Summary: The Council has already upheld the complaint that there was fault in the care provided to Mr D and this fault has been remedied. There was no fault in the way the Council decided whether to invite Mr C to a meeting with Mr D and its communications regarding this.

The complaint

1. Mr C complains on behalf of his brother-in-law, Mr D who has sadly passed away. He complains about the care provided by Agincare agency in Stevenage.
2. Mr C also says the Council should have invited him to a meeting it held with Mr D and that the social worker lied to him about asking Mr D whether Mr C should attend the meeting.

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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 investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), 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 have discussed the complaint with Mr C. I have considered the documents that he and the Council have sent, any relevant law, guidance and policies and any comments on the draft decision.

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What I found

Mental Capacity

7. The Mental Capacity Act 2005 and the Code of Practice 2007 are the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves.
• Lack of capacity means a person lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken. A person may lack capacity to make some decisions, but may have capacity to make other decisions.
• The Act says a person must be presumed to have capacity unless it is established that he does not.
• Any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
8. A Lasting Power of Attorney (LPA) is a legal document, which allows a person to choose one or more persons to make decisions for them, when they become unable to do so themselves.
• Property and Finance LPA – this gives the attorney the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.
• Health and Welfare LPA – this gives the attorney the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live. This LPA can only be used when a person lacks capacity to make their own decisions.

What happened

9. Mr D was an elderly man who lived in an extra care housing flat. He had dementia and was frail. He used a wheelchair and needed assistance from care workers in most aspects of daily life. The Council provided a package of support with carers visiting Mr D four times a day.
10. Mr C held an LPA for health and welfare for Mr D registered on 5 May 2021.

Incident – 6 April 2021

11. Mr C visited Mr D on 6 April 2021 and saw that Mr D’s catheter bag had not been emptied and the bandages around his leg had come undone. Mr C took a photograph as evidence and made a complaint to the Agency.

Admission to hospital – April 2021

12. Mr D was admitted to hospital on 7 April 2021 following a fall.

Reply to complaint – 27 April 2021

13. The Agency replied to Mr C’s complaint on 27 April 2021. The manager said that the care worker had made an error as she had not checked Mr D’s care plan and did not know he had a catheter. The manager said this was ‘wholly unacceptable’ and the care fell below the care standards it expected from the staff. The care worker had been given additional training. The manager apologised unreservedly for the mistake.
14. Mr C spoke to one of the social workers at the hospital on 26 April 2021 and showed her the photographs of Mr D’s leg which he took on 6 April 2021. He said he was not satisfied with the care that the Agency was providing.

Meeting with Mr C – 29 April 2021

15. Mr C had a meeting with a different social worker on 29 April 2020 and showed her the photograph. Mr C said he had raised this with the Agency directly and the Agency had admitted its mistake and apologised. Mr C said he was not satisfied with the Agency’s response and he wanted this officially raised. The social worker pointed out that Mr D no longer had a catheter but agreed to make a safeguarding referral.
16. The social worker went to speak to Mr D and asked him whether he was satisfied with the care provided by the Agency. Mr D said he was, although there were a few carers who were not as good as the others. Mr D agreed that the Council could investigate the incident with the catheter.
17. The Council decided to start a safeguarding enquiry relating to the incident on 30 April 2021.
18. Mr D returned home on 30 April 2021.
19. Mr C had a number of falls in the following days. This raised further concerns whether Mr C could continue to live alone at home.

Strategy meeting – 18 May 2021

20. The Council held a strategy meeting regarding the safeguarding enquiry on 18 May 2021 which Mr and Mrs C attended.
21. Mr C said he had noticed a positive change in the Agency’s work since he had raised the concern about the catheter.
22. The safeguarding enquiry plan was:
• The Agency’s manager would investigate the allegations by reviewing the records and logs and establish neglect or omission by the carers. The report was to be completed by 18 June 2021.

Hospital – 20 May 2021

23. Mr D was admitted to hospital on 20 May 2021 and was ready for discharge on the same day. The social worker told Mr C she would visit Mr D on 21 May 2021. She told him that the extra care housing placement felt that they were no longer able to meet Mr D’s needs so she had to assess Mr D’s needs. She said she would update Mr C after her visit.
24. Mr D’s discharge from hospital was delayed because he complained of pain in his leg. The delay meant that the meeting on 21 May 2021 could not go ahead.

