Summary: Dr X complains the Council failed to deal properly with his late father’s care needs from May to November 2020, at times failing to meet them and causing unnecessary distress. The Council did not fail to meet the father’s needs. However, it caused avoidable distress by failing to respond to Dr X’s request to assign another social worker for his family.

The complaint

1. The complainant, whom I shall refer to as Dr X, complains the Council failed to deal properly with his late father’s care needs from May to November 2020, at times failing to meet them and causing unnecessary distress.

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The Ombudsman’s role and powers

2. 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)
3. 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, sections 30(1B) and 34H(i), as amended)
4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council and care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

5. I have:
• considered the complaint and the documents provided by Dr X;
• discussed the complaint with Dr X;
• considered the comments and documents the Council has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• invited comments on a draft of this statement from Dr X and the Council, for me to consider before making my final decision.

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What I found

What happened

6. Dr X lives abroad. He had power of attorney for his father’s, Mr Y’s, finances and health and welfare. According to the Council’s records, Mr Y had vascular dementia and other age-related medical conditions. He lived alone in his home.
7. The Council arranged a package of care for Mr Y which ended in 2019 when he refused all offers of support and threatened to call the Police when care workers visited him. Dr X says this was largely because of concerns over the cost of his care package. He then lived independently in his home.
8. In April 2020 Mr Y was in hospital, having been found on the floor in his home showing signs of confusion. On 16 April the hospital referred Mr Y to the Council for discharge planning. The Council assigned Mr Y a social worker and noted the need to assess his mental capacity to decide where he should go when he left hospital.
9. In an e-mail dated 20 April, Dr X said, with his encouragement, his father had agreed to accept a package of care so he could return home and to cooperate with the care workers. He said this meant there was no need to assess Mr Y’s mental capacity. On 23 April, Dr X said he had arranged for new locks to be fitted to his father’s door, keys for which would be placed in a newly installed key safe.
10. Mr Y had a fall in hospital on 24 April. On 28 April the hospital told Dr X his father was becoming more impulsive and confused. It said it was trying to rule out an infection as the cause of the confusion.
11. Around this time, the Council assessed Mr Y’s needs. The assessment says a mental capacity assessment showed he lacked the capacity to weigh up the risks of living independently, including risks from COVID-19. It says Mr Y wished to return home. Although the hospital had recommended residential care for Mr Y, the Council decided he should return home with a package of care, as a less restrictive option than residential care.
12. On 1 May the social worker told Dr X he had assessed Mr Y’s needs and was arranging a package of care based on four calls a day, plus two hours for shopping to protect him during the pandemic. They exchanged emails about what needed doing to prepare Mr Y’s home for his return. This delayed his discharge for a few days.
13. A care worker did some shopping for Mr Y on 5 May.
14. A care worker did some more shopping for Mr Y before he returned home in the evening of 6 May. The Council arranged for a care worker to stay overnight for the first three nights (6 to 8 May). This reflected the fact Mr Y had been wandering around while in hospital which, because of his risk of falls, put him at risk of harm.
15. On 7 May the care provider told the Council Mr Y had been restless during the night, wandering from room to room. In the morning he declined personal care, food and medication. The care worker left Mr Y in bed. When the care worker returned at 10.00 Mr Y was agitated and distressed at seeing him in his home. He shouted, asked him to leave and tried pushing him out of the property. Mr Y would not let the care worker shut the door. The care provider said it was concerned Mr Y may wander into the community. The Council decided to extend the overnight support until Monday 11 May. It asked for a female care worker, in case that was less unsettling for Mr Y.
16. A care worker stayed overnight with Mr Y on 7 and 8 May. When Dr X phoned his father on 7 May, he overheard a conversation between his father and a care worker, which reassured him all was going well.
17. Dr X e-mailed the care provider on 9 May saying his father had not answered his phone on 8 or 9 May. The care provider told him Mr Y had chained the door at 16.00 to prevent the care worker from entering and shouted at them to go away. It said if Mr Y refused entry that evening it would have to call the Police to do a welfare check. It said Mr Y did not answer the phone and suggested Dr X call when the care worker was there that evening. It said it was trying to identify a female care worker who spoke Mr Y’s birth language. Mr Y refused to let the care worker in to stay the night.
18. Mr Y turned the care workers away on each visit on 10 May.
19. Mr Y refused entry on 11 May but said he would call his son.
20. From 12 May the care provider sent a female care worker. Mr Y triggered his falls alarm but when contacted said it had been a mistake. The care provider told the Council it would visit Mr Y once a day, as he continued to refuse all support. It had spoken to Mr Y when he refused entry to a care worker. He said his phone was off the hook because he did not want to speak to anyone. He had moved all his aids (commode, bedpan and chair) outside his home. Dr X told the care provider the care workers should not use the key safe to enter his father’s home, as that would only annoy him and it had never been his intention that they use it to let themselves in. He said he hoped his father may become more cooperative.
21. Mr Y continued to refuse access to the care workers. He also declined the offer of shopping on 14 May, saying he had enough to last the week. The care provider said it may have to stop visits altogether, as it had been unable to do a risk assessment.
