Summary: Ms X complained on behalf of her son, Mr Y, that Mr Y’s care provider, the National Autistic Society, failed to properly support him and manage his behaviour. She said her concerns about Mr Y’s escalating behaviour were ignored. The Council was at fault for failing to ensure it retained proper oversight of Mr Y’s care and support.

The complaint

1. Ms X complained on behalf of her son, Mr Y, that Mr Y’s care provider, the National Autistic Society, failed to properly support him and manage his behaviour. She said her concerns about Mr Y’s escalating behaviour were ignored.
2. Ms X felt this led to Mr Y being arrested twice and being served with an eviction notice. She considers this could have been avoided with proper support.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with an organisation’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 normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
7. Under our information sharing agreement, we will share this decision with the Care Quality Commission.

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How I considered this complaint

8. As part of the investigation, I considered the complaint and the information Ms X provided.
9. I made written enquiries of the Council and considered its response along with relevant law and guidance.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Mental Capacity

11. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
12. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
13. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

14. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
15. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.

Deprivation of Liberty Safeguards

16. The Deprivation of Liberty Safeguards (DoLS) 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. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation.
17. Once there is or is likely to be a deprivation of liberty, it must be authorised under the DoLS scheme in the Mental Capacity Act 2005.

What happened

18. I have summarised below some key events leading to Ms X’s complaint. This is not intended to be a detailed account of what took place.
19. Mr Y has autism spectrum disorder and displays obsessive behaviours. He can communicate his needs but has a learning disability. He was a resident in a home for autistic adults at St Edwards Close, Croydon for several years. The National NAS manage the home and the Council commissioned Mr Y’s placement.
20. Mr X attended a day centre where he received support designed to promote independence and develop personal skills. He could access the community on his own for limited amounts of time during the day.
21. Ms X told me there were incidents in the past where Mr Y hit members of staff, but it was few and far between. However, this started to become more frequent and more violent. She raised concerns about Mr Y’s escalating behaviour in January 2021.
22. Ms X did not consider it was suitable for the NAS to allow Mr Y unsupervised access to the community for an hour each day. She said the Council and NAS ignored her concerns.
23. Ms X felt the NAS missed triggers in Mr Y’s behaviour. She considers interventions like counselling and psychotherapy should have happened sooner.
24. In September 2021, Mr Y went to a former female staff member’s home after seeing her on the bus. He then attacked the care home manager when they tried to discuss the incident with him. The NAS called the police, and they arrested Mr Y.
25. The NAS then applied for emergency DoLS for Mr Y so its staff could go with him on trips into the community.
26. Ms X considers the NAS failed to support Mr Y through the resulting court process. She said he did not have capacity to understand and should not have been in court.
27. Ms X complained the NAS did not go with Mr Y to the police station when he was arrested and did not support him through the court process. She also said it did not keep her updated.
28. The NAS responded to Ms X’s complaint in May 2022. It said it was sorry it could not go with Mr Y to the police station, it did not have available staff and the police would not allow it.
29. The NAS said it had developed strategies to support Mr Y through the criminal justice process. It apologised these were not in place before. It also said sorry it did not communicate with Miss X as it should have.
30. Going forward, the NAS said it would develop a process for staff on how to support autistic people if they become involved in the criminal justice system. It also said it would offer Ms X and Mr Y a meeting to discuss the support in place, and a senior manager will check DoLS applications before they are submitted.
31. Miss X complained to the Council in June 2022. She was unhappy with the conduct of Mr Y’s social worker, who she said was neglectful and did not listen to her concerns. She was also unhappy with the way the Council engaged with the NAS.
32. The Council sent its complaint response in July 2022. It said there were no records of joint working between Mr Y’s social worker and the NAS, and no evidence family wishes were considered and acted on. It agreed it did not do well enough and needed to learn from the case.
33. The court later issued Mr Y with a restraining order lasting five years. He was not allowed to have any contact with the ex-carer.
34. The NAS was concerned Mr Y would breach his restraining order if he continued to access the community alone, as he did not understand or appreciate the meaning of the order. The NAS therefore again applied for DoLS to be in place for Mr Y.
35. Mr Y wanted to have his independence and did not understand why it had been taken away. This led to him getting upset and to more incidents of escalating and challenging behaviour.
36. Mr Y had a mental capacity assessment in October 2022 around moving to new accommodation. The assessor’s view was Mr Y did not understand or appreciate the meaning of the restraining order or the restrictions imposed on him. The assessor considered Mr Y lacked capacity to understand or decide on his accommodation arrangements. Ms X expressed the view Mr Y should stay in his current accommodation, for continuity. Carers thought Mr X may benefit from a new environment with possibly less restrictions.
37. The assessor considered it was not in Mr Y’s best interests to move. They thought a new location could have a negative impact on his mental health and may not solve the problems. They preferred Mr Y to remain in his current home, but with psychological input to help him appreciate the restrictions which had to be imposed on him.
38. In November 2022, Mr Y attacked a member of NAS staff, causing injury. The police arrested Mr Y for assault.
39. The NAS issued Mr Y a one-month notice to quit the home in November 2022. It said it could no longer support or protect Mr Y, or protect other residents and staff supporting him.
40. New DoLS were put in place for Mr Y in January 2023, lasting three months, while alternative placements were considered.