Return home – 21 May 2021

25. Mr D returned home on 21 May 2021.
26. In the following days, the problems escalated as Mr C’s leg hurt every time the care workers tried to move him which meant he could not be moved.

Conversation with Mr D – 24 May 2021

27. The social worker rang the extra care housing (ECH) manager. The ECH manager said Mr D’s mobility had declined and he was unable to mobilise.
28. The social worker asked the manager to visit Mr D and ask him whether he was happy for the social worker, a social worker student and the Agency’s manager to visit him that afternoon ‘to discuss his care and support needs and his falls and the safeguarding incident’. The manager should also ask Mr D whether he wanted Mr C to be present as well.
29. The manager rang back half an hour later and said Mr D was happy for the visit that afternoon to go ahead. She said Mr D did not want Mr C present ‘as long as they don’t prod and poke me.’

Incident – 24 May 2021

30. The social worker, the student social worker and the Agency’s manager visited Mr D that afternoon. When they arrived at Mr D’s home, an NHS OT was also present. The OT said two physiotherapists had visited Mr D that morning and were concerned as Mr D could not move because of the pain in his leg.
31. The professionals tried to find solutions to enable Mr D to receive care when it was impossible to move him. Mr D was in his recliner and, when they tried to move him, he cried out in pain.
32. The social worker suggested that Mr D should go into temporary respite accommodation. Mr D initially agreed to go into respite and then changed his mind.
33. Social worker 2 then rang Mr C to explain what was happening. The social worker had a conversation with Mr C. The social worker said Mr C’s tone was aggressive. The social worker said she explained to Mr C that the ECH manager had seen Mr D that morning. Mr D confirmed to the manager that he did not want Mr C to be present when the social worker visited, but Mr C called her a liar.
34. Mr and Mrs C then arrived at the meeting. The social worker said Mr C called her a liar. The social worker said she asked Mr D whether she had been badgering him and he said; ‘No, you have been fine. I just want to stay here and I will be ok.’ The social worker was then made aware that Mr C was recording the meeting and she left the meeting.

Complaint – 24 May 2021

35. Mr C complained to the Council on the same day about the incident on 24 May 2021. I have summarised the complaint correspondence. Mr C said:
• Mr D had a right of representation and Mr C had made it clear to the social worker that, if she was having a meeting with Mr D, she should ask him whether he wanted Mr C to attend.
• The social worker rang him from Mr D’s flat. He asked her whether she had asked Mr D whether Mr C should be present. She said she had and Mr D had said he did not want Mr C to attend.
• He went to Mr D’s flat and asked Mr D whether the social worker had asked him whether he wanted Mr C present and Mr D said she had not. He said he asked Mr D if he was happy for Mr C to be there and Mr D said he was. The Agency’s manager then reminded Mr D that the ECH manager had asked him that morning whether he wanted Mr C to be present.
• Mr C questioned whether Mr D had the mental capacity to decide who should attend the meeting or make decisions about his care and support.
• Mr C was concerned that the social worker, who was involved in the safeguarding enquiry, was at the same meeting as the manager of the Agency which was the subject of the safeguarding enquiry.

Response to the complaint – June 2021

36. The Council responded to Mr C’s complaint and said:
• The social worker had no doubt that Mr D had the mental capacity to make decisions about his care and support or whether he needed a representative at the meeting.
• Mr D had told the ECH manager that he did not want Mr C to be at the meeting.
• Mr C’s behaviour at the meeting was unacceptable.
• The purpose of the meeting was to review Mr D’s care package and the Agency’s manager needed to be present. The social worker did not speak to Mr D or the Agency’s staff about the safeguarding concern.

