Summary: Mr X complains on behalf of Mr Y, that the Council did not move Mr Y to suitable accommodation after it said his needs would be better met elsewhere. Over four years later, and 18 months after he complained, Mr Y has not moved. He says he is unhappy and reliant on staff for everything, including leaving the property. This caused him significant stress and anxiety and he lost independent living skills. The Ombudsman finds the Council at fault in the way it dealt with Mr Y’s accommodation and his complaint about this. It delayed and failed to take decisive action to resolve difficulties it faced in commissioning a suitable service. It has agreed to apologise, pay Mr Y £5,000 and reimburse him £1,200 for decorating a property he never returned to. It has also agreed to arrange suitable accommodation urgently and identify and remedy similar cases. It will take action to prevent similar problems in future.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains on behalf of Mr Y, that the Council:
1. left Mr Y in unsuitable accommodation, that was intended to be temporary, for four years.
2. gave insufficient regard to Mr Y’s needs and human rights.
3. failed to adequately involve family, advocates and relevant professionals.
4. did not deal adequately with his complaint.
5. failed to provide information as requested.
2. Mr X says this impacted negatively on Mr Y’s physical and mental health and his independence. He is unhappy, locked in and cannot leave his accommodation freely which causes him significant anxiety. He would like to live in supported housing or return to living independently with a package of support. He would like a full, up-to-date, multi-disciplinary assessment so he can receive the support he needs. He would also like an apology, a refund of the rent he has paid on his flat while not living there, and the cost of decorating when he thought he would return. He would also like some recognition of the stress and anxiety this has caused him.

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What I have investigated

3. I have investigated parts a) to d) of Mr X’s complaints. My reason for not investigating part e) is at the end of this statement.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. 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)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended). In this case, we have exercised discretion to investigate back to 2015 as this was the start of the events complained about.
7. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended). Mr Y has given his consent for Mr X to bring his complaint on his behalf.

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How I considered this complaint

8. I considered information from the Complainant and from the Council.
9. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

Human rights

10. The Human Rights Act 1998 (the 1998 Act) sets out the fundamental rights and freedoms that people can expect.
11. Article 5 of the 1998 Act protects rights to liberty and security. It says you must not be imprisoned or detained without good reason.
12. Article 8 of the 1998 Act says everyone has the right to respect for their private and family life, their home and their correspondence. Public authorities may be obliged to actively protect rights under this article and may interfere with these rights to protect the rights of other people or the public interest. The public authority must interfere with the right as little as possible.

Deprivation of Liberty

13. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.

Mental capacity

14. The Mental Capacity Act 2005 (the Act) is the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves. A person must be presumed to have capacity to decide unless it is established that he or she lacks capacity. They must not be treated as unable to decide unless all practicable steps have been taken to help them do so. The Act says a person cannot decide for themselves if they cannot do one or more of the following (with support if needed):
• Understand information about the decision.
• Retain that information long enough to decide.
• Weigh up the information to make the decision.
• Communicate their decision.

The Care Act

15. The Care Act 2014 (the Act) sets out local authorities’ duties around adult social care. The Care and Support Statutory Guidance sets out how the Act should be applied. The guidance says, “supporting people to live as independently as possible, for as long as possible, is a guiding principle of the Act”.