22. On 18 May the social worker e-mailed all those involved in Mr Y’s care, including Dr X. The e-mail summarised the steps taken to meet Mr Y’s needs, the difficulties encountered and the decision to reduce the calls “to reduce distressed behaviour”. It mistakenly said Mr Y had left hospital on 13 May. It also referred to reports of “aggressive behaviour”. The social worker asked the care provider to continue visiting once a day. He asked Dr X if a family friend could check whether Mr Y was meeting his nutritional needs. He asked the care provider to leave essential food outside Mr Y’s door and to continue visiting, if only to check he was still declining care.
23. Dr X said he had spoken to his father, who sounded “very good and perfectly normal” and “clearly has been eating fairly well”. He said a friend was visiting and they should “take things gently” to re-establish trust. Later Dr X said his father was aware of his own personal safety and was not trying to leave his home without help. He noted his father had been fully independent since February 2019 and believed that would be the case again.
24. On 19 May the Council asked Dr X if he agreed the care package should be cancelled, as his father was refusing all offers of support and appeared able to ask for help if he needed it. It also asked if Dr X could arrange shopping for Mr Y.
25. After receiving a response from Dr X, on 20 May the Council asked the care provider to shop for Mr Y and leave the shopping outside his door.
26. On 21 May the Council told Dr X it agreed to provide some support for Mr Y, even if he refused it, to ensure his care needs were being met. When the care worker delivered shopping for Mr Y, he refused to open the door and said to leave the shopping outside. The care provider said it had now spent most of the money Dr X had provided for his father’s shopping.
27. On 22 May the care provider told the Council Mr Y had not taken the shopping in, which was still on his doorstep. It asked the Council to make other arrangements for meeting his needs, as it could not do so. Mr Y returned to hospital that evening following another fall. He received treatment for kidney failure and vitamin D deficiency.
28. Dr X exchanged e-mails with the social worker. He asked him to provide more information about the support provided for his father. Around the same time Dr X e-mailed the hospital about his father’s diagnosis of dementia and asked for an MRI scan.
29. On 7 June Dr X e-mailed the Council asking for a change in social worker.
30. On 15 June the Council assessed Mr Y’s mental capacity to decide where he should go when he left hospital. The Council found he lacked the capacity to make that decision. This reflected the fact he did not understand he was in hospital and could not therefore understand the questions about where he should go when he left hospital.
31. After receiving an e-mail inviting him to take part in a discharge meeting by calling the social worker on 16 June, Dr X confirmed he would take part but reminded the Council he had e-mailed asking for a change in social worker but had not received a response.
32. On 16 June, after consulting Dr X and medical professionals, the Council decided it was in Mr Y’s best interests to move immediately to a short-term placement in a care home, which would be reviewed within six weeks. The Council considered less restrictive options of returning home with or without a care package, but decided they would not meet his need for care and support. According to the Council’s records, Dr X agreed to this. They say he would organise a package of care, including technology, so Mr Y could return home after the short-term residential placement.
33. After the meeting Dr X e-mailed the Council saying his father should not be discharged until he had been assessed for NHS Continuing Healthcare. However, on 17 June, the NHS told him because of COVID-19 the NHS Continuing healthcare check list would be completed outside the hospital. It also sent him a leaflet about hospital discharge during C0VID-19 which said there would be no charge for the care provided. However, at the discharge meeting Dr X had been told there would be a charge for his father’s care and Mr Y would have to pay the full cost if he had more than £23,250 in savings. The Council subsequently charged Mr Y for his care, but in November 2021 withdrew the charges. Dr X says this was after he
34. On 19 June the Council e-mailed Dr X and the hospital at 16.13 saying it had arranged a short-term placement in a care home, pending a review of Mr Y’s needs in the coming weeks, and asked the hospital to arrange discharge. Mr Y went to stay in the care home on 20 June. Dr X says he was not informed in time about this.
35. On 5 August Dr X wrote to the Council pointing out he had received no response to his request to assign another social worker. He said as his father’s power of attorney he had the right to make this request and the Council had to respect and act upon it.
36. On 19 August the care home gave notice to terminate Mr Y’s placement as it could no longer meet his needs. It said he had bitten a care worker who had been trying to help him with personal care. It said the GP had referred Mr Y to the Mental Health Team. The next day Mr Y was taken back to hospital where he was detained under Section 3 of the Mental Health Act 1983.
37. In October the Council assessed Mr Y’s mental capacity to decide where his care needs should be met. It decided he lacked the capacity to make that decision. After consulting medical professionals and Dr X, the Council decided it was in Mr Y’s best interest to move to a nursing home when he left hospital. The Council noted this was the most restrictive option for Mr Y, but the least restrictive option of returning to his own home would not have met his needs as he was likely to “display non-compliance”.
38. Mr Y remained in hospital until March 2021.
39. When the Council replied to Dr X’s complaint in June 2021, it summarised the events described above. It said:
• it accepted the email of 18 May could have been worded differently, including references to Mr Y’s “aggressive behaviour” but noted the social worker had already apologised for this;
• consultation over Mr Y’s discharge from hospital in June 2020 had been limited due to the pandemic, which also affected the number of care homes able to take new residents;
• the decision to detain Mr Y in hospital under the Mental Health Act had been made by the NHS, so the Council could not comment on it.
40. Mr Y died in December 2021.

