Summary: We have not found fault with the care plan the Agency provided, the support provided or the Agency’s attempts to obtain an advocate for Mr C. However, there has been fault, during certain times, related to timekeeping, staff availability and communication. Also, the Agency’s record keeping relating to a safeguarding incident was not in line with its policy. The Agency has agreed to apologise to Mr B and Mr C and pay Mr C £150.

The complaint

1. Mr B complains on behalf of his brother Mr C. Mr B said that Autism West Midlands (the Agency) did not have a care plan for Mr C, that it did not provide adequate support to Mr C, that its timekeeping and communication was poor and that it failed to properly address a safeguarding concern.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
3. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4
4. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
5. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

6. I have discussed the complaint with Mr B. I have considered the information he and the Agency have sent, the relevant law, guidance and policies and the comments on the draft decision.

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What I found

Law, guidance and policies

Council’s duties

7. The Care Act 2014 and the Care and Support Statutory Guidance 2014 set out the council’s duties towards adults who require care and support.
8. The council has a duty to assess adults who have a need for care and support. If the needs assessment identifies eligible needs, the council will provide a support plan which outlines what services are required to meet the needs.

Direct payments

9. A person can ask the council to provide the care and support set out in their care plan. A person can also choose to receive direct payments to arrange the care and support themselves.

Advocate

10. Local authorities must arrange an independent advocate to facilitate the involvement of a person in their assessment, in the preparation of their care and support plan and in the review of their care plan, as well as in safeguarding enquiries, if two conditions are met.
• If an independent advocate were not provided, then the person would have substantial difficulty in being fully involved in these processes.
• There is no appropriate individual available to support and represent the person’s wishes.

Mental Capacity

11. The Mental Capacity Act 2005 and the Code of Practice 2007 are the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves.
• Lack of capacity means a person lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken. A person may lack capacity to make some decisions, but may have capacity to make other decisions.
• The Act says a person must be presumed to have capacity unless it is established that he does not.
• Any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
• An independent mental capacity advocate can represent people who lack capacity if there is no friend of family to represent them.

Power of Attorney

12. A Power of Attorney is a document in which one person (the donor) appoints another person (the attorney) to act for him or her. 
13. There are two main types of powers of attorney. The first type is called an ordinary or general power of attorney. With ordinary powers of attorney, donors can appoint attorneys to look after financial/property matters only. Unless otherwise specified, an ordinary power of attorney will come to an end when the donor loses capacity.
14. The second type of power of attorney is called a Lasting Power of Attorney (LPA). With an LPA, donors can appoint attorneys to act in either personal welfare matters or property matters. An LPA only becomes effective once it has been registered. Provided the LPA was created while the donor was mentally capable, the LPA can be registered at any time. The LPA replaced the Enduring Power of Attorney in October 2007.

Agency’s Safeguarding policy

15. The Agency has a safeguarding policy which says that the safeguarding duties apply to an adult who:
• has needs for care and support (whether or not the local authority is meeting any of those needs)
• is experiencing, or at risk of, abuse or neglect
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.
16. Psychological abuse includes emotional abuse, humiliation, blaming, controlling, intimidation, coercion, harassment and verbal abuse. Discriminatory abuse is abuse motivated by discriminatory attitudes, feelings or behaviour towards a person because of their disability.
17. The policy says staff have a duty to report promptly any concerns or suspicions that an adult with care and support needs is being, or is at risk of being, abused.
18. The policy describes the safeguarding process which has five stages:
19. Stage one:
• Make a detailed note of what you have heard, or seen, but do not delay passing on the information quickly to your line manager or on call employee if out of hours.
20. Stage two (action to be taken by service manager or on call manager):
• Listen to the person and ensure that they have recorded precisely and factually what they have observed, heard or witnessed quoting dates and times.
• Where there is a concern, the manager should alert a number of agencies including social services within 24 hours.
• Where there appears to be no cause for concern, the manager must discuss this with the operations manager and agree a course of action. If it is decided by the operations manager that it is not necessary to make a referral to social services, they must be aware that they might be asked to account for their decision at a later date. This decision should be recorded explaining the reasons why a referral was not made.
• The manager should create a case file containing all relevant incident forms. This file is to be kept with the manager.
21. The further three stages include the actions of the Council’s social services and are not relevant to Mr B’s case as the Agency did not alert social services.
22. The policy says it is essential to consider whether the adult (who is at risk of abuse) is capable of giving consent to a safeguarding enquiry going ahead or to an intervention. If they are able to give consent and refuse, their wishes will be respected, unless there is an aspect of public interest or a duty of care on a particular agency to intervene (for example if a crime was committed).

