at risk of abuse or neglect, and is unable to protect themselves from that abuse or neglect, the council should make enquiries to decide if action is needed to ensure their safety. These are referred to as safeguarding enquiries.
- The statutory guidance includes ‘self-neglect’ within its definition of neglect. This includes when someone neglects to care for themselves or their surroundings.
- The Council’s own safeguarding procedures say that, when the Council receives a safeguarding concern, it will decide if the concern meets the threshold for a section 42 enquiry. If it does not, the Council will consider other Care Act duties.
- In early December 2019, the Council received a referral from Mrs C’s housing provider, raising concerns about her safety. It said she appeared confused. It said she left her door open when she went out, left her oven on, knocked on other residents’ doors early in the morning or late at night, and forgot conversations. It said there was mould on the ceiling of her flat, and the flat was very cold.
- Shortly after this, the Council’s safeguarding social worker called Mrs C to discuss the referral. She said she was totally independent and could manage all daily living activities (and gave examples). She also said she did not want to see her GP and did not want an assessment or any support from the Council.
- The Council wrote to the housing provider the same day and said its concerns did not meet “the s43 criteria for further Enquiry (Care Act 2014)”. It said Mrs C had refused a needs assessment.
- Less than a week later, Mrs C fell in her flat and was admitted to hospital. She had a broken hip and a chest infection.
- On 24 December, Mrs B complained about the Council’s lack of action earlier in the month. She said Mrs C’s flat was in a poor condition, and, if the Council had visited her rather than called her, it would have taken further action.
- In January the Council assessed Mrs C needs – with her consent – and decided she was eligible for support. The assessment document said there was evidence of short-term memory loss, and Mrs C would be referred to a clinic for this. However, it also said she did not appear to lack the capacity to make decisions about her care or support.
- Mrs C was discharged from hospital at the end of January 2020 with a care package in place.
- The Council responded to Mrs B’s complaint in early April 2020. It accepted its response was delayed, and apologised. It said it acted in line with its safeguarding procedures in considering the referral about Mrs C, and offered her a care assessment. However, she was entitled to refuse the assessment.
- The Council also said a home visit in early December may have led to a different outcome. However, it said it is often proportionate to contact people by telephone, rather than by visiting them, because of the number of referrals it receives.
- In response to my enquiries the Council accepted that it was at fault for how it dealt with Mrs B’s complaint. It said that it had registered the complaint as an adult social care complaint, but then re-registered and responded to it under its corporate complaints procedure.
- Although Mrs B disagrees with the Council’s decision to call Mrs C rather than to visit her, it was entitled to do this if it felt a call was a proportionate response to the referral.
- The Council acknowledges that, with the benefit of hindsight, a home visit may have led to a different outcome. However, this does not necessarily mean it was at fault for how it acted in response to the information it had at the time.
- The Council has explained why, in its view, a call to Mrs C appeared to be a proportionate response at the time, and why it considers calls to be proportionate in similar cases.
- As the statutory guidance allows councils to make telephone calls in response to referrals, and as the Council’s explanation for its decision does not appear obviously unreasonable, I cannot question the decision.
- Although the Council did not visit Mrs C, it was still under the duty to give some consideration to her needs, her safety, and her mental capacity.
- The Mental Capacity Act says people must be assumed to have capacity unless it is established they lack it. If a council has doubts about someone’s capacity to make decisions about their care, it should conduct a capacity assessment.
- The Council did not have such doubts about Mrs C in early December 2019, nor following its full needs assessment in January 2020. Because of this, I see no reason that it should have decided she lacked capacity, or that it should have disregarded her initial view that she did not want help. Mental capacity includes the capacity to make decisions which may appear unwise.
- If the Council suspects someone is at risk of neglect (including self-neglect), and cannot protect themselves from this, it should make further enquiries under section 42 of the Care Act, regardless of whether the person has mental capacity.
- The Council appears to have considered its powers under section 42. Although it referred to section 43, I am satisfied that it meant section 42 (given that section 43 was not relevant to Mrs C’s circumstances).
- The Council did not consider the referral to meet the section 42 threshold. This was the Council’s decision to make. I have seen no evidence to suggest that it was obviously unreasonable (particularly as Mrs C’s needs were subsequently met by a needs assessment rather than a safeguarding enquiry). Because of this, I cannot question the decision.
- Although the Council decided not to conduct a safeguarding enquiry, Mrs C clearly appeared to have care needs.
- The Council had a duty to offer an assessment, but Mrs C was entitled to refuse the offer. Given that, as set out above, the Council had no doubts about Mrs C’s capacity to make such decisions, it could not continue with the assessment without her consent.
- This means there was no fault with the Council’s decision not to proceed with the assessment in December 2019, with its consideration of its safeguarding powers, or with its consideration of Mrs C’s mental capacity.
- The Council was at fault for its delay in dealing with Mrs B’s complaint. It appears that this delay was caused by re-registering the complaint under the wrong procedure before responding. However, the Council has already accepted the delay and has apologised. Because of this, I do not consider further action necessary.
- The Council was not at fault for deciding not to assess Mrs C’s needs in December 2019, for its consideration of its safeguarding powers, or for its consideration of her mental capacity. The Council was at fault for a delay in responding to Mrs B’s complaint, but it has already apologised, so no further action is necessary.
Investigator's decision on behalf of the Ombudsman