Date of decision: 05 January 2026
Summary
A son complained about the Council’s mishandling of his father’s hospital discharge, including an unsuitable care plan that failed to address known risks, putting the man at risk, harming his physical health, and causing the son significant stress.
What happened
Mr Y, an elderly man with several health conditions, had an existing care plan providing four visits per day by one care worker, totalling 11 hours weekly.
In spring 2025, Mr Y had a serious fall at home and was admitted to hospital.
When Mr Y became medically fit for discharge, a social worker from the Council’s hospital discharge team assessed him and found he had capacity to decide his living arrangements; Mr Y stated he did not want to live in a care home.
The social worker suggested, and Mr Y agreed, to a home care package of four 30-minute visits per day by two care workers, totalling 14 hours weekly. Medical staff raised concerns that this package did not meet Mr Y’s needs; the social worker’s colleague informed Mr X, Mr Y’s son and Power of Attorney holder, who also objected that it was inadequate.
The Council proceeded to issue the care plan, noting the risk of further falls and potential hospital readmission but omitting details on risk management. Mr X contacted the Council multiple times, requesting a call to discuss the plan, but the Council failed to return his calls.
Mr Y was discharged home with this package, fell again the same day, and was readmitted to hospital.
Mr Y has since died.
What was found
No fault was found in the mental capacity assessment, as there is no actual legal duty to involve family or attorneys, and the assessment by the social worker properly addressed the Mental Capacity Act 2005 criteria.
However, the Council was at fault in discharge care planning under the Care Act 2014 by not properly considering medical staff’s concerns, Mr X’s input, all care options, and fall risk mitigation, despite acknowledging increased needs and risks; the plan lacked detail on meeting needs person-centredly. The Council told the Ombudsman it considered Mr Y’s care plan offered the least restrictive care.
But the Council has not evidenced it properly considered all relevant available information in assessing Mr Y’s needs or how the plan met these needs.
This caused Mr X unnecessary distress and uncertainty, though no causal link to Mr Y’s fall or death could be established on the balance of probabilities.
The Council also poorly communicated by not returning Mr X’s calls. The Council agreed to apologise to Mr X for the distress caused and to report learning to ensure proper consideration of information in future care planning. No financial compensation was recommended.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Whilst it is true that there is no legal duty to ask a person involved with someone what they think about their capacity or otherwise, it stands to reason and seems logical that if a person has appointed an attorney on a lasting basis, that attorney may very well be the decision-maker on an issue related to a care package, unless the Council is involved as funder. If they have a welfare power of attorney, they will need to be sure of incapacity, themselves, and must be regarded as the primary decision-maker about capacity within that scope of authority.
When the Council IS involved, there is an urgent need to communicate with the attorney, because of the attorney’s power to consent in the place of the individual, to care home admission, based on best interests, if the person has indeed lost capacity.
The Ombudsman’s analysis overlooks key public law principles requiring councils to involve those interested in a person’s welfare, such as the implications under the Care Act of there being a son holding power of attorney, when preparing a care plan after hospital discharge. Even if capacity is confirmed for living arrangements, community care law treats relatives’ perceptions on risks as relevant considerations.
The whole point with regard to a refusal of a care home placement is that the Council is allowed to walk away if that decision is capacitated. It discharges the Council from its duty. That is not the choice of the client; that is the choice of the Council, and it means that where they do NOT walk away they are still bound to act as professionals and allocate a budget that is sufficient to meet needs. Furthermore, the person’s capacity does not determine a professional staff member’s assessment of need, and responsibility for creating a plan containing a professional view about an adequate response – based on the reality of the situation – not on the arbitrary sum which the Council would have hoped to limit the placement to, had the person accepted the suggestion.
But whilst we are on the subject of capacity, readers will be aware that the Court of Protection has insisted that in this sort of situation a person cannot be regarded as having been given the means to make an informed choice, unless the Council has provided an indication of the lowest practicable minimum input that will meet the needs in the real home environment of that actual individual.
The decision underplays communication failures by not linking ignored calls from the attorney to a breach of involvement duties in care planning, where councils must facilitate participation from welfare-interested parties to ensure person-centred outcomes; this gap risks repeating hospital discharges without robust mitigation, so councils should train staff on consulting attorneys promptly and document responses to maintain transparency.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Wigan Metropolitan Borough Council (25 002 679) 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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