The Ombudsman's final decision
Summary: Ms D complained about the Council’s decisions around her father’s care arrangements and its handling of her safeguarding concerns. We found no fault in the processes the Council followed to reach its views. It therefore reached decisions it was entitled to make. Also, parts of the safeguarding process are still ongoing and there are limits to the information the Council can share with Ms D.
The complaint
Ms D complained on behalf of herself and her father (Mr X) about the Council’s handling of her concerns about his care arrangement. She said it failed to: to provide respite care for her father and an adequate response to concerns about the impact the care arranged had on her brother; manage the care review assessment process appropriately and allowed family members to manipulate the process; act on her safeguarding concerns relating to extended family members, and protect her and her bother from harassment and abuse from the family members; and failed to follow its complaints procedure.
Ms D said, as a result, she and her brother had experienced distress and lost trust in the Council’s ability to support Mr X if they stopped supporting him.
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 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) 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) 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)
What I have and have not investigated I have investigated Ms D’s complaint from March 2023 until the Council’s final complaint response in November 2023, including the injustice she says she has experienced.
I have not investigated Ms D’s complaint relating to the impact the Council’s actions had on her brother. This is because we do not have consent for her to act on his behalf.
How I considered this complaint
As part of my investigation, I have: considered Ms D’s complaint and the Council’s response; discussed the complaint with Ms D and considered the information she provided; considered the information the Council provided in response to my enquiries; and had regard to the law, guidance and policy relevant to the complaint.
Ms D and the Council now had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law, guidance and policy Care Act assessments Sections 9 and 10 of the Care Act 2014 says councils must carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
The Care Act 2014 says councils must provide a care and support plan. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area.
Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
Mental capacity 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.
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.
Safeguarding 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) It is the Council’s policy for a Multi-Agency Safeguarding Hub (MASH) to consider the referrals it receives about safeguarding concerns about adults. It will consider whether further enquiries or action are needed for adult individuals who are or at risk of experiencing neglect or abuse but is unable to protect themselves.
Court of Protection The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
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. It can: decide whether a person has capacity to make a particular decision for themselves; make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions; appoint deputies to make decisions for people lacking capacity to make those decisions; decide whether a Lasting Power of Attorney or Enduring Power of Attorney is valid; and remove deputies or attorneys who fail to carry out their duties.
What happened Ms D’s father (Mr X) has been diagnosed with health conditions which impacts his ability to meet some of his care and support needs. Following a previous hospital discharge, he lived in a care home. He moved back home with a privately arranged care package from a care provider.
Ms D is Mr X’s deputy for property and finance.
In 2023 Ms D asked the Council to complete a care needs assessment for Mr X. She said he should be placed in residential care. She said her brother had been living with Mr X and provided support. This was impacting their relationship and her brother was moving out as a result. Ms D said she had primarily provided remote support for Mr X.
In April 2023, the Council completed its review of Mr X’s care needs. The assessment shows it: visited Mr X to obtain his and his carer’s views. His wishes were and continued to be to remain in his home with his existing care package. The Council also considered Mr X’s capacity around making decisions regarding his health and welfare. It found he lacked some capacity but demonstrated some level of planning and executive functioning; considered Ms D’s views, which was for Mr X to be placed in a residential care home. She shared concerns he could be a risk to others, and other family members were manipulating Mr X and a bad influence. She disagreed their views should be considered; considered Ms D’s brother’s view, and other family members views who had regular contact and visits with Mr X. The assessment acknowledged Ms D’s relationship with other family members were challenging and they disagreed about how Mr X levels of care needs and where he should live; considered Mr X’s medical records and financial circumstances; and found Mr X had eligible care needs, but his savings was above the threshold for Council funded support. He should remain in his home with his existing private care package as a residential care home would be restrictive and disproportionate to his identified needs and wishes.
In Summer 2023 Ms D continued to raise her concerns and disagreements about Mr X’s care arrangements in his home. She said her brother was moving out and she had started the process to no longer be Mr X’s deputy for property and financial affairs. She said the Council’s March recent assessment had failed to properly consider her safeguarding concerns about Mr X and other family members abuse and behaviour towards her and her brother, and the risks she believes Mr X poses to others.
In August 2023, Ms D complained to the Council as she did not get a response to her concerns. Her complaint included the Council had failed to acknowledge her and her brother’s withdrawal of care. She said Mr X needed respite care, so he was properly cared for.
In response to Ms D’s complaint the Council arranged a new care assessment for Mr X to be completed by a different social worker. It completed the assessment in October 2023. It also set out how some risks could be managed by assistive technology. The outcome was the same as the April 2023 assessment. However, as Ms D had informed the Council his savings were depleting it shared information about the financial assessment process and forms for her to complete as she remained his deputy for property and financial affairs.