What happened

23. Mr C is an adult man who has additional needs for support.

The Council’s care plan

24. The Council’s social worker assessed Mr C in March 2015 and wrote his care plan. The care plan said:
• In terms of mental capacity, the social worker said Mr C had the capacity to make day to day choices, he could choose how to spend his time, what to wear, what to eat and so on. He also had capacity to manage his day to day expenditure, but lacked capacity to make complex financial transactions.
• Mr C had been receiving floating support from the Council’s Floating Support Service. However, this did not meet his needs fully so the Council carried out a reassessment.
• Mr C lived in a housing association property. There had been historic and recent incidents involving Mr C which had led to the housing association writing to Mr C. Incidents included Mr C going into other properties, Mr C tampering with the electrics, hitting his boiler with a hammer and threatening other tenants.
• Mr C was not engaged in any work or activities. These had been explored in the past, but had broken down for a number of reasons…’either because of the inflexibility of the organisation or because [Mr C] was too high functioning in comparison with other participants.’
• Mr C had been referred to a local charity and they had forwarded information regarding courses, volunteering and drop-in services.
• Mr C needed support to attend medical appointments, but this support would be provided by his mother.
25. The social worker concluded that Mr C needed 21 hours flexible support. One of the reasons was that Mr C may pose a risk to himself and others. These risks included altercations with other tenants, eating and refusing to throw away out of date food, agitation about his boiler, an over-estimation of his abilities to repair things which needed professional input, for example the electrics.
26. The role of the support worker was to support Mr C in considering the outcomes of his actions and the risks they may bring and to de-escalate the situation.
27. Other tasks which Mr C needed support with included: maintaining a clean home, laundry, changing bed linen, planning a menu and shop for food, checking the fridge for out-of-date food, accessing the community for activities of Mr C’s choice.
28. The plan said the social worker would refer Mr C to its Mental Health / Learning Disability Service which provided support to people in the community.

The Agency’s care plan

29. The Agency started to support Mr C in August 2016. The Agency initially provided 18 hours support a week and this increased to 21 hours support at the end of 2019.
30. The Agency’s care plan for Mr C said:
• In terms of communication, staff should talk in short sentences to Mr C and give him time to process what they were saying. They should only give him two choices and explain the consequences of bad choices.
• If Mr C was unhappy about a decision, he may raise his voice and he had thrown things around and damaged property. If the behaviour continued, staff had to leave the flat for their own safety.
• Mr C wanted another pet, but staff should explain that the housing association would evict him if he had another pet.
• Mr C could go into the community confidently. However, he may interact with strangers who may cause him harm. Staff should discuss appropriate communication during support in the community.
• Mr C needed support to cook meals and should be encouraged to buy healthy options. He should be supported to do his shopping each week. He should be encouraged to eat the food that he had bought before it went out of date.
• If out of date food had to be thrown away, staff should explain the reasons why. Staff should let Mr C choose to throw the product away.
• Mrs D managed his bills for him. Mr C needed support to attend appointments and to check through post. He had, in the past, opened accounts and been sent credit and store cards. Staff should inform Mrs D if this happened again.
• Mr C could choose which activities he wanted to do each day.
• Mr C had a cleaner but needed support to ensure his home was tidy. The flat tended to be cluttered because Mr C kept a lot of things such as receipts, print outs, electrical equipment. Staff should support Mr C to tidy those up, but should involve Mr C. If staff threw things away without Mr C’s consent, Mr C would remove them from the bins after the staff had left.
• Mr C could do most chores such as cleaning, tidying, laundry, but needed encouragement.
• Mr C could shower independently, but needed to be encouraged to do so.
• Mr C had attended physiotherapy sessions for pain in his lower back/hip area, but did not complete the recommended exercises as he did not see improvement after one or two sessions.
• He needed to be reminded and prompted to attend medical appointments. He may require staff to change their shift times to attend appointments with him.