Assessment, eligibility, and support planning

16. Sections 9 and 10 of the Act say local authorities must assess the needs of any adult who appears to need care and support. Authorities must do this regardless of whether they think the person has eligible needs and regardless of the person’s finances. They must involve the person and their carer or any other person they might want involved
17. Local authorities must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Where a local authority determines that a person has eligible needs, it must meet these needs. It must also give the person a copy of its decision.
18. The guidance says
• “The core purpose of adult care and support is to help people to achieve the outcomes that matter to them in their life”.
• Local authorities must involve the person as fully as possible, and assume they are best placed to know their own outcomes, goals and wellbeing.
• Local authorities must have regard to “the severity and overall extent of the person’s needs”. An individual with more complex needs will require a more detailed assessment, potentially involving several professionals.
• Local authorities “should take a holistic approach” to considering the needs to be met. They should make “comprehensive provisions” to accommodate fluctuating needs, and detail contingencies for sudden changes or emergencies.
• “Where a person has both health and care and support needs, local authorities and the NHS should work together effectively to deliver a high quality, coordinated assessment”.
19. The Act also places a duty of promoting individual wellbeing on local authorities. It sets out nine areas of wellbeing which include:
• Physical, mental and emotional health
• Domestic, family and personal relationships
• Personal control
• Suitability of living arrangements
20. The guidance says promoting wellbeing expects a “genuine conversation” about the person’s needs for care and support. Also, about how meeting these needs will achieve the outcomes most important to them. It also says local authorities must:
• promote wellbeing when carrying out any care and support functions or making a decision about a person;
• consider how to prevent needs developing or escalating at every interaction with a person;
21. Section 27 of the Act gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. As well as the duty to keep plans under review generally, the Act puts a duty on the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one.
22. Where the local authority is to meet a person’s needs, it must provide a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The council should share an indicative amount with the person, and anybody else involved, at the start of care and support planning, with the final amount of the personal budget confirmed through this process. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.
23. There are three main ways in which a personal budget can be administered:
• A managed account held by the local authority with support provided in line with the person’s wishes.
• A managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes.
• A direct payment.

(Care and Support Statutory Guidance 2014)

Direct payments

24. Direct payments are made to individuals to meet some or all of their eligible care and support needs and enable people to commission their own care and support to meet their eligible needs. This might involve the person using an agency to provide support or employing a personal assistant (PA). If someone receives direct payments the Council should support them to use and manage the payment properly.

Disabled facilities grants

25. Disabled facilities grants (DFG) are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. Councils have a statutory duty to provide grant aid to disabled people for certain adaptations.

Complaint handling

26. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently. A single stage procedure should be enough. The Council should say in its response to the complaint:
• how it has considered the complaint; and
• what conclusions it has reached about the complaint, including any matters which may need remedial action; and
• whether the responsible body is satisfied it has taken or will take necessary action; and
• details of the complainant’s right to complain to the Local Government and Social Care Ombudsman.

(Local Authority Social Services and National Health Service Complaints (England) Regulations 2009).

What happened

27. Mr Y had health conditions and disabilities which caused him significant difficulties with mobility, co-ordination, and speech. Also, some triggers, including anxiety, occasionally prompted him to have sudden, violent outbursts. He needed trained staff to reduce the risk of these. He also needed support with personal care and other daily living activities.
28. Mr Y spent some years living in an unsuitable flat (A), then lived alone in a council owned flat (B), which was adapted for his needs, for several years. The Council provided Mr Y with a care package of 23 hours per week. He had two carers twice a day and attended a day centre on two days a week. He could make himself a hot drink, reheat food in a microwave, and contribute to other tasks around the home such as fetching ingredients or utensils for carers. He would also do other tasks such as returning his crockery and cutlery to the sink for washing. Following an incident in 2015 where Mr Y hurt a support worker, he was admitted to hospital while the Council looked for more suitable accommodation. A psychiatrist felt the loneliness and isolation he had experienced living at his flat (B), had contributed to the incident.
29. Around six months later, Mr Y moved to Flat C, while he waited for suitable supported housing to become available. The Council referred to this as a respite placement. Flat C was in a residential assessment unit; it has communal laundry facilities and a meeting room. Mr Y was allowed to use this room for games evenings with friends and family on a few occasions. Mr Y’s flat had a bedroom, lounge, toilet and bathroom but no kitchen. The Council says Mr Y had access to a kitchen, but Mr X says this is not right and for four years he had no access to a kitchen. In fact, Mr Y asked for access to a kitchen in his initial complaint to the Council. Mr X also says there was no garden or informal communal area on the premises. Mr Y could access a path outside his room using a code, but the path led to locked gates for which he did not have a code. Mr Y’s visitors were escorted to his room using this path. Staff were not able to push Mr Y in his wheelchair outside Flat C, for health and safety reasons.