Ms D again disagreed with the Council’s assessment and said it had failed to seek the views of medical professionals. She said his care package at home was not practical or affordable in the long term and had not worked well for Mr X, and he had been missing medical appointments. She felt Mr X was not competent to make decisions around his care needs and he had been diagnosed with a new health condition which impacted his care and support. She also said she, her brother and the carer has been subjected to ongoing abuse and harassment from other family members.
The Council responded to Ms D’s complaint in November 2023. It apologised for the delay which was due to a manager’s oversight. It did not uphold her complaint and explained: it acknowledged Ms D and her brother had stopped supporting Mr X. However, it found his privately arranged care package was meeting his needs as set out in its assessments. It found his carer could support Mr X with receiving his weekly shopping, and had been registered to attend medical appointments with him; it understood Mr X’s funds were depleting. It had therefore shared its financial assessment forms and process with Ms D, but she was yet to respond to this; Ms D had informed the Council about a recent new health diagnosis for Mr X which may mean he had increased care needs. It would arrange for a social worker to review his needs. Its social worker would consider this and Mr X’s long-term care and support plans; and its assessment had found Mr X had capacity to share where he wanted to live. This was and continued to be in his home. It could not comment on any capacity assessments carried out by another public body. It explained if Mr X was found not to have capacity, it would make a best interest decision.
Ms D asked the Ombudsman to consider her complaint.
Analysis and findings Mr X’s care and support Ms D disagrees with the Council’s view Mr X’s needs can be met through his existing privately arranged care package in his home.
I have considered the process the Council followed to assess Mr X’s care and support needs in 2023. I have not found the Council at fault in how it reached its views, it therefore reached decisions it was entitled to make. This is because it: considered the views of Mr X, Ms D, her brother, other family members who were involved with his day-to-day life, and views of the carer and care agency. It also considered Mr X’s medical records through a shared system which included information from his GP; conducted two visits to Mr X to assess his abilities and needs following Ms D’s concerns about his care support and living arrangements. This shows it did consider her concerns. It also arranged for a different social worker to complete the second assessment to gain another opinion; and found he had capacity to share his views around his health and welfare. It also found he had eligible support needs, but these could be met through his existing privately arranged care package. It considered whether Mr X should be placed in a care home but found this would be disproportionate and restrictive compared with his assessed needs.
I acknowledge Ms D disagrees with the Council’s decision and other family members views of his needs and where he should live. However, without fault in the process the Council followed, I cannot criticise its decision.
Also, I understand Ms D believes other family members should not have been involved in Mr X’s care assessments. However, it is for the Council to decide who should be involved. It found the family members were actively involved in Mr X’s day-to-day life, it was therefore appropriate to obtain their views before it reached its decision.
If Ms D disagrees with the Council’s assessment of Mr X’s capacity she can ask the Court of Protection for its view, which is the appropriate body to reach such decisions.
Respite care I understand Ms D had concerns about respite for Mr X, the carer, and for Mr X’s care arrangement when she and her brother stopped their support.
The Council would not be expected to arrange respite care for Mr X as he has a privately arranged care package in his home, which is where he wanted to be.
It is for the carer and care agency to raise any concerns with the Council about arranging respite care if it is unable to provide the carer a break, I cannot consider Ms D’s concerns on their behalf. I understand this is a recent concern which the Council is liaising with the care provider about.
The Council told Ms D it was aware she had intending to cease her deputyship for property and financial affairs and her brother had moved out of Mr X home. However, Ms D and her brother was not set to provide any of the identified care support in Mr X’s care plan. This was all to be provided through the privately arranged care package. It was therefore not required to complete a carer assessment or respite for them.
Safeguarding concerns Ms D raised safeguarding concerns to the Council regarding Mr X’s risks towards others, other family members impact on Mr X’s wellbeing, and other family members behaviour towards her and her brother.
I have not found the Council at fault for how it handled the safeguarding process. The evidence shows the Council followed its policy to: log her concerns about Mr X risk to other and other family members risks towards Mr X, and involved the Multi Agency Safeguarding Hub (MASH). I understand this case remains open; and found Ms D and her brother did not have care and support needs. It could therefore not consider their concerns about the impact other family members behaviour and allegations had on them. It explained this was a private matter and could be reported to the police.
However, as Ms D is not Mr X’s deputy for his health and welfare, and Mr X has been found to retain capacity, there are limits to the information the Council could share with her regarding its safeguarding enquiries.
I would not expect the Council to provide running updates, but once the MASH has completed its consideration of Ms D’s concerns it should provide any relevant update that it finds appropriate to share with her.
Complaints handling The Council agreed it had caused delays in the complaints handling for Ms D’s complaint. It apologised and explained this was due to an oversight by its manager. This was fault, however as I have not found fault on other part of the complaint, I am satisfied its apology was enough to remedy the injustice this caused her.
Final decision
I have completed my investigation with a finding of no fault on the substantial matters complained about.
Investigator's decision on behalf of the Ombudsman