Weekly support planner

31. The Agency also had a weekly support planner for Mr C. This set out in more detail what the support worker would do each day that week. Some activities, for example walking the dog, tidying and personal care would happen most days, but other activities such as doing the weekly shop or having a breakfast outside the home would happen on specific days.

Fast food restaurant incidents

32. Mr C frequently attended a fast-food restaurant which was near his home.
33. The support worker who accompanied Mr C to the restaurant said that, in November 2017, she witnessed a restaurant staff member shouting abuse at Mr C. The staff member then involved other customers in what was described as ‘public mocking’.
34. There were further incidents at the restaurant in the following weeks where Mr C was sworn at and verbally abused, called swearwords and a ‘retard’. There were other times the restaurant staff cajoled Mr B into cleaning tables, mopping the entire restaurant floor and emptying the bins in exchange for food.

Email from Mr B – April 2018

35. Mr B sent an email to the Agency in April 2018 as he was not satisfied with the support Mr C was receiving. His concerns were:
• What objectives did staff have to fulfil when they supported Mr C?
• One of Mr C’s support workers had left and Mr B questioned what action the Agency was taking to find a replacement.
• He questioned the Agency’s lack of action in relation to the fast-food restaurant incident.
• He suggested the manager should visit Mr C to see what was really happening.
• He wanted a re-assessment of Mr C’s needs and a review of the care plan.

Emails from the Agency – May 2018

36. The Agency replied in May 2018 and said:
• It was in the process of recruiting ‘bank staff’. Once this had happened, the staff would shadow Mr C’s support worker to learn how to support Mr C.
• The manager had shadowed one of Mr C’s support sessions and said support was being provided in line with the care plan.
• The Agency could not disclose Mr C’s care plan to Mr B without Mr C’s consent.
• The Agency had requested a social worker be allocated. The social worker could assess whether the care plan met Mr C’s needs. Only a social worker could refer Mr C to an advocate.
• The Agency had complained to the fast-food restaurant. The restaurant had acknowledged their complaint and had forwarded it to the manager, but no reply had been received.

Further emails – June 2018

37. Mr B questioned why, if the manager visited Mr C, he did not ask him for the consent to disclose the care plan. He continued to be concerned about the delay in finding replacement staff. The Agency pointed out that there had been further meetings between the family, Mr C and the Agency and the disclosure of the document was not discussed there either.

Emails to the Council – June to September 2018

38. In June 2018 Mr C’s support worker wrote to the Council to ask them to appoint a social worker for Mr C. She said the social worker needed to review Mr C’s care plan and to help with some concerns regarding mental capacity. She also asked that an advocate was assigned to Mr C.

Meeting on 10 August 2018

39. On 10 August 2018, the Agency held a meeting with Mr C’s mother, Mrs D, to discuss the concerns the family had.
40. The family felt that the fast-food restaurant incidents were a safeguarding matter and that the Agency had not done enough to protect Mr C. The Agency said:
• The Agency had no control over the fast-food restaurant’s actions.
• It was limited in what it could do as it only supported Mr C for 18 hours a week and he frequently attended the fast-food restaurant on his own, when staff could not help him.
• The fast-food restaurant had responded that it was looking into the matter and was trying to identify the staff involved. However, there had been a high turnover of staff.
• Mr C would benefit from having more a more structured activity when he was not supported by the Agency. The Agency had suggested some options but Mr C would need an allocated social worker.
• The Agency called the Council three times in June 2018, twice in July 2018 and twice in August 2018 to try to get a social worker allocated to Mr C.
• The Agency had raised the concerns around Mr C’s vulnerability in relation to the fast-food restaurant and other incidents with the Council and had been informed that they would ‘look at allocating a worker.’ The Agency had called the Council again yesterday and the day of the meeting.
41. The family felt that Mr C was not getting the support he needed and Mr C was struggling with managing his flat and may get evicted.
42. The Agency said that it was sometimes difficult to engage Mr C in the support and in cleaning the flat, but that this was not the reason why the housing association was considering action. The housing association’s concerns related to Mr C accessing void properties and his interactions with the neighbours.
43. The family questioned Mr C’s capacity to make decision around his support and were concerned about his vulnerability when he was not receiving support. The Agency said it had asked for a social worker’s input and the Council could make a referral to an IMCA. They also discussed volunteering options as the family felt that boredom increased Mr C’s problem behaviour when he was on his own.