My investigation

41. The Council told me the NAS put measures in place after the incident in December 2021. This included DoLS, a risk assessment, regular meetings with management, and daily one to one support for Mr Y. Mr Y could not access the community without a member of staff.
42. The Council said Mr Y had support from the NAS manager, their deputy, Ms X, and two solicitors when he went through the court process. The solicitors raised the issue of Mr Y’s autism and obtained psychiatric reports. The court considered the reports and decided the case should still go ahead.
43. The Council told me Mr Y moved to a more supportive environment in March 2023. He is under DoLS and has been attending a day centre 5 days a week.
44. Ms X told me she had regular meetings and communication with Mr Y’s social worker since the NAS issued the notice to quit. She has been involved in discussions about a new placement, and feels there has been an improvement in the Council’s oversight of Mr Y’s care and support.
45. At first, Ms Y wanted Mr Y to remain at the same home, but with more support. She worried moving him to a new home would negatively impact his wellbeing and he would struggle to adjust. However, Ms Y now feels Mr Y was not getting the care he needed.

Analysis

46. I did not see evidence the NAS failed to support or supervise Mr Y, or that a lack of proper support and supervision led to his arrests. The evidence seen suggests Mr Y has a history of challenging behaviour which the NAS tried to manage and respond to, but could not prevent.
47. I found the NAS was committed to supporting Mr Y. I am satisfied its responses to incidents, and subsequent monitoring and planning, was suitable in the circumstances. I do not dismiss Ms X’s concerns and frustrations, but the NAS cannot eliminate all risk. It was under a duty to support Mr Y in the least restrictive way. It could not prevent him from accessing the community without the relevant DoLS in place.
48. The NAS apologised it did not have procedures in place to support Mr Y through the legal process. It said it would develop strategies around this to use in future, and I am satisfied that was a suitable response.
49. I did not see evidence to suggest a lack of support affected the result. The primary responsibility for Mr Y’s legal support rested with his solicitors. They got the relevant psychological reports for the court to consider before the trial. I appreciate Ms X considers Mr Y should not have stood trial, as he could not understand, but that decision rested with the courts. I did not see evidence of fault by the NAS in this regard.
50. Following the restraining order, Mr Y’s behaviour escalated again, due to the restrictions in place, and there were several incidents within the home. I can therefore appreciate concerns over staff safety, and why the NAS said it could no longer meet Mr Y’s needs, and suggested a move. I am satisfied the proper procedures were followed in considering this decision, with input from relevant professionals.
51. The Council accepted it could not show Mr Y’s social worker took account of her concerns or worked with the NAS. The NAS were responsible for Mr Y’s daily care and support, but it did so on behalf of the Council. The Council had a duty to ensure it kept proper oversight of Mr Y’s care and support. The Council cannot show it did so here. That was fault. This caused Ms X distress as she did not feel listened to, or that Mr Y was supported.

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Agreed action

52. Within four weeks of my final decision, the Council agreed to:
• Apologise to Ms X for not maintaining proper oversight of Mr Y’s care and support, and for the distress this caused.
• Remind staff in its adult care services of the importance of record keeping and ensuring proper oversight when using third party care providers.
• Follow up with the NAS to ensure it has plans in place to support residents who enter the criminal justice system.