Mr Y’s assessments and future housing options

30. In December 2015, the Council discussed his future accommodation with Mr Y; he said he did not want to return to Flat B. The Council agreed to look for supported living accommodation.
31. In January 2016, professionals met to discuss Mr Y’s discharge from Flat C. The Council says he was due to return home to Flat B at the beginning of February. The meeting felt his mental and physical needs had increased since his hospital admission and he would now need a large package of care if he was to return there. The meeting agreed his needs could be better met in supported accommodation. Two days later, the Learning Disabilities Service (CLDT) visited Mr Y to review his support plan. The Intensive Response Team (BIRT), part of CLDT, also attended. The CLDT and BIRT are services run by the health service. The records note Mr Y was anxious about returning to Flat B. He agreed that supported living accommodation with a communal area would be better for him and said he did not want to go back to Flat B.
32. The assessment noted Mr Y needed support to organise parts of his life, such as making appointments, due to his communication difficulties. It said he did not have any cognitive impairment so could decide for himself, but due to anxiety, he sometimes needed support with having confidence to decide. Mr Y said he would make day to day decisions on his own and discuss bigger decisions with his family and advocate. It also noted needs for support including:
• Making hot and cold drinks
• Cutting food to bite size pieces
• Prompting medication
• Personal care including washing and wiping his bottom
• Domestic tasks and household management
• Finances

The assessment noted that in extreme anxiety, Mr Y could lose rational control and have violent outbursts which were beyond his control and out of character. It noted known triggers included “periods of anxiety and uncertainty” and “a sense of reduced control”.