Mr B’s complaint – 5 April 2019

44. Mr B made a formal complaint on 5 April 2019 and said:
• Mr C needed ‘specific care, not just enablement to merely survive in his flat with his dog.’ He wanted a ‘thorough needs assessment rather than a ‘here and now’ palliative approach.’
• He had been asking for Mr C’s care plan for two years to understand what staff were trying to achieve with the support. Neither he nor Mrs D, who held a power of attorney for Mr C, had seen the care pan. Mr B suspected there was no plan.
• There had been ongoing problems with levels of staffing and with staff not attending on time or failing to attend when scheduled. Sometimes staff did not turn up when scheduled and failed to inform Mr C or the family, which had been the case in the last couple of weeks. Staffing was provided by one member, which meant there was no back-up staff.
• A key member of staff left suddenly without notice. Around the same time, Mr C’s game console was stolen.
• He complained about the Agency’s failure to safeguard Mr C from harm, in relation to the incidents at the fast-food restaurant. The Agency only addressed this months after the event, after Mr B had raised it with them.
• Mr C had suffered with significant lower back and leg pain for six months and it was only after Mr B intervened that Mr C got medical attention. Staff should have done this, particularly as the GP surgery was across the road.
• He questioned the support in terms of nutrition as Mr C was becoming obese.
• Mr C said staff spent most of the time just sitting around. They seemed poorly motivated to do any activities.
• The Agency failed to provide Mr C with an advocate.
• Mr C spent most of his days at home and was bored. The Agency failed to be proactive or link Mr C up with activities, clubs or voluntary work.

Agency’s reply dated 3 May 2019

45. The Agency replied on 3 May 2019 and said:
• A lot of the concerns that Mr B had raised should be raised with the Council, not the Agency.
• In terms of obtaining consent to disclose the care plan, the Agency said Mr C withdrew from conversations about paperwork and ‘all it would take would be for your brother to express his views that he is willing to share his plans with his family. To date this has not happened.’
• Mrs D had an ordinary power of attorney for Mr C but this power of attorney was based on Mr C having capacity so this meant that it was ultimately Mr C’s decision whether he wanted to share information or not.
• The Agency accepted that it had relied too much on one member of staff who worked a lot with Mr C and who was well liked by him. The Agency also acknowledged there had been times when this person had changed the hours of support at short notice. This should have been communicated to the managers but this did not happen. The Agency apologised for those failures.
• That member of staff left suddenly because she had been offered an alternative job. There was no record of a theft of a game console.
• The Agency was limited in what it could do in terms of supporting Mr C. It could encourage, support and persuade Mr C, but could not force him to do anything.
• The Agency accepted it had difficulties in recruiting and retaining staff and said this reflected a larger problem in the sector, caused by underfunding by local authorities.
• The incident at the fast-food restaurant was followed up by the manager. The challenge was that Mr C did not want this to be followed up in a formal manner because he wanted to continue to attend the restaurant. The police would not have pursued the matter, nor would the safeguarding authority.
• Mrs D had the responsibility to support Mr C in his health appointments.
• In terms of nutrition, the Agency could not control what Mr C ate, particularly as it only spent 18 hours a week with him. The support workers supported Mr C in throwing out the food that was out of date, but there was no point in throwing the food in the bin, as Mr C would only retrieve it.
• An IMCA and an advocate had been considered, but it was the Council’s role to provide these. The Agency had requested these and it was the Agency’s understanding that an advocate had been provided.
• The Agency had suggested voluntary activities but Mr C was not motivated to do them.
• The Agency agreed that Mr C needed a thorough care assessment but said this was the Council’s duty, not the Agency’s. The biggest issue with the care plan was that it only provided for 18 hours of support and for the rest of the time Mr C was unsupported.