Escalation of complaint – June 2021

37. Mr C escalated his complaint and said:
• Social worker 2 had lied to him as she had said ‘yes’ when asked whether she had asked Mr D whether he wanted Mr C present at the meeting. This was not true as it was the manager who had spoken to Mr D
• Mr D had been assessed as lacking capacity on previous occasions.
• He questioned whether the Council had completed the necessary care plan when Mr D was discharged from hospital.
• The only reason the four women were there was to ‘suggest, corral or even bully’ Mr D into going into a care home.
38. Sadly, Mr D passed away in July 2021. The Council did not provide a further response to Mr C’s complaint except to say that it upheld its original complaint.

Conference – 8 October 2021

39. The Council had an adult safeguarding conference on 8 October 2021. The Agency’s manager said she was unable to provide the report. Mr C questioned how, after six months, the report had still not been completed. The meeting was rescheduled.

Conference - 28 October 2021

40. The safeguarding enquiry was concluded:
• Allegation – organisational: substantiated.
• Allegation – neglect and acts of omission – unsubstantiated.
41. The following lessons were learned:
• Retraining of staff. Staff to be reminded to refer to the care plan at all calls.
• Understanding to raise a safeguarding concern when a service user is at risk of abuse or neglect.
42. Mr D was not satisfied with the outcome of the enquiry. He said that if a member of staff failed to do their job, then they should be dismissed.

Analysis

Care provided by the Agency

43. The Agency failed to provide appropriate care on 6 April 2021 as the care worker failed to empty Mr D’s catheter, putting him at risk. This was fault.
44. The Agency upheld this complaint and apologised in writing to Mr C. Mr C agreed that, after he made the complaint, the Agency’s service improved.
45. The Council carried out a safeguarding enquiry and upheld the complaint about the catheter not being emptied on 6 April 2021. I agree with Mr C that there was a delay in the enquiry and matters could have concluded earlier. However, I do not think Mr D suffered any injustice as a result of this delay. Mr C agreed that, after he put in his complaint on 6 April 2021, the Agency’s service to Mr D improved.

Incident on 24 May 2021

46. The social worker said Mr D had the mental capacity to make decisions about his care and support and who he wanted to attend at the meeting. Mental capacity is time and decision specific so the fact that Mr D had been assessed as lacking capacity at a previous time for a different decision would not, automatically mean that he lacked capacity at a later date.
47. There is evidence that Mr D was asked whether he wanted Mr C to attend the meeting in the afternoon and he said he did not. Therefore, the social worker could go ahead with the meeting without Mr C.
48. Mr C said the social worker lied to him as she told him she had spoken to Mr D to ask him whether he should attend the meeting whereas it was the manager who did so.
49. I find no fault in that respect. I appreciate that it was not the social worker herself who asked Mr D the question, but there are many ways the word ‘you’ could have been interpreted in a crisis situation. The ‘you’ could be the Council, the professionals as a group and so on. The important point was that Mr D had been asked whether Mr C should attend and he had said no.
50. I do not uphold the complaint that the four professionals who were at the meeting were trying to bully Mr D into going into a care home. There was a genuine concern amongst the people involved in Mr D’s care (the social worker, the Agency’s manager and the ECH manager) that his needs could not be met at the ECH placement, and certainly not in the short term as he was immobile.
51. The social worker respected Mr D’s decision not to move into a respite care, despite the fact that all the professionals were of the view that he should go into respite care. Mr D stayed in his flat (in the short term) despite the identified risks.
52. Mr C also complained that it was inappropriate for the Agency manager to be at the meeting as she was the subject of the safeguarding enquiry. I find no fault in the Agency’s manager’s presence at a meeting to agree Mr D’s care plan. I agree that it would be difficult to make a decision about Mr D’s care without the relevant agencies involved. If the agencies were not able to meet Mr D’s needs, then this would affect his care plan.
53. The Council said in its complaints response that the social worker did not speak to the manager about the safeguarding issues as the meeting was held to address the immediate concerns about Mr D’s care package.
54. The second part of that sentence is not entirely correct. The social worker stated on 24 May 2021 that the purpose of the meeting was to discuss both the care package and the safeguarding incident. But I agree with the Council that the safeguarding incident was not discussed.

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Final decision

55. The Council has apologised in writing for the fault relating to the care that was provided. I have not found fault causing injustice in relation to the other complaints Mr C made.

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Investigator's decision on behalf of the Ombudsman