Summary: Ms X complained about the care provided to Mr Y and the way the Council dealt with her complaint about this. Ms X says Mr Y and Mrs Y were a danger to each other and the Council did not safeguard them. Ms X felt unsupported and ignored by the Council at a time of crisis. We found the Council was at fault in the support it provided and the way it dealt with Ms X’s complaint. It has agreed to apologise and take action to avoid similar problems in future.

The complaint

1. The complainant, whom I shall refer to as Ms X, complained on behalf of her mother, Mrs Y, and her late father Mr Y. She says the Council:
• Failed to ensure Mr Y had adequate care to ensure he could live safely with Mrs Y.
• Did not deal with her complaint about this properly.
2. Ms X says Mr Y and Mrs Y were a danger to each other. The Council delayed dealing with the complaint and did not safeguard Mr and Mrs Y against domestic violence or provide any help. Ms X, Mr Y, and Mrs Y were unsupported at a time of crisis. Ms X felt ignored and marginalised by the Council. She was distressed by the situation and was caused a lot of time, trouble and inconvenience in pursuing her complaint. She would like the Council to recognise its failings and that remaining at home may not keep people safe. It should apologise and train its staff to communicate effectively with adults with complex needs, involving family members in key decisions. It should also improve its record keeping, services for self funders, and its complaint handling.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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. 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). In this case, we have exercised discretion to consider events back to 2019 because of the difficulty Ms X had in getting support for Mr and Mrs Y. This impacted on her capacity to raise complaints sooner.
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)
6. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

7. (Local Government Act 1974, section 26A(2), as amended)

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How I considered this complaint

8. I considered information from the Complainant and from the Council.
9. I will send both parties a copy of my draft decision for comment and will take account of the comments I receive in response.

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What I found

What happened

10. Mr Y and Mrs Y lived in their own home. Mrs Y had health conditions which caused her significant difficulties with mobility. Mr Y had a life limiting condition and, at times, behaved aggressively towards Mrs Y.
11. In December 2019, Ms X contacted the Council about a worsening of Mr Y’s behaviour. Following this, the Council noted that Mr Y was being neglected.
12. At the end of June 2020, Ms X wrote to the Council to say the situation had worsened and Mrs Y was not giving the Council information that truly reflected the situation at home.
13. At the end of July, Ms X wrote to the Council again. She referred to the deterioration in Mr Y’s behaviour and said that meetings and social worker contact in the past had not really achieved much. She understood that COVID-19 made it difficult to arrange a further meeting between adult social care and the mental health team. Mr Y had been violent towards Mrs Y on two dates in June and many in July. He had been wandering unaccompanied in the streets and brought home by police on one occasion. She explained that Mrs Y was unable to prevent Mr Y from wandering in the streets and struggled to care for him. The Council had known he was being neglected in December 2019 but nothing had been done and he had not received the care it knew he needed. Ms X asked the Council to assess them both to determine whether it was safe for Mr Y to remain in the home. If not, to take action to place him into care although Mrs Y would not consent to this.
14. The Council held a best interests meeting at the end of August. It agreed that it would be in Mr Y’s best interests for Mr and Mrs Y to move into a residential care home together. Ms X agreed to begin looking for a suitable place as they were self funding.
15. The following day Mr Y was violent toward Mrs Y and Ms X wrote to the Council saying she did not agree it was appropriate for them to live together in residential care. She said Mrs Y needed a face to face assessment as the telephone assessment was not adequate due to the circumstances of the case.
16. The Social Worker wrote back a few days later and said they had been unable to get a reply from Mr and Mrs Y when they had called to check. Safeguarding concerns had been forwarded to Mrs Y’s social worker who was on leave but would be back the next day. The Social Worker said they would have to consult Mrs Y about whether residential care together was appropriate. She suggested Ms X consider emergency respite care for Mr Y. The Council wrote to Ms X towards the end of August, and apologised for the delay responding. It noted that things had moved forward since Ms X’s letter and now Mr Y was to have a best interests assessment. It said if Ms X still wanted to raise this as a formal complaint, it would need Mrs Y’s consent. Ms X responded saying a best interest meeting should have been arranged a long time ago without her needing to make a complaint. She said she was surprised to be asked for consent since the Council had been happy to communicate with her about Mr and Mrs Y on other matters. However, she submitted Mrs Y’s consent. She also said the Council had known for some time that she wished to raise a formal complaint. Her email had been addressed to adult complaints and was headed “complaint”.
17. In early September, the Social Worker sent Ms X the NHS Continuing Healthcare checklist assessment. They said they would send the Care Act needs assessment next week so Ms X could share it with potential care providers. Ms X pointed out that Mrs Y should be the first point of contact, not Ms X. She said Ms Y was the next of kin and the decision maker. She also said she did not agree with the decision made at the best interests meeting. She thought Mrs Y had been conflicted at the meeting and her interests were not represented as her social worker was not present. Ms X was unhappy with the Council’s response to her initial email after the best interests meeting. She felt the Council was not doing enough to keep Mrs Y safe and also felt the Council had left too much for Ms X to deal with alone. Two days later the Council acknowledged Ms X’s complaint and apologised for the delay in responding to her original complaint. It said the Operational manager would investigate her complaint. Their findings would go to the Director of Operations for adult care services to provide a full written response and any recommendations. It said this would be complete by 9 October latest.
18. In November, Ms X raised a safeguarding concern around Mrs Y’s self neglect on the advice of a district nurse. The Council decided not to take this any further because Mrs Y had the mental capacity to make her own decisions about how she behaved. Mrs Y had been sleeping in her chair which caused pressure sores. Ms X wrote to the Council and said she thought Mrs Y did not understand what the Council said. She said she could not understand why the Council kept trying to close the case without resolving anything. Ms X said she believed an OT (occupational therapist) should see Mrs Y as soon as possible.
19. The Council advised Ms X it had asked the Principle Social Work Team to carry out a full review of how the Council dealt with Ms X’s concerns about Mr and Mrs Y. The Director of Operations said she would address as many of Ms X’s concerns as she could but would not address all her points. Ms X was unhappy about this and wanted all the points addressed.
20. In January, the Director of Operations wrote to Ms X to apologise for the delay and for not personally responding to correspondence about the concerns. The review was not yet completed due to COVID-19.
21. The Council gave its final response in April 2021 after the Principle Social Work Team’s review. It apologised for the time it had taken to respond to Ms X’s concerns. It agreed it had unacceptably delayed dealing with her complaint in late July 2020 and apologised for this. It said the Council could have made more effort to keep Ms X informed and accepted that it could have managed the case differently. It noted that Mrs Y had not been able to meet some of the needs that she had said she could manage independently and it could have done more to address this risk. It also said that Mr and Mrs Y’s self funding status should not have affected the service they received. Since Mr Y had moved into a residential care home, the Council had considered the risks of Mrs Y’s self neglect through a safeguarding enquiry following the recommendation of the Principle Social Work Team. It subsequently allocated an experienced social worker and supported Mrs Y to move to a residential home The Principle Social Work Team recommended additional training for staff about forming a team around more vulnerable members of the community. It said it intended to partner with the local safeguarding board to explore this in greater detail. Ms X was happy with the review but remained dissatisfied with other aspects of her complaint.
22. In July 2021, Ms X responded that her complaint had been about Mr Y but the Council’s response was about Mrs Y; Mr Y was not mentioned. Mrs Y was not supported by the Council at the time of the complaint, but Mr Y was, and he lacked capacity in many respects. She said as she was Mr Y’s representative, Ms X’s consent was sufficient to complain. Mrs Y’s consent was unnecessary and delayed the process. Consent was also unnecessary as Ms X was an affected person and was eligible to complain in her own right.
23. Ms X says she hopes the Council will prevent Mrs Y returning home as she is considering doing this and the Council has assessed her as needing 24 hour care. Mr Y has sadly died since these events.

