The Ombudsman's final decision
Summary: Miss X complained on behalf of her friend and neighbour, Mrs Y. Miss X complained Mrs Y had been badly treated by social care. Miss X is concerned the Council failed to support or safeguard Mrs Y or take account of her wishes. Miss X says this affected Mrs Y and her own emotional wellbeing. The Council was not at fault.
The complaint
Miss X complained on behalf of her friend and neighbour, Mrs Y. Miss X complained Mrs Y had been badly treated by social care. Miss X is concerned the Council failed to support or safeguard Mrs Y or take account of her wishes. Miss X says this affected Mrs Y and her own emotional wellbeing.
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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) 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)
How I considered this complaint
I read Miss X’s complaint and spoke to her about it on the phone.
I considered information provided by Miss X and the Council.
Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Background information 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) An adult with possible care and support needs may choose to refuse an assessment. In these circumstances Councils do not have to carry out an assessment.
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 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.
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.
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?
If there is a need for continuing decision-making powers and there is no relevant EPA or LPA, the Court of Protection may appoint a deputy to make decisions for a person. It will also say what decisions the deputy has the authority to make on the person’s behalf. The Office of the Public Guardian (OPG) oversees the work of attorneys and court-appointed deputies and produces detailed guidance for them.
What happened This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
The Council received a referral from a family member requesting support for Mrs Y in April 2021. An assessment was completed by a promoting independence worker in May 2021. The outcome of this assessment was Mrs Y was not eligible for the promoting independence team, but a referral to social work for ongoing support was completed.
A social worker, Ms B, was assigned to Mrs Y’s case to complete a social care assessment. Ms B completed an unannounced visit to Mrs Y in June 2021 as she had on been unable to contact her the phone. Mrs Y refused the assessment. Ms B wrote up the visit as an assessment and closed the case as there was no role for social care. Ms B confirmed in the assessment she did not have any reason to doubt Mrs Y’s capacity to refuse this assessment.
At the start of February 2022, the Council received a new referral for Mrs Y’s social care needs from the GP. The GP raised concern about Mrs Y’s mental capacity and her ability to look after herself and her home. Miss X says she raised her ongoing concerns to the Council at this time.
The Council allocated the case to Ms B again, and she completed a care assessment in mid-February 2022. The assessment identified some concerns about the Mrs Y’s home and concern a family member had been financially abusing her. This assessment confirmed Mrs Y stated she was able to look after herself. The assessment also stated it considered Mrs Y’s mental capacity and decided she was able to partake in the assessment. It stated Mrs Y was not eligible for support at the time but referred her to the safeguarding team to investigate concerns around potential financial abuse.
The section 42 safeguarding enquiry started in March and was completed in April. The enquiries confirmed Mrs Y owed money to utility companies and money had gone missing from her account. The Council raised concerns about Mrs Y’s ability to care for herself but stated she would not need much support. The outcome of the enquiries was a protection plan to protect Mrs Y’s bank account, and the Council would apply for deputyship to take control of Mrs Y’s finances. It was agreed Miss X would support Mrs Y with her finances until the Council had deputyship. Miss X confirmed she would support Mrs Y with shopping and at home. The Council said it would set up an enablement support package to help Mrs Y manage daily living activities independently and safely. Ms B also arranged for a deep clean of Mrs Y’s property.
The Council completed a mental capacity assessment that confirmed Mrs Y did not have capacity to manage her finances. The Council completed a separate mental capacity assessment and identified Mrs Y did not have capacity to manage her medication.
The Council arranged for the enablement service to start at the end of March. At the initial visit Mrs Y declined the service at first. She was supported to engage with the service by Miss X and three visits per day were set up to support Mrs Y to manage her personal hygiene, nutrition and medication.
In April the Council began the process to manage Mrs Y’s finances and a deep clean was completed at her home. The Council completed a new care needs assessment and a mental capacity assessment for her care and support needs. The Council agreed Mrs Y did not have capacity to make decisions about her care and support. The Council assessment confirmed Mrs Y was eligible for support and recommended a package of care. The assessment confirmed Miss X was supportive and Mrs Y acknowledged she needed help to manage her day to day living activities.
The Council completed Mrs Y’s care and support plan in May 2022 and set up three calls per day, to replace the enablement service, and one-hour domestic support to help clean per week.
Miss X complained to the Council in the middle of May. She complained about Ms B and the Council was giving her contradictory information.
The Council responded to her complaint in the middle of June. The Council stated it was only able to share information about the complaint as it has a responsibility to protect Mrs Y’s personal information. The Council apologised if it had asked too much of her to support Mrs Y. It confirmed it was aware of issues with Mrs Y’s finances and would pursue the issues identified. The complaint response stated the investigation did not identify any significant fault and was satisfied with the support offered for Mrs Y’s care and support and finances.
Miss X disagreed with the complaint response and contacted the complaint handling officer and the leader of the Council to voice her concerns about Ms B and ongoing concern for Mrs Y. She felt Mrs Y’s needs were best met in a care home.
Miss X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Miss X would like the Council to apologise, arrange Mrs Y’s finances and change her social worker.
In response to my enquiries the Council stated it was applying for deputyship of Mrs Y’s finances and apologised if the complaint response gave the impression the case has been open throughout this time
My findings
Mrs Y initially refused a care needs assessment in June 2021 and her case was closed. Mrs Y had the right to refuse a care needs assessment. When a new referral was received in February 2022, the Council allocated the same worker and completed an assessment which Mrs Y did consent to. The Council put in place a package of care and support and action to safeguard her finances from the potential of further abuse. The Council has informed us it is in the process of applying for deputyship for Mrs Y. I have not found fault with the Councils actions.
The Council has apologised for the wording of the complaint response as Mrs Y was not continuously open to a social worker from May 2021. I cannot add to this response.
The Ombudsman investigates if the Council has followed the law and policies. The Council completed assessments in a timely manner when it became aware of the issues in this case. The Council provided evidence to support the decisions it made. It completed mental capacity assessments and best interest decisions where appropriate and has provided an advocate to ensure Mrs Y’s wishes are understood. The Council has not shared some information with Miss X as it is protecting Mrs Y’s confidentiality. I have not found fault in the Councils actions.
I recognise the situation has been distressing for Miss X, but the decisions were taken without fault. I am unable to share details of the Council’s interactions regarding Mrs Y for reasons of confidentiality.
Final decision
I have completed my investigation. The Council was not at fault.
Investigator's decision on behalf of the Ombudsman