33. Mr Y said he would like to visit new placements a few times before he commits to moving as he would become highly anxious about the change to his routine. The Council found Mr Y had eligible needs and identified an indicative budget of £692.34 a week.
34. In February 2016, the BIRT completed a comprehensive risk assessment and management plan (CRAMP) for Mr Y with staff from Flat C. Mr Y’s advocate, sister, and mother, were present. The CRAMP identified that Mr Y presented a significant risk of harm to himself, other people, and to property. It said Mr Y always had high levels of anxiety and a mild learning disability; he could appear more able than he was. It said he was able to retain facts and relay information, but this may not always be in the right context and there may be gaps in his understanding. It said staff should have “knowledge, skills, experience and training in learning disabilities, mental health and challenging behaviour”. The CRAMP noted Mr Y had lived in different types of environments since leaving home, which had all broken down. Also, that he enjoyed seeing his friends and family regularly and, with support, arranging events with them. It said he liked to be helpful and valued his independence so liked to be responsible for tasks where possible. Triggers listed, included uncertainty about where he would live, being unable to return to flat C by the same door he used to go out, and visiting new places. It also noted a major unmanaged risk of Mr Y having a violent outburst while out in the community independently. It said this would be addressed as part of Mr Y’s transition to new accommodation. The Council agreed Mr Y would be resettled in supported housing.
35. In March 2016, the Council identified a placement out of the area (property 1) but Mr Y did not want to move away. He viewed a second property (2), but he didn’t like the noise and felt the lift was a fire risk. Mr Y thought a third property (3) was homely and comfortable, but the room was too small, and it was too far from his mother, but he decided to pursue this.
36. In June, the BIRT reviewed Mr Y’s CRAMP and noted the risks had reduced with scores in most areas at least halved. An OT assessed Mr Y’s need for adaptations to property 3 and recommended adaptations to the bathroom, kitchen windows, and access. The Council agreed it would arrange adaptations to property 3 to meet Mr Y’s access needs but Mr Y asked to move to property 2. However, this accommodation no longer had any vacancies.
37. Mr Y was left with two options: back to flat B with a package of care, or property 3. Mr Y chose property 3.
38. In August, the Council decided the adaptations to property 3 would need to be completed using a disabled facilities grant (DFG). This was because the care provider would not fund the level of adaptation Mr Y needed.
39. In September, the Council visited property 3 to consider the adaptations required before completing a “simple” assessment of Mr Y’s needs. It noted that Mr Y had “an impairment of, or disturbance in, their functioning of the mind or brain”, but that a mental capacity assessment was not required. The assessor advised Mr Y the adaptations would “take a while”. This was because she would need to arrange to visit property 3 with a surveyor to look at how the adaptations would be done.
40. The placement at property 3 fell through in January 2017. The care provider was concerned about the delay waiting for the adaptations and the financial pressure this would cause keeping the placement vacant in the meantime. The adaptation was expected in June 2017 and the Council had already been considering it for around 10 months. The Council was unwilling to enter into a “potentially open ended financial commitment” with no guarantee the placement would be available. It cancelled the DFG.
41. In February Mr Y viewed another property (4) but felt the room was too small. The Council says it discussed Mr Y’s continuing tenancy at Flat B while he was not there. Mr Y decided to continue paying for it.
42. In March, Mr Y told his social worker that he did not want to return to Flat B. He viewed a sixth property (6) but refused as the shower was not fully accessible. Also, following advice from family, he said he did not like the area or the peer group. The Council suggested a seventh placement but Mr Y said he had lived in a community setting before and it hadn’t worked so he rejected it. The eighth option was only temporary and Mr Y did not want to move twice. A ninth option later became unavailable because of staffing issues. The Council says it sent a referral to 27 supported living services. However, none had accommodation suitable for a wheelchair user, or had suitable accommodation outside of the local area, which Mr Y did not want.
43. In April, the Council suggested property 1 again but Mr Y was not keen as it was over 30 miles away.
44. In May, the Council assessed Mr Y’s needs. He decided he wanted to return to flat B with 1:1 support and told his social worker. The CRAMP stated support workers needed to be Positive Behaviour Management (PBM) trained but the Council could not find a provider who could offer this.
45. In June, Council records note it was looking for a home care support package and was not sure if PBM training was crucial. The social worker advised that workers did not have to be trained as the BIRT would support and provide any training needed. The Council discussed Mr Y’s situation and decided the reasons he had rejected the accommodation offers were not appropriate and it would not offer more.
46. A few weeks later, the CLDT discharged Mr Y. It said he needed a package of care to support personal care, daily living skills and access to a range of meaningful activities in the community.
47. In October, the Council offered Mr Y a direct payment so he could employ his own personal assistants. Mr Y had previously refused direct payments because of the complexity and he refused again. The brokerage team continued to look for a care provider who could provide PBM trained support workers to Mr Y.