Was there fault which caused injustice?

24. Ms X’s complaint was initially clearly about Mr Y and ensuring he got the care he needed. The Council was at fault for not responding to these concerns. It was understandable that the response did not address each of the many points made in the complaint, but it should have addressed those about Mr Y. Even though, by the time it gave its final response, Mr Y was in a residential care home, it still needed to consider the complaint about its actions prior to that. The Council would not have been at fault for requiring Mrs Y’s consent because it believed some of the complaint was about Mrs Y. But the consent it requested from Mrs Y was for a complaint on behalf of Mr Y. This was fault because Ms X did not need Mrs Y’s consent to raise a complaint on behalf of Mr Y because she was Mr Y’s representative. She was also an affected person. This also meant it did not have Mrs Y’s consent to consider a complaint on her behalf.
25. The Council was also at fault because of the significant delays. This meant it did not consider issues which had significant implications for Mr and Mrs Y. Mr Y continued to be neglected, and be violent towards Mrs Y. This caused them both an increased risk of harm and caused Ms X much avoidable frustration, stress, time and trouble. Once the complaints team was alerted to the complaint, there should have been a mechanism by which the relevant manager was alerted to the ongoing issues. Sadly, we are unable to remedy the injustice caused to Mr Y as he has since died.
26. When the Council eventually considered the complaint, it took suitable action and responded appropriately albeit missing the issues about Mr Y. The review by the Principle Social Work Team made some helpful recommendations. Although the response did not deal with the issues from Mr Y’s perspective, this did not add to the injustice to Mr Y since he was already in residential care. The injustice it caused Mr Y occurred prior to this.
27. In respect of Ms X’s wish for the Council to prevent Mrs Y returning home, this depends on whether Mrs Y has the mental capacity to decide to do this. The Council should not prevent her from doing so if she has the mental capacity to decide to do this. It could support her in understanding her options and the risks of such actions, but it should not go against her decision, even if it is unwise.

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Agreed action

28. To remedy the injustice identified above, I recommended the Council:
• Apologise to Ms X and Mrs Y for the injustice it caused, setting out the faults identified above and the actions it has taken and will take to avoid similar faults in future.
• Ensure all frontline staff and their immediate managers receive full training, or refresher training, in:
1. communicating with adults and their families or representatives. This should include understanding who should be involved in which discussions or decisions, and when they must be involved. For example, someone with a relevant power of attorney and with capacitated and incapacitated individuals.
2. Services for self funding people, for example, what must the Council do, what else does it offer.
3. Complaint handling, including recognising a complaint, identifying safeguarding concerns, alerting relevant managers, being clear about the key issues.
4. Consent and when it is needed and not needed.
5. Review its complaint handling procedures to ensure complaints involving ongoing risks to individuals are dealt with promptly.
29. The Council has agreed to these actions.

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Final decision

30. I have completed my investigation and uphold Ms X’s complaint that the Council:
• Failed to ensure Mr Y had adequate care to ensure he could live safely with Mrs Y.
• Did not deal with her complaint about this properly.

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Investigator's decision on behalf of the Ombudsman