Summary: MX complained about the Council’s response to complaints about care provided to their mother. MX says they suffered significant distress about their mother’s care and uncertainty about the outcome. We have found fault by the Council in some of its communication but consider the agreed action of an apology and further contact with MX provides a suitable remedy.

The complaint

1. The complainant, MX, complains the Council failed to provide a proper response to complaints about the care provided to their mother. These included:

• a social worker treating their mother brutally;
• being unable to report abuse relating to their mother to the Council using its procedures;
• the Council excluding them from correspondence about their mother’s care including not telling them about a changed meeting time and that it had moved their mother into residential care; and
• the Council including incorrect information in a deprivation of liberty safeguards form.

2. MX says because of the Council’s fault they suffered significant distress about their mother’s care and could not ensure their mother’s wishes were properly considered which may have avoided her being sectioned.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. If we are satisfied with an organisation’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

7. I read the papers provided by MX and discussed the complaint with them. I have also considered information from the Council. I have explained my draft decision to MX and the Council and considered the comments received before reaching my final decision.

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What I found

Background and legislation

Safeguarding

8. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

Mental Capacity Act

9. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

Mental capacity assessment

10. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make 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.

11. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
12. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

13. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
14. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

Best interest decision making

15. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
16. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Court of Protection

17. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
18. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection:

• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
• appoints deputies to make decisions for people lacking capacity to make those decisions;
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid; and
• removes deputies or attorneys who fail to carry out their duties.

Lasting Power of Attorney

19. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests. An attorney or donor must register an LPA with the Office of the Public Guardian before the attorney can make decisions for the donor.