Is there evidence of fault by the Council which caused injustice?

41. 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
42. 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.
43. 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.
44. The evidence does not support the claim that the Council failed to meet Mr Y’s needs. It shows the Council acted in line with the Mental Capacity Act 2005.
45. Because of his dementia, Mr Y did not have insight into his care needs and lacked the capacity to decide how they should be met. The Council therefore made decisions in his best interests, in consultation with Dr X. In May 2020, it arranged a package of care to meet his needs in his own home in the hope that this would meet his needs in a less restrictive way than a care home. This reflected the fact Mr Y wanted to be in his own home.
46. The Council extended the overnight support, initially arranged for three nights, over the weekend as Mr Y was wandering around at night. Dr X says the Council was wrong to do this and his father refused to let the care worker in because he was not expecting someone to come for a fourth night, having only agreed to three. But Mr Y had already refused entry to a care worker at the tea time call on 9 May. Besides, Dr X knew a care worker would be visiting to stay overnight, as the care provider told him on 9 May, but he raised no objections.
47. It appears Mr Y, a fiercely independent person, no longer wanted people in his home he did not know. Dr X says he was also concerned about the cost of his care, as he had been in 2019. Mr Y stopped answering his phone, taking it off the hook, which further isolated him.
48. The Council arranged shopping for Mr Y. Apart from the shopping delivered before he returned home, he did not accept further offers of help, even when a care worker left shopping outside his door. It seems unlikely Mr Y was feeding himself properly. But that was not due to fault by the Council. Mr Y returned to hospital after falling again. The Council was not responsible for that. It appears to have been an unfortunate consequence of Mr Y’s condition, which meant he did not recognise his need for support while retaining his ability to assert his independence.
49. Mr Y’s care package could possibly have been set up in a more person-centred way, for instance avoiding the conflict arising from care workers letting themselves into his home. Dr X assumed the key safe would only be used in emergencies (it had previously been necessary to break into Mr Y’s home when he had a fall). The Council expected the care workers to use the key safe to let themselves in, which would be normal practice for someone at risk of falls. However, the lack of more person-centred planning was largely due to the pandemic, which meant planning had to be done remotely.
50. The Council did not give Dr X much notice of the move to a care home on 20 June 2020. Under the Care Act people should have choice over their residential accommodation and the lack of notice did not allow for this. However, under the COVID-19: Hospital discharge service requirements, the expectation was that people should be discharged as soon as possible, ideally within three hours. That did not allow for the same level of choice as would otherwise be available. Choice was also limited by care homes not accepting new residents if they had cases of COVID-19. The lack of choice and notice did not therefore amount to fault.
51. The Council was not at fault for failing to assign another social worker for Mr Y. Although Dr X was entitled to make that request, the Council was not obliged to accept it. However, the Council was at fault for not responding to his request and explaining why it would not assign another social worker. This left him repeating the request and increased his sense of grievance at not being listened to. The Council needs to apologise to Dr X for the avoidable distress this caused.

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Agreed action

52. I recommended the Council within four weeks writes to Dr X apologising for the distress arising from its failure to respond to his request to assign another social worker. The Council has agreed to do this.

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Final decision

53. I have completed my investigation on the basis there has been fault by the Council causing injustice which warrants a remedy.

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Investigator's decision on behalf of the Ombudsman