48. In November, the brokerage team received an offer from a care provider, but the social worker said the support was not now required until the new year. The brokerage team closed the case and next received a request at the start of March 2018. In April, the team closed the case again as the social worker was to complete an assessment of Mr Y’s needs.
49. In May 2018, the Council completed the assessment. It notes that Mr Y was in the process of moving back to Flat B. The staff at Flat C had been supporting him as expected he would need at Flat B, so they were confident about what support would meet his needs there. It noted Mr Y had support from the Support for Independent Living Service (SILS) to access the community and had been socialising with friends in Flat C. It identified that he needed support of two carers, six times a week, to out in the community. Mr Y’s family and advocate expressed concern that he would not have support at night and would need more support if he experienced a sudden, angry outburst. The Council noted that the care provider at Flat C had not assessed him as needing support at night. Also, that in the time Mr Y had been at Flat C, over two years, he had experienced 2 or 3 outbursts. The Council set Mr Y’s indicative budget at £296.85 weekly based on the support provided at Flat C. The social worker asked the brokerage team to resume the search for a provider.
50. The brokerage team says it contacted 15 agencies up to the end of May but found none with capacity. It referred to the social worker who said she would speak to colleagues and in June the brokerage team resumed the search once more. It continued the search with occasional offers but none which were suitable. The team sought further clarification from the social worker who confirmed that support times were not flexible. It received a further two offers in October from agencies whose staff would require PBM training. The Council did not pursue these, but it was not clear why from the information I saw. In November, the Council set out the specific days, times and tasks required and continued the search.
51. In January 2019, four providers expressed interest and said they would consider providing the support if the Council paid for the required training. The Council notes it had “various discussions about training” and the search continued.
52. During February and March, the Council sent emails to all providers setting out the support needed and that staff would need PBM training. It said the Council was “looking into whether we can support agencies with this”. A vacancy arose but the social worker was on leave and the brokerage team got no response to its email about this for over one month. The social worker declined another proposal as staff did not have PBM training and it was supported living which was not an option.
53. In April, the brokerage team sent details of another offer to the social worker who then spoke to the manager of the service but nothing came of this.
54. In May, Mr Y’s consultant psychiatrist referred him to a clinical psychologist for support around his episodic low mood, angry outbursts and self harm. Mr Y first saw the clinical psychologist in October 2019. Although this was after Mr X came to the Ombudsman, the psychologist has since reported that his low mood was linked to his living situation. She said the emotional roller-coaster of placements proposed but not being successful had contributed to this. She referred to Mr Y as having a mild/borderline learning disability and said the incidents of aggression are low in frequency with 1-3 recorded per year since 2016.
55. In late 2019, the Council completed another assessment. Mr X is unhappy that this did not adequately reflect Mr Y’s needs, or his and his friends’ and family’s views. He is also unhappy with a comment that staff at Flat C saw no evidence of Mr Y’s learning disabilities, and that Mr Y has refused to complete an IQ assessment. However, Mr Y could not complete the test because it was not adapted for his physical disabilities. The assessment also says that Mr Y had only had a few outbursts since being at Flat C and says this is because he is not so lonely. It says, “I am much happier here than in my old flat”. This was presented as Mr Y’s view, but Mr X says this was not Mr Y’s view. He also says Mr Y had more outbursts than stated in the assessment, some of which were reported by staff at Flat C despite providing the lower figure in the assessment. He says he has had more than ten outbursts since December 2019. The assessment finds that Mr Y needs 18 hours support each week although at Flat C Mr Y has 24-hour support. Mr X says while Mr Y is in Flat C, he just presses a button if he wants food, drink or to speak to someone, and support will arrive within minutes. He says Mr Y’s assessment does not consider he has not even made a hot drink for over four years. He says the Council should do more to improve Mr Y’s skills in living independently, and develop his confidence, before he moves out of Flat C.
56. The Council said it appreciated Mr X’s input, but the outcome of the assessment was a professional decision. It said it would recommend Mr Y is reminded that he can ask a family member or friend to be present during important meetings if he wishes. However, it noted Mr Y is “easily influenced by the emotions, comments and body language of others including friends and family”.
57. Since these events, the Council has confirmed to Mr Y in March 2020 that it proposes a package of care including 38 hours of 1:1 support a week. The package would also include shared support. This means a member of staff would always be in the building when Mr Y was not receiving 1:1 support. The Council says it has identified an appropriate placement and is due to undertake an OT assessment to check its suitability for Mr Y.
58. I am also pleased to note that following my draft decision, Mr Y now has the code for the gate and can leave his home without permission or support.