Further emails to the Council – July 2019

46. There were emails in July, August and September 2019 from the Agency to the Council asking for updates on whether an advocate or an IMCA could be appointed for Mr C, asking for a meeting to discuss a support needs assessment for Mr C.
47. The social worker responded in October 2019 and said, as Mr C had family to provide advocacy for him, an advocate or IMCA would not normally become involved, unless ‘there are lots of disputes or not acting in the best interest of this individual.’
48. The Agency replied that it felt that an IMCA would be helpful as they could give an independent view and voice to Mr C in the ongoing discussions about his capacity.

Further complaint correspondence

49. Mr B was not satisfied with the complaint response and continued to question the Agency’s support. He also said Mr C was due to have four hours of support from 2 pm to 6 pm on 30 August 2019. However, nobody turned up and nobody contacted Mr C about this.
50. A director of the Agency reviewed the response on 7 October 2019 and suggested the following actions:
• There had previously been some inconsistency and overreliance on single staff members as well requests from the family for certain staff or sessions to be changed. The Agency would ensure it would maintain the stability of the staffing rota.
• The Agency would review and revise, if necessary, the support agreement, to provide more detail as ‘this currently is quite basic in terms of how it details the scope, range and remit of what is offered.’
• Redevelop and implement a revised weekly schedule of support activities.
• Agree the frequency of communications.
51. I have not received any evidence relating to these recommended actions, and I understand the Agency then gave notice in April 2020 and now no longer supports Mr C.

Other information

Fast food restaurant incidents

52. I asked the Agency to send me any records relating to the fast-food restaurant incidents.
53. The Agency said it was difficult to find the records as the people involved had left the Agency.
54. The Agency said the matter was made more difficult as Mr C had told them, at the time, that he did not want to complain or do anything that may threaten his attendance at the restaurant and he had the capacity to make that decision.
55. The Agency said the manager discussed this with the support worker and it was agreed that the support worker would send an email to the restaurant about what they observed, in their own right as a support worker.
56. In its response the Agency said the support worker sent the email around December 2017/January 2018, but the Agency did not have a copy of the email as the support worker had left.
57. The Agency said it sent the email again on 19 April 2018 and provided me with a copy of that email.
58. The restaurant responded in May 2018 and said the complaint had been forwarded to the manager of the restaurant. The Agency chased the matter in July 2018 and the restaurant said it would investigate, but it is my understanding there was no further response after that.
59. I contacted the Agency again as I wanted to double-check there were no other records, particularly as I had, by then, received the Agency’s safeguarding policy.
60. The Agency then explained that the support worker sent the letter in February 2018, after Mrs D raised her concerns. The Agency sent me a copy of the email to Mrs D.
61. The Agency sent me a supervision record of Mr C’s support worker of February 2018 which shows the manager discussed the issue with the support worker.

Agency’s records

62. I asked the Agency to send me the daily records for Mr C for March 2019. I wanted to see these records both to find out whether there were any problems in terms of timekeeping by the support workers and to see what support the worker provided on a day-to-day basis.
63. I found the following in terms of time-keeping. At the time Mr C was meant to receive 18 hours of support a week. This was split into four days where he received four hours a day and one day (Wednesday) where he received two hours support a day.
64. The records showed:
• Week 1. Mr C received three days of support and a total of 9 hours of care.
• Week 2. Mr C received two days of support and a total of 8 hours of care.
• Week 3. Mr C received four days of support and a total of 14 hours of care.
• Week 4. Mr C received four days of support and a total of 14.5 hours of care.
65. The Agency commented that Mr C or his family often cancelled support at short notice which made it more difficult for the Agency to plan support. The Agency included a schedule which showed that, in the period from 3 May 2019 until 27 March 2020, there were 17 requests for change by Mr C or the family and only one time support was cancelled because a staff member was unable to attend.
66. However, as Mr B’s complaint was made in April 2019, the period the Agency had provided did not really relate to the time period Mr B complained about. I asked the Agency to provide me the same information for the last six months of 2018. The Agency said it was unable to provide this information as it only started the logs in May 2019.
67. The Agency also explained that, when Mr C started receiving support, Mr C had two support workers, but the family were not happy with one of the support workers. This meant Mr C had only support worker and there was no back-up if that person was not available. Mr C’s only support worker then left in September 2018 which made it difficult to provide the support for Mr C. The Agency acknowledged there had been problems in 2018 but said ‘this became a rarity in 2019/20 when support workers familiar to [Mr C] increased in number.’
68. The Agency stressed that it only invoiced Mr C for support provided.
69. I also checked the detailed records to find out what support the support worker provided.
70. During most of the sessions, the support worker followed the care plan. The support worker encouraged Mr C to shower and to walk and feed his dog. They encouraged Mr C to cook, clean and do laundry and would often do some of the tasks themselves. They often looked through the fridge to check for out of date food and they also found food that was in date and encouraged Mr C to eat this for his dinner. On some days they went food shopping or went into the community. One day was spent taking Mr C to his eye appointment.
71. The notes showed the challenges of supporting Mr C, as Mr C was sometimes focussed on his plan to buy a cat and his continued issues with his boiler.