What happened

20. MX’s mother has an enduring power of attorney from 2004 which appointed MX and their sibling to act with general authority to act jointly and severally on her behalf.
21. MX emailed the Council on 31 August 2023 to say they had been unable to attend a meeting about their mother due to the minimal notice of it being rescheduled. MX asked to be informed about the outcome of the meeting. The Council responded to MX the same day to confirm a further meeting had been arranged to assess their mother for some support with her care needs the following Monday. This email stated the social worker was happy to copy MX into any correspondence. MX replied the same day to ask for all correspondence about their mother to be sent to both them and their sibling and for a link for the Monday meeting so MX could attend remotely.
22. The Council has subsequently explained it needed to reschedule the time of the meeting and advised MX’s sibling of the earlier time. The Council did not advise MX of the revised timing but understood their sibling would do so. MX says their sibling did advise them of the rescheduled meeting time but not with enough notice for them to be able to attend. It is regrettable that MX was not able to attend the meeting. However, I do not consider any poor communication here would rise to the level of fault by the Council and it was not unreasonable in the circumstances for it to believe MX’s sibling would advise them of the changed time.
23. The Council completed an assessment at the following meeting. MX attended virtually. MX’s sibling was recorded as the main carer for their mother who had been self-funding a twice daily package of care at home. It was also recorded that day care at a residential home was discussed.
24. The Council has confirmed to the Ombudsman that a short-term residential placement was arranged directly with the residential home by MX’s sibling. The date of the short term respite was 17 September to 1 October when the placement became permanent. MX contacted the Council in mid-September to ask what measures had been implemented so their mother was able to stay in her own home as she wished. The Council confirmed a decision had been made with their mother for her to have a respite stay at a residential home and she had settled well. There is a note of a Best Interest meeting dated 20 September between the social worker, residential home manager and MX’s sibling. The recorded decision was to introduce MX’s mother to a respite residential setting with a view to having a permanent placement.
25. MX complained to the Council at the beginning of October about their mother’s social worker. MX was unhappy the social worker had rescheduled a meeting which they were then unable to attend; treated their mother brutally during an assessment which MX had recorded, was not copying them in on correspondence as agreed and did not advise them about their mother’s move to respite care. MX said their mother wished to move nearer to them but was frightened to voice her opinion.
26. The Council advised MX in early October that it had received a safeguarding concern about their contact with their mother and asked for their views on the concerns raised. MX telephoned the Council the following day. The Council’s record says MX spoke about interactions with their sibling about their mum and mentioned abuse. The matter was referred to the social worker to return MX’s call. The Council recorded a further call from MX the same day to say they did not want to speak to the social worker. The Council’s duty team attempted to telephone MX twice that day but it is recorded there was no reply and no provision to leave a message as the phone was switched off. The Council sent an email to MX to say an officer would telephone again the next day so they could detail the issues they wished to discuss. There is a note the following day to say there was no reply to a further telephone call to MX. MX has explained her telephone does not accept calls from withheld numbers.
27. MX made a further complaint to the Council in mid-October about the difficulties they had experienced in trying to report a case of abuse. This set out that when they had telephoned the Council they had been kept on hold for 20 minutes and then transferred to someone they thought was an abuse adviser but this was not the case. MX stated they had taken months to gather the courage to make the report but now no longer wished to do so as they felt unheard.
28. MX subsequently confirmed they were still willing to make their report to a suitable person who dealt specifically with reports of abuse. The Council confirmed towards the end of October that it would arrange the most appropriate person to telephone MX. A duty social worker telephoned MX but was unable to leave a message and followed this up with an email inviting a return call and provided their telephone number. The Council sent a further email to MX to explain it had not been able to contact them by telephone and provided the relevant contact details for MX to contact the duty team.
29. MX emailed the Council towards the end of October about a deprivation of liberty authorisation they had received which they stated was inaccurate and misrepresented their comments. This noted there was to be a Mental Capacity Assessment and Best Interests meeting to determine if it was in MX’s mother’s best interests to remain at the residential home or move to a care home where MX lived.
30. The Council emailed MX at the beginning of November to say their mother had been seen to complete a Mental Health Act assessment that day. There had been a recommendation to admit MX’s mother under section 2 of the Mental Health Act but there were no suitable beds. It had further been recommended to await the outcome of an alternative placement and a Best Interests meeting and response to medication before a final decision was made on compulsory detention. MX says they did not receive this email. I have reviewed the email and cannot say this was not received due to some fault by the Council. I also note the Council invited MX to a Best Interest meeting the following day via a teams call. MX attended the meeting.
31. MX telephoned the Council the following day. The Council recorded four attempts to return the call but obtained a busy signal with no facility to leave a message. MX has explained her telephone does not accept calls from withheld numbers.
32. MX has explained to the Ombudsman that their phone does not accept calls from withheld numbers and has disputed some of the timings. I cannot say the difficulties experienced in contacting MX was due to some fault by the Council and I am satisfied there were repeated attempts made to speak with MX by telephone. I do not consider it is proportionate to investigate further the timing of the recorded attempts in the circumstances of this complaint.
33. MX’s mother was admitted to hospital in early November under section 2 of the Mental Health Act 1983. MX’s mother was transferred to section 3 of the Mental Health Act four weeks later for treatment.
34. The Council contacted MX in November and discussed their concerns. The Council followed up with MX to confirm its understanding of their complaints. MX responded with some amendments.
35. The Council provided a response to MX’s complaints towards the end of November. The Council explained the time of the meeting had been changed by the social worker due to an unscheduled work-related emergency. The social worker had contacted MX’s sibling to explain the meeting would need to be rearranged to an earlier time and understood MX’s sibling would advise MX. The social worker had acknowledged her communication with MX’s mother was direct and clear with the aim to ensure she was provided with clear information to help her understanding. The Council confirmed the subsequent two week respite placement was agreed by MX’s sibling and information about the placement had been explained to MX by the social worker in an email of 19 September. There was a recorded Mental Capacity Assessment where MX’s mother was found to lack capacity around her residency and where her care and support needs should be met. A Best Interest decision was taken for MX’s mother to reside in a placement that allowed her to access 24-hour care and support which MX’s sibling agreed with, but it was recorded MX did not share this view. The Council confirmed the primary contact had been MX’s sibling and it was not unusual for the Council to have a main family contact who would be responsible for sharing information with other family members. The Council explained MX’s call to report abuse had been made to its Contact Centre and the team was trained to take initial referrals for social care. The call was transferred to the allocated Area Office for a colleague to take details and pass to an appropriate officer. The Council attempted to call MX back on several occasions but was unable to make contact. The Council was able to speak to MX on 17 November when they outlined their concerns about the social worker’s conduct. The Council apologised for the delay in responding to MX’s email about the content of the deprivation of liberty authorisation form. The Council explained its legal advice was that changes could not be made retrospectively to the form but the Council had attached MX’s email as an addendum to the form, so their views were recorded on their mother’s care record.
36. The Office of the Public Guardian confirmed to the Council in May 2024 that there was no lasting power of attorney, enduring power of attorney or deputy court order registered. The correspondence noted that an EPA did not need to be registered until the person who made it was losing or had lost mental capacity.
37. The Council has confirmed MX’s mother’s situation did not proceed for further Best Interest decisions due to her detention under the Mental Health Act. The Council says it would be reasonable to assume it would otherwise have sought legal advice regarding any ongoing concerns or disputes.
38. During the course of my investigation, the Council contacted MX to apologise for not requesting their recording relating to the conduct of the social worker and asked if they were happy to now share this. MX explained they wanted the Council to respond to the Ombudsman. The Council also asked if MX wanted to share their safeguarding concerns about their mother. MX explained the matter had been ongoing since the previous year and should have been addressed at that time. The Ombudsman does not have a blanket approach about such contact as there may be good reasons why a council would need to contact a complainant while we are investigating. However, we generally do not consider it appropriate for contact about the substance of the complaint or our investigation before a final decision has been issued. The Ombudsman has reminded the Council of our general position.
39. The Council has accepted there were occasions that it corresponded with MX’s sibling without copying in MX as agreed but highlights that communication was made with MX about the most important decisions. The Council has also accepted best practice would have been to email both MX and their sibling about the changed meeting time.
40. The Council has confirmed to the Ombudsman it would welcome the opportunity to review MX’s recording of the meeting and any safeguarding concerns they wish to make and take any necessary action.