Flat B

59. Mr Y moved to Flat C in late 2015 because he did not wish to return to Flat B and the care provider told the Council it would be “challenging” due to “space issues”.
60. The Council says it discussed ending the tenancy on Flat B with Mr Y in February 2016. It reassured him he did not have to return to Flat B and could stay at Flat C until it had found alternative accommodation.
61. In mid April, Mr Y was told he would need to leave Flat C in two weeks. The following day, the Council advised that Mr Y would need to pay the rent on Flat B or it would end his tenancy. Mr Y’s housing benefit for Flat B had reduced because he had a spare bedroom.
62. At the end of June, the Council spoke to Mr Y about the unpaid rent on Flat B as he received a court summons. It agreed a schedule of repayment with Mr Y. The Council says it involved Mr Y’s family.
63. Early in August, the Council discussed paying bills on Flat B with Mr Y and his mother. The Council told the housing department that a return to Flat B would be detrimental to Mr Y’s health. At the end of the month, it advised Mr Y to end the tenancy of Flat B as he had no intention of returning there.
64. In mid-September, the Council met with Mr Y, his mother, and a social care practitioner. They discussed a potential council tax rebate and that his housing benefit was to end. Mr Y said he preferred to pay full rent to allow more time to move his belongings. The Council told Mr Y he would need to end his tenancy in November or pay full rent. Mr Y decided he wanted to keep Flat B until he moved to a new placement.
65. When the housing benefit was due to end as Mr Y had been in Flat C for one year, the Council agreed temporary support to help with the transition to a new home. In December, Mr Y confirmed he had received support to end his benefits for Flat B but had kept the tenancy at full cost.
66. In January and February 2017, the Council again raised the issue of rent arrears for Flat B and the option of paying the rent or giving up the tenancy. Mr Y’s advocate was involved. The Council suggested Mr Y could return to Flat B with a package of support but he declined this. He also declined an alternative provider to support him in property 3 which had recently fallen through. At the end of February 2017, the Council discussed the payment of rent again with Mr Y and said staff at Flat C would support him with this if he wished.
67. In April, the Council discussed payment of the rent on Flat B and his contribution to Flat C with Mr Y, it also said his time at Flat C would be limited. Mr Y declined a visit to property 2 which was out of the local area and in early May, he said he wanted to return to Flat B with a package of support. Mr Y declined a further property because he had decided on returning to Flat B and the Council agreed to arrange this. In mid May, the Council began looking for care providers with suitably trained staff and offered support with the training.
68. In February 2018, Mr Y and the Council agreed he would arrange for Flat B to be decorated before continuing the search for a care provider. Mr Y arranged for this to be completed in late February.
69. Despite many searches and calls to care providers, the Council was unable to find a suitable provider with capacity that could support Mr Y at Flat B. Mr Y remained at Flat C and remained responsible for paying the rent at Flat B. The Council says it is working with providers to increase the number of services which can offer staff trained in PBM.

Complaint handling

70. I have not described the detail of all Mr X’s complaints in this statement but have considered them in coming to my decision.
71. Mr X first complained about Mr Y’s circumstances on 28 October 2018. The Council responded on 21 December. Mr X asked for an independent person to oversee the complaint, but it was dealt with by a social worker who was acting up as a senior practitioner. She was also responsible for overseeing the events about which Mr X complained.
72. Mr X also complained because a member of staff from Flat C attended Mr Y’s appointments with his consultant psychiatrist. Mr Y got on well with staff and Mr X says many of them were “professional and compassionate”. However, this meant Mr Y felt unable to speak out about his unhappiness at the accommodation. Mr X has since arranged for only advocates to attend with Mr Y.
73. The Council says Mr Y is not detained, imprisoned, or deprived of his liberty. He can leave his accommodation when he wishes to do so. Staff are available 24 hours a day. Mr Y does not need a DoLS assessment or monitoring. It also says the Council has no responsibility to formally assess or monitor Mr Y’s human rights and it is “confident that human rights have been at the core of every assessment, support and interaction”. It said there was no need for a further social care assessment unless Mr Y’s circumstances changed. It discussed Mr Y’s flat with him in February 2017, and he said he wanted to return there. It found there was no undue pressure on Mr Y to return to Flat B.
74. The Council acknowledges that the difficulties in finding suitable accommodation and support has added to Mr Y’s anxiety about moving to more independent living. It apologises for its part in the delays and says it will continue to explore options for him. Its commissioning team has agreed to look at identifying a suitable care provider and to consider commissioning a bespoke package. It has allocated another social worker who can allocate more time to Mr Y’s situation and the senior practitioner will continue to oversee the case.
75. In respect of the financial situation, the Council says Mr Y’s rent obligation was included in his financial assessment and therefore reduced the contribution he had to pay towards his stay at Flat C. Mr X says Mr Y would also have been eligible for housing benefit if he had ended the tenancy at Flat B.

Was there fault which caused injustice?