Comments from the Agency

72. The Agency has made further comments relating to the complaint:
• The manager of the Agency said he asked Mr C whether he could share his care plan. He said Mr C was ‘reluctant to answer instead shrugging his shoulders and disengaging.’ He said Mr C had a copy of his care plan at the flat so Mr C could have shared this if he wanted to.
• The Agency recognised that ‘for a time we were reliant on just one support worker and when this support worker left in September 2018 it was more challenging to provide the full hours of support for [Mr C] for an initial period.’
• ‘We therefore accept that due to the specific nature of the support workers required to suit [Mr C’s] needs, due to the specific demands and dynamic with the family and their expectations, in 2018 when it was harder to deliver his full 18 hours a week than in subsequent years.’
• One of the support workers who directly supported Mr C explained the challenges. She said it could take an hour of prompting to encourage Mr C to get out of bed or carry out his personal care. Mr C was sometimes not in when the worker arrived. Mr C would ask for a new pet throughout his shift and she would have to redirect him. If she tidied up the flat, he would put things back from where they had been moved. If she put food in the bin, he would get it back out and put it back in the fridge.
• The support worker also explained that she would offer activities but Mr C would decline or he would suggest activities too late in the day, when there was not enough time.
• The Council’s care plan said that Mrs D would support him with medical appointments but staff also supported him. One of the directors observed a support session in October 2019. She said Mr C had back pain, but refused to take his medication, despite a lot of encouragement by the support worker. He was persuaded to book an appointment with his GP for that evening for his back pain.
• In response to the missed support sessions in March 2019, the Agency said that in February 2019 one of Mr C’s support workers was removed at Mr C’s and the family’s request and a senior support worker was recruited in April 2019 to replace him.
73. The Agency also made further comments on the issue of the staffing problems in its response to the draft decision. The Agency said it did everything it could, after the problem had been identified in 2018 to recruit more staff. It said it recruited six different staff before March 2019, but there were continuing difficulties as either Mr C or the family were not willing to work with the staff. However, it said matters improved after March 2019 and more staff were recruited on a permanent basis.

Comments from Mr C

74. I asked Mr C whether he raised the issue of the game console with the Agency at the time that it had happened. Mr C said he told the manager the game console had gone missing, but did not say that this was related to the staff or make any allegation of theft.
75. I asked Mr C whether he wanted the Agency to complain about the fast-food incident and he said he did. I said the Agency had said Mr C did not want the Agency to complain as he was worried that complaining would mean that he would not be able to go to the fast-food restaurant. I asked if that was true and he said: ‘Yes, a little.’

Analysis

Mental capacity

76. I will firstly address the issue of Mr C’s capacity as it is an underlying theme in the complaint. There was a difference of opinion between the family and the Agency about Mr C’s mental capacity. My role is not to assess Mr C’s mental capacity of course, but rather whether there was any fault in the Agency’s approach which was to say that Mr C had the mental capacity to make decisions about his day to day living.
77. I note the Council’s social worker carried out an assessment of Mr C’s mental capacity. She said Mr C had the capacity to make decisions about his day to day living, but lacked capacity to make complex financial decisions.
78. The Agency accepted this assessment and proceeded on that basis. I find no fault in that approach.
79. I agree with the Agency that the power of attorney document that Mr C had signed was not that relevant to his situation. That document really related more to people who had capacity but would like their financial affairs to be managed while they were not able to do so, for example when they were on holiday. That was not the case here.
80. I also accept that Mr C had the capacity to make a complaint. I have spoken to Mr C and he told me he agreed with Mr B representing him in this complaint to the Ombudsman so I have proceeded on that basis.

