Date of decision: 28 Apr 2025
Summary
An individual, Mr X, complained about the Isle of Wight Council’s handling of emergency care for his father, Mr Y. It failed to assess mental capacity and communicate properly, leaving an elderly person without essential support for part of a day and causing distress to his family, who had no choice but to arrange and pay for private care.
What happened
In late October 2024, after Mr Y’s wife was hospitalised, paramedics and family referred him to the Council, noting advanced memory issues although no diagnosis of dementia was noted, and apparent current reliance for 24-hour care from his hospitalised wife.
The Council arranged emergency care for Mr Y at home for a week, four times per day, free of charge, which it said it would continue for around one week. The same day Mr Y’s family member called the Council saying Mr Y would need someone with him all the time, but he would deny this if asked. However, the Council quickly withdrew this emergency care package after two visits by different officers on the same morning, each time concluding Mr Y could manage alone.
Another council officer visited later that afternoon and found him confused and unable to explain how he would manage his daily care. The officer then contacted Mr X, who was upset that the support package had been ended without his knowledge. Mr X explained he held LPA and that Mr Y was over the financial threshold. The officer therefore advised him to arrange care independently. The Council recorded that Mr X agreed, was given details of care providers, and said he would monitor Mr Y until a care agency was in place.
The next day, a welfare check was completed by a welfare officer where it was noted that Mr Y still needed support, but that Mr X would directly source private care.
The Council acknowledged that it did not inform Mr X, who held Lasting Power of Attorney (LPA), about ending the care package, leaving Mr Y without support for most of a day. This resulted in Mr X complaining that he had to arrange emergency care through neighbours and then pay a private care agency to support him.
He also complained that the Council was wrong in deciding that Mr Y did not need support and had the capacity to make this decision; this left him with no support all day with nobody telling family members until late afternoon.
The Council upheld Mr X’s complaint and later acknowledged it failed to take correct information at the time of referral, which led to it passing poor information to the team that visited Mr Y. It also said it failed to communicate with Mr X, who had LPA, which led to Mr Y being without support for a short period of time. The Council apologised and said it had addressed the issues with the workers concerned. Mr X was unhappy with this response and said the conclusions were based on inaccuracies.
What was found
The Council said the first two officers who spoke to Mr Y had no concerns about his mental capacity to decide about his care and support. It acknowledged that this may have been because of varying capacity, depending on the time of day. The Council accepted fault for failing to explore if there were concerns around Mr Y’s capacity at the point of referral. The Ombudsman found the Council was also at fault for failure to carry out a Mental Capacity Assessment, referring to the Code of Practice to the Mental Capacity Act which says a Council should complete an assessment where capacity is in doubt. These faults created a missed opportunity for the Council to consider Mr Y’s capacity, complete a Mental Capacity Assessment and the best interests process if necessary.
The Ombudsman could not say what the outcome of a Mental Capacity Assessment would have been, but was satisfied that the Council’s failure to complete an MCA likely caused Mr X distress, as he remained uncertain about the Council’s approach to his father’s care.
The faults meant that Mr X had to arrange private care at home, but the Ombudsman decided there were no grounds for recommending a refund because it could not be said on the balance of probabilities what the outcome of the MCA or best interests process would have been.
Mr X also confirmed that Mr Y had savings over the capital threshold and so would have had to have paid for his own care.
Mr X felt that due to discrepancies in the information the Council provided during its investigation it did not properly investigate his concerns. The Ombudsman did not investigate this point further as the Council had already accepted fault for substantive matters, so further investigation would not lead to a different outcome.
The Council was told to apologise, make a symbolic payment of £200 to Mr X, and remind staff of the need to carry out mental capacity assessments where a person declines care but appears to show signs of confusion.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
When the first two officers visited Mr Y the emergency care package had been in operation earlier on in the day so it was not surprising that Mr Y seemed as if he was coping – he had been helped up and supported, we think.
To a professionally trained person, the information from the paramedics and Mr Y’s family about his memory and care needs was enough for the Council to doubt his capacity. Lack of professional curiosity lies at the heart of most safeguarding issues.
We are not told where Mr X lived or how he would have coped with organising care; it sounds as if he relied on neighbours. We do not even know that he held welfare power of attorney, but finance power plus assets over the threshold should be enough for a council to rely on, because the Care Act duty in s18 is removed if a person has someone willing and able to arrange what would otherwise be required. If Mr X said he would make arrangements, the Council was actually entitled to rely on that position from an LPA holder.
When a person has a Lasting Power of Attorney the attorney must be consulted and informed about decisions affecting the person’s care and support in the context of potential lack of capacity. (Although the report does not specify which kind of LPA Mr X held, the implication is that it was for Health and Welfare as well as Property and Affairs.) Clearly the holder of an LPA cannot properly make decisions for a person if they are not properly informed.
The decision does not fully explore whether the Council took all practicable steps to help Mr Y make decisions about his care, as required by the Mental Capacity Act, or whether the Council considered if the lack of support placed Mr Y at risk of significant harm or neglect—a key duty under the Care Act and safeguarding legislation.
It must have appeared to the Council that Mr Y ‘may have needs for care and support’ and therefore it had a duty to undertake a needs assessment under s9. The duty applies irrespective of its view of the level of Mr Y’s needs, or the level of his financial resources. It also has the power under s19 to meet an adult’s needs for care and support, which appear to it to be urgent without having carried out a needs assessment or a financial assessment.
The Council might also have decided to continue with a package of care for preventing deterioration, which appears to have been the basis on which the initial care package, which lasted only two days, was provided. It is not clear whether any of this was explained to Mr X. Although the report does not state this explicitly, the implication is that Mr Y had capacity and refused care, or was treated as having done so, with the result that no process was followed for care to be put in place.
The Ombudsman cites the fact that we do not know what the outcome of a capacity assessment or best interests process would have been, as a reason for not recommending a refund, but then goes on to say that since Mr Y has savings over the capital threshold he would have had to pay for his care anyway.
We think that the investigator seems to be saying that if he had capacity, then he could have refused the care and thus should not have had to spend the money, but that since one cannot know, there should be no refund.
It seems obvious to us that the real wrongdoing here was the communication failure and the lack of professional curiosity and that the man definitely needed the care. The point we think that Mr X was making was that had the Council gone ahead and kept the initial package going, it would have been free to his relative; or at the very least, the cost might have been less through the council, than through private arrangements. We don’t think that this makes sense, though, if Mr X himself said he would organise the necessary care.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Isle of Wight Council (24 015 174) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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