My consideration

41. Based on the information provided, I consider there was some poor communication with MX which when taken together would constitute fault.
42. There was a delay in providing a response to MX’s complaint made at the start of October until the end of November. This original complaint highlighted MX’s concerns about their mother’s social worker rescheduling a meeting which they were then unable to attend; treating their mother brutally during an assessment which MX had recorded, not copying them in on correspondence as agreed and not advising them about their mother’s move to respite care. It is not clear why this complaint was not responded to at the time or why the Council did not seek a copy of the recording held by MX.
43. There also appears to have been some confusion about contact with MX during this period about the safeguarding concern received and their own report of abuse and formal complaint.
44. The Council has also accepted there were occasions that it corresponded with MX’s sibling without copying in MX as agreed.
45. I have noted that following MX’s subsequent complaints about how the Council dealt with their attempt to report abuse and about the content of a deprivation of liberty authorisation made in mid-October and the end of October respectively they did receive a response in November addressing all the issues they had raised.
46. During the course of my investigation, the Council also agreed to seek a copy of MX’s recording of the relevant meeting for review and to contact them about making their report of abuse.
47. The Council had already confirmed to MX that it had added their comments about the deprivation of liberty authorisation as an addendum to the relevant record. I consider this provides a satisfactory remedy for this element of the complaint and further investigation by the Ombudsman would not achieve a better outcome for MX.
48. I consider the action already taken or proposed above by the Council largely provides a remedy to MX’s complaint. However, although finely balanced, I consider the above when taken together will have caused MX avoidable uncertainty about how their views about their mother’s care and their mother’s wishes were being considered. I should make clear it is too speculative for me to say, even on a balance of probabilities, that the outcome would have been different.

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Agreed action

49. The Council has agreed to take the following action within one month of my final decision to provide a suitable remedy to MX:
1. write to MX to apologise for the avoidable uncertainty caused by its poor complaint handling and communication identified in my statement;
2. contact MX to ask for a copy of their recording of the meeting in which they say their mother was treated brutally;
3. review any recording provided by MX and advise them of the outcome within one month of its receipt; and
4. contact MX to provide the contact details of a suitably qualified officer and the opportunity to make a scheduled telephone appointment if MX still wishes to make a report of abuse.
50. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I have completed my investigation as I have found fault by the Council but consider the agreed action above provides a suitable remedy.

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Investigator's decision on behalf of the Ombudsman