Care plan

81. I will firstly address the Agency’s refusal to share the care plan with Mr B. I agree with the Agency that, as Mr C had the capacity to decide whether he wanted to share the care plan with Mr B, the Agency needed Mr C’s consent to do this.
82. The Agency then continuously said Mr C had not given consent so it could not share the plan.
83. However, I can only find one reference to the Agency staff asking Mr C whether he agreed to share the plan and Mr C’s response was to shrug his shoulders. The Agency has not provided evidence that it tried to engage with Mr C about this issue or asked him again what his view was. I would have thought that would be good practice. However, I accept that the family could also have asked Mr C for his consent.
84. Mr B complained that Mr C’s care plan did not meet Mr C’s needs and questioned whether there was a plan as he had never seen it.
85. The Agency has provided me with a copy of the care plan so I do not uphold the complaint that there was no care plan.
86. I think it is useful to explain what a ‘care plan’ is and what the difference is between the Council’s care plan and the Agency’s care plan.
87. It is the Council’s legal duty to assess a person’s needs for care and support. If a person has eligible needs, the Council then provides them with a care plan which sets out how the needs will be met and a personal budget which sets out the cost of meeting the needs. That is the Council’s care plan.
88. In most cases, where an agency provides care, the agency will then produce its own care plan, based on the Council’s care plan and personal budget, which gives more details about what the support will look like on a day-to-day basis.
89. Mr B has not complained about the Council’s actions, only the Agency’s. I can therefore not investigate the complaint that the care plan did not meet Mr C’s needs as that complaint should be better addressed to the Council, not the Agency.
90. I have considered the Agency’s care plan. The plan mirrored the Council’s care plan but gave further detail, so overall I cannot say there was fault in the plan.

Lack of advocate or IMCA

91. Mr B complained that Mr C had not been allocated an advocate or an IMCA to support him in his complaint. I have not found fault in the Agency’s actions in that respect. There is evidence the Agency asked the Council to appoint an advocate or an IMCA, but the Council refused as it said Mr B had family to assist him.