76. The Council is correct that Mr Y does not need a DoLS assessment because he has capacity to make decisions about his care, although he may need support to do this.
77. We cannot say Mr Y would have been happier or experienced fewer outbursts had he lived elsewhere all this time. However, the Council found his needs would be best met in a supported living placement and should therefore have ensured this happened. It failed to do this and knowing that uncertainty would increase Mr Y’s anxiety, repeatedly failed to take the action needed to secure an appropriate placement. This meant Mr Y lost the opportunity to have his needs met adequately for over four years and his skills for living independently were significantly reduced. It also caused him significant and undue anxiety and stress throughout this time and, on the balance of probability, caused him significant harm. At the time of writing, this situation continues. I considered Mr Y’s changes of mind over his future accommodation. I have concluded they were, on the balance of probability, prompted by the lack of progress in achieving what had been agreed. It was clear from the outset that Mr Y wanted to leave Flat C and did not want to return to Flat B which the Council had said was unsuitable anyway. Mr Y was not responsible, to any degree, for the lack of progress in achieving another placement.
78. Whether Mr Y has a learning disability or difficulties, is not significant to assessing his needs which are not dependent on a diagnosis. However, Mr Y has been diagnosed and the process identified that he has clear difficulties. Mr Y’s needs around his social functioning, anxiety and outbursts are well documented elsewhere in the Council’s records. Any doubts about these difficulties should be raised with relevant health professionals who should be involved in the assessment. If the Council feels Mr Y needs to complete an IQ test it should arrange for him to be provided with the opportunity to complete a test which is fully accessible to him. I saw no evidence that the Council considered Mr Y’s wellbeing in the assessments I have seen, and the Council did not adequately respond to Mr X’s concerns.
79. I am concerned at how the Council arrived at the total of 18 hours of support for Mr Y when he leaves Flat C. This is a smaller package than that provided when the arrangement at Flat B broke down previously. Staff at Flat C have assessed Mr Y’s needs and concluded this is the amount of support he needs. However, Mr X has valid questions around the frequency of Mr Y’s outbursts and that Mr Y has only been provided with 18 hours a week support at Flat C in preparation for his move. The Council needs to address these in full. While assessments by care providers can be useful, the Council is responsible for ensuring these assessments accurately reflect the person’s needs. When Mr Y’s advocates raised questions about the accuracy of the assessment, the Council should have listened and properly considered the issues.
80. In the Council’s response to Mr X’s concerns about Mr Y not being able to leave his accommodation, it said “staff are available 24 hours a day”. This supports Mr X’s view that Mr Y just presses a button, and support arrives within minutes. I saw nothing to suggest staff provided the 18 hours only over set times reflecting when support would be available in the event of a move back to Flat B. In considering Mr Y’s needs, the Council should have questioned whether support at Flat C provided an adequate assessment, or preparation, for this level of support elsewhere. I note the Council has since increased this to 38 hours with background support at all other times.
81. This complaint was about the serious issue of Mr Y’s needs not being met; for almost two years at the time of Mr X’s first complaint. I am satisfied, given the level of injustice claimed and the evident seriousness of the issues, this complaint should have been overseen by someone more senior. The Council should consider whether it is appropriate now for Mr Y’s case to be overseen by the officer who did not ensure the Council dealt effectively with his complaint.
82. The Council has provided details of numerous occasions on which Mr Y’s family and advocates have been involved in his care. However, it is clear from the current situation that it did not hear what Mr Y was saying through his advocates. Mr Y has capacity to make decisions about who he wants to support him and these are the people Mr Y has chosen to speak on his behalf. If the Council had concerns that the advocates were not representing Mr Y’s views, it should have discussed this with Mr Y. Otherwise, it should accept that they speak on his behalf. If Mr Y did not want family or existing advocates to represent and support him, it should have arranged an independent advocate in line with the Care Act.
83. I am pleased to note the Council has now acknowledged its part in this and is trying to arrange suitable accommodation and support for Mr Y. It should do this as quickly as possible and may need to fund Flat C and another placement while adaptations are completed, or while Mr Y is safely supported to transition. In response to my draft decision, the Council said it accepted that it did not provide an effective response to Mr Y’s needs and this had a “considerable impact” on him. It said it is “committed to acting swiftly and decisively” while being sensitive to Mr Y’s anxiety around this.
84. The Council should ensure when it identifies the need for care workers with particular training, that it can provide this. It should not take two years of complaint and the Ombudsman’s involvement to trigger discussion with its commissioning team.
85. From the information I have seen, it seems unlikely a return to Flat B would be a suitable course of action. However, if at any point, the Council proposes Mr Y is to return to Flat B, it should ensure it has robust reasoning for this. It should evidence that the support it proposes will not leave him exposed to the risks which led to it removing him from Flat B in the first place. It should also have clear support for this proposal from Mr Y, his family and his advocates as it is clear from the complaint that Mr Y does not wish to return.
86. If Mr Y had not had to pay the rent for Flat B, it is likely his contribution for Flat C would have increased by a similar amount. However, the Council was at fault in the failure to follow through with its decision that Mr Y should move back to Flat B and make adequate arrangements. This caused Mr Y injustice because he spent money on decorating the flat unnecessarily.
87. Throughout these events, the Council fell short of the Care Act requirements. The Care Act is intended to protect human rights however public bodies still need to recognise when human rights are engaged and ensure they are addressed.
88. It is not the Ombudsman’s role to decide whether a council breached the Human Rights Act, this is for the courts. However, we can decide whether a council addressed a person’s human rights in their treatment of them. Mr Y’s Article 5 rights were engaged when he was unable to leave his home independently when he wished to do so. His Article 8 rights were engaged when the Council identified that he needed to move to other accommodation, and it did not arrange this. However, I saw no evidence the Council specifically considered these rights.

