Summary: The Council was not at fault for not involving Mr X in the decision to move his mother into residential care. The Council was not at fault for how it investigated safeguarding concerns about Mrs Y’s care, however the Council was at fault for recording its opinion of Mr X’s mental state on the safeguarding records. The Council has already provided an appropriate remedy for any injustice caused.

The complaint

1. Mr X complains the Council decided to move his mother into residential care against her wishes and without involving him. He also complains the Council failed to properly investigate safeguarding concerns he raised about his mother’s care.

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The Ombudsman’s role and powers

2. 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)
3. 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)
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. As part of this investigation I considered the complaint made by Mr X. I also considered the information provided by Mr X. I made enquiries with the Council and considered the information provided in response. I sent a draft of this decision to Mr X and the Council and considered comments received in response.

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What I found

6. The Mental Capacity Act 2005 and Code of Practice sets out the principles for making decisions for adults who lack mental capacity.
7. A person lacks mental capacity to make a decision if they have a temporary or permanent impairment or disturbance of the brain or mind and they cannot make a specific decision because they are unable:
• To understand and retain relevant information or
• Weight that information as part of the decision-making process or
• Communicate the decision (whether by talking using sign language or other means.) (Mental Capacity Act, section 3)
8. An assessment of a person’s mental capacity is required where their capacity is in doubt (Code of Practice, Paragraph 4.34)
9. A person must be assumed to have capacity to make a decision unless it is established 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. (Mental Capacity Act 2005, sections 1 and 2)
10. A Lasting Power of Attorney (LPA) gives the attorney legal authority to make decisions about health and care on behalf of a loved one, but only if they can’t make decisions themselves. If a person has mental capacity to make a decision, then the attorney cannot make it for them.
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. Mr X’s mother, Mrs Y, used to live with him. In 2016 Mr X and his three siblings secured Lasting Power of Attorney (LPA) for Mrs Y. In 2017 Mrs Y was diagnosed with Alzheimer’s disease.
13. In March 2019 Mrs Y went into hospital in another local authority area. Upon being discharged Mrs Y went to live with her other son, Mr Z, for a week. Mrs Y then returned to her home with Mr X. Shortly after Mrs Y was admitted to hospital after suffering a stroke. After Mrs Y was discharged from hospital back to her home she was re-admitted to hospital a few days later after being found on her bedroom floor soaked in urine. Mr X said she was diagnosed with a fractured spine which the hospital missed previously.
14. When in hospital Mrs Y asked to go and live with Mr Z and said she did not want to live with Mr X. Mr X believes this was because her medication was causing her to become confused. While in hospital Mrs Y was assessed to have capacity to make decisions about her care. At a discharge planning meeting Mrs Y decided to live with Mr Z.
15. In early April 2019 Mrs Y moved in with Mr Z. Mr X said he was not allowed to visit Mrs Y. Mr X also said Mr Z moved £6,000 from Mrs Y’s bank account into his own.
16. In June 2019 Mr X raised safeguarding concerns to the Council concerning Mrs Y. Mr X said Mr Z was emotionally and financially abusing their mother. He also said Mr Z pressured Mrs Y to live with him and feels she did not have capacity to make this decision. In addition Mr Z transferred money from a joint account Mrs Y and Mr X shared.
17. The Council opened a safeguarding alert and progressed this to stage two. As part of the safeguarding investigation the Council met with Mrs Y several times who made it clear she was happy where she was living and wanted to remain with Mr Z. Mrs Y also told the Council she did not wish to see Mr X. The police also visited Mrs Y and the Council sought their views. The Council also spoke with neighbours and day care staff but were unable to find evidence to support Mr X’s concerns.
18. The Council closed its safeguarding enquiry in late July 2019 as it had not found evidence to support Mr X’s allegations and did not consider Mrs Y was at risk of harm.
19. In July 2019 Mrs Y sought legal assistance to remove Mr X and one of her other sons from the LPA she had in place with her four children. Mr X appealed this decision with the Office of the Public Guardian (OPG), however the OPG upheld Mrs Y’s wishes and Mr X was removed from the LPA.
20. In December 2019 the Council carried out a care needs assessment of Mrs Y as her condition had deteriorated. The Council also carried out a mental capacity assessment and found Mrs Y did not have capacity to make decisions about her care arrangements.
21. Following a best interests decision the Council assessed Mrs Y as requiring residential care. Mrs Y subsequently moved into a care home.

Mr X’s complaint

22. Between March 2020 and July 2020 Mr X raised concerns with the Council about his mother’s care with Mr Z. He raised concerns about how the Council had investigated his concerns. Mr X said Mr Z had been abusive towards his mother and was controlling her. He complained the Council had allowed Mr Z to take Mrs Y’s money. Mr X also raised concerns about the decision to move Mrs Y into a care home without consulting him. He said he cannot visit her in the home.
23. The Council provided its final response to Mr X on 9 November 2020. The Council said it investigated the decision to move Mrs Y into a care home and told Mr X the documentation on file shows the Council followed the appropriate process. In relation to his complaint about how the Council handled safeguarding concerns, the Council said it reviewed all the safeguarding documentation and the records show Mrs Y decided where she wished to live.
24. Following this complaint Mr X made a further complaint to the Council about how the Council’s investigating officer who carried out the safeguarding investigations had referred to his mental state in the Council’s notes and safeguarding record. Mr X complained after receiving copies of extracts from the safeguarding enquiry document.
25. The Council responded to say the opinion the investigating officer recorded about Mr X was not appropriate and the Council had spoken to the officer concerned. The Council apologised to Mr X for any distress these comments caused and agreed to remove them from the safeguarding records.

Analysis

26. I have not found the Council at fault for the way it handled the safeguarding investigation into the allegations made by Mr X about Mr Z’s care of Mrs Y. The Council has provided evidence to show it adequately investigated Mr X’s allegations.
27. While I cannot go into all the specifics of the investigation as much of this is third party information which I do not have permission to share with Mr X, the investigating officer did speak with Mrs Y to seek her views about the allegations. The investigating officer also spoke with witnesses Mr X suggested he speak with. The police visited Mrs Y and the investigating officer discussed the concerns with the police.
28. After carrying out its investigations the Council did not find evidence to support the allegations Mr X made and closed the safeguarding enquiry.
29. The Council was at fault for the way the investigating officer recorded opinions about Mr X’s mental state on the safeguarding enquiry notes. The Council has recognised this and apologised to Mr X. The Council also agreed to remove these comments from the record. I am satisfied this is an appropriate remedy for any injustice caused to Mr X and I cannot add anything further.
30. In relation to Mr X’s complaint about moving Mrs Y into a care home the Council’s position is it did not have to consult with him as he did not hold LPA at the time this decision was taken. The records show Mrs Y sought to remove Mr X as a LPA in July 2019 and was successful in doing so. At the time the decision was taken to move Mrs Y into residential care, the Council assessed Mrs Y as not having capacity to make decisions about her care, meaning this would be decided by those with LPA. At this time Mr X did not hold LPA for Mrs Y as he had been removed. I am satisfied the Council was not at fault for not involving Mr X in this decision.

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Final decision

31. I have completed my investigation and found the Council was not at fault for not involving Mr X in the decision to move Mrs Y into residential care. The Council was not at fault for how it investigated safeguarding concerns about Mrs Y’s care, however the Council was at fault for recording its opinion of Mr X’s mental state on the safeguarding records. The Council has already provided an appropriate remedy for any injustice caused to Mr X.

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Investigator's decision on behalf of the Ombudsman