Support provided

92. Mr B also complained about the support the Agency provided.
93. There were two main elements to this complaint, the first element related to the Agency’s poor timekeeping, no shows and lack of communication and then there was the complaint about the quality of support provided.
94. In terms of the timekeeping, it was difficult to investigate Mr B’s complaint as he did not provide any times or dates when the support was missed which is why I asked to look at a random month (March 2019).
95. The Agency pointed out that one of the contributing factors to the problems of staffing in 2018 was that the family had rejected a support worker and the other support worker then left in September 2018. I accept this but these problems could have been avoided by not relying on a limited numbers of support workers.
96. I accept that Mr C and the family may have cancelled appointments at short notice which made time-tabling more difficult. I have taken these factors into consideration.
97. However, I note that the Agency upheld the complaint about the timekeeping and poor communication. The Agency admitted that it relied too much on one member of staff in 2018 and that this person did not always inform the managers of the changes in the timetable. I agree this was fault.
98. The Agency admitted there were problems with the support in 2018, but said it changed its practice in 2019 as a result of the complaint.
99. The records of the random month I asked for (March 2019) showed there were still problems. There was not one week during that month when Mr C received the support he should have received. The Agency admitted that, on two of those days, the absence related to staffing issues. I am also concerned that during one week, Mr C only received 8 hours of care and during another week 9 hours of care.
100. However, I accept that the Agency was trying to address these problems in 2019 as a result of the complaint that had been made.
101. I appreciate that Mr C did not suffer a financial injustice as a result of this as he was not charged when the care was not provided. I also accept that he may have cancelled the support at short notice and this may have been a contributing factor. However, as Mr C needed 18 hours of support and did not always receive this, he suffered an injustice in that his needs may not have been met as well as they could have been during that time.
102. In terms of the actual support provided by the support workers, I cannot find evidence of fault from the records that I have seen. The records showed that the support workers followed the care plan and tried to support Mr C. It was often difficult to motivate Mr C as he had clear ideas of what he wanted to do and he had the mental capacity to make those choices.
103. Mr B raised concerns about Mr C’s weight, but it would be difficult to find fault in this area as Mr C had capacity to make his own food choices. There was evidence that the support workers encouraged Mr C to eat healthy food, but their powers were limited in this regard. They could not force Mr C to eat what he did not want or stop him from eating what he wanted. Also, as the care plan only allowed for 18 to 21 hours support, Mr C had a lot of time when he was not supported.
104. There was a related complaint about Mr C’s main support worker leaving suddenly and this was linked to an allegation of theft by this member of staff.
105. I have not found any evidence in relation to the allegation of theft. It does not appear that Mr C ever complained about a theft. Mr C had a lot of electronic equipment which he sometimes swapped with other people. I also accept that the departure of the support worker was related to another job opportunity. Therefore, in light of the lack of any evidence of theft, I do not uphold this complaint.
106. I have also considered the complaint that the Agency did not provide enough stimulating activities for Mr C. Generally speaking, the Council’s care plan should consider what activities a person can do and what the Council would fund. The Agency’s care plan could also help in this matter, but any funding would be restricted by Mr C’s personal budget set by the Council.
107. I note the Council’s care plan said that Mr C had not engaged with work or learning activities for a number of reasons and that he had been provided with information of courses, volunteering and drop-in services.
108. There is evidence, from the information that I have seen, that the Agency engaged Mr C in day-to-day activities and that the Agency offered activities which Mr C declined. The Agency could only encourage and suggest activities, but could not force Mr C to engage in them. Therefore, I find no fault in relation to this.
109. I have also considered the complaint that the support staff did not take Mr C to the GP about his back pain.
110. The Agency said it was Mrs D’s role to take Mr C to appointments. I agree that the Council’s care plan said this but the Agency’s care plan contradicted this as it said it was the support worker’s role. In any event, my understanding of Mr C’s complaint was not that the Agency was not taking Mr C to appointments, but rather that it was not encouraging him to make an appointment for his back pain.
111. However, that would be a difficult complaint to uphold. From the documents it appeared that back pain was an ongoing issue for several years and I cannot say whether the symptoms were worse in the six months Mr B referred to. I accept there was evidence that staff encouraged Mr C to make an appointment about his back pain in October 2019, but Mr B made his complaint in April 2019 so this appointment was after the complaint.

Safeguarding incident

112. I have investigated whether there is any fault in the way the Agency responded to the safeguarding incidents at the restaurant. I have done this with reference to the Agency’s safeguarding policy.
113. The policy says that, if there is an incident that could potentially be a safeguarding concern, the employee should make a detailed incident record (stage 1) and then report it to their manager (stage 2) who will then decide whether it meets the threshold for further investigation. They should involve the person who is the victim and ask them if they want to pursue an investigation.
114. If the manager decides that the matter does not meet the threshold of a safeguarding concern, they should keep a detailed record of their reasons as they may be asked to account for their decision at a later date. They should create a file which contains the relevant incident forms.
115. Unfortunately, there are no records relating to Mr C’s safeguarding incidents until February 2018.
116. I would have expected for the basic documentation such as a record of the incident(s), the conversations with Mr C and the reasons for the manager’s decision not to take further action, to be documented, in line with the policy. The Agency’s failure to do so was fault.
117. The Agency said the support worker raised the matter with the manager when it happened (presumably in November 2017) and the manager considered matters. The Agency says it was agreed that the support worker would write to the fast food restaurant to complain, but did so from her own account so the Agency is not able to provide the evidence of this email. I accept this may have happened, but the . The Agency then changed its approach once the family became involved and then decided to write to the restaurant. But, again there were no documents to explain the change of approach.
118. It is difficult to say whether Mr C suffered an injustice as result of this. It may be that, even if the Agency had properly documented matters, in line with its policy, the decisions would have been the same. The main injustice is that, because of the lack of documentation, the decision making cannot be properly scrutinised which will always leave an element of uncertainty.

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Agreed action

119. The Agency has agreed to take the following actions within one month of the final decision. The Agency will:
• Apologise in writing to Mr B and Mr C for the fault.
• Pay Mr C £150 as a symbolic amount for any distress suffered by the fault I have found.

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Final decision

120. I have completed my investigation and have found that the Agency’s actions have caused an injustice. The Agency has agreed the remedy to address the injustice.

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Investigator's decision on behalf of the Ombudsman