Agreed action

89. To remedy the injustice identified above, I recommended the Council:
1. Apologise to Mr Y, his family and Mr X in writing. This should set out the faults identified above and actions it has taken, or will take, to prevent similar faults in future and remedy the injustice it caused.
2. Pay Mr Y £5,000 for the stress, anxiety and harm this experience caused him.
3. Reimburse Mr Y with £1200 for the unnecessary redecoration of Flat B.
4. Pay Mr X £250 for the time and trouble he spent dealing with this complaint.

It should complete actions a) to d) within one month of the final decision and send evidence of this to the Ombudsman. Suitable evidence would include a copy of the apology letter and confirmation of the payments.

5. Urgently arrange a suitable placement for Mr Y taking all necessary action to progress this as swiftly as possible in consultation with Mr Y and his advocates.

It is not possible to put a timescale on this action, but the Council should provide evidence to the Ombudsman within three months of this final decision of the action it has taken to achieve this. This should include:

• Evidence of options considered and reasons for rejecting or progressing.
• records of discussion with Mr Y and his advocates about prospective accommodation and support packages.
• Details of specific additional support provided to Mr Y around achieving a successful move.
• Details of any action taken by the Council to create a suitable option for Mr Y, for example through the commissioning team.
6. Review assessment practice across the Council to ensure it is consistent and Care Act compliant with particular attention to those points referred to in paragraphs 18, 20, and 21 above.
7. Ensure staff recognise when human rights are engaged and that they are addressed.
8. Review any cases which have been waiting over one year for a placement, ensuring these are prioritised and progressed swiftly with due consideration of human rights.
9. Ensure staff responsible for responding to complaints, are adequately trained and able to identify where cases should be referred to more senior officers.
10. Ensure it has an effective mechanism for following up where complaints about poor practice have been received and to check that improvements are made and sustained.

The Council should complete actions f) to k) within three months of the final decision and send evidence of this to the Ombudsman. This should include an action plan showing specific actions and progress. Also records of staff awareness raising, details of training provided, and the outcome of the review and action taken.

90. The Council has agreed to complete these actions.

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Final decision

91. I have completed my investigation and uphold Mr X’s complaints that the Council:
• left Mr Y in unsuitable accommodation, that was intended to be temporary, for over four years.
• gave insufficient regard to Mr Y’s needs and human rights.
• did not deal adequately with his complaint.
92. I do not uphold his complaint that the Council failed to adequately involve family, advocates and relevant professionals. However, I do accept it failed to listen adequately to their concerns and this is upheld as part of the failure to deal with his complaint and give regard to his human rights.
93. I am satisfied that in completing the agreed actions, the Council will put right the injustice it caused as far as possible.

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Parts of the complaint that I did not investigate

94. I did not investigate part e) of Mr X’s complaint, that the Council failed to provide information as requested. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection and Mr X has done so.

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Investigator's decision on behalf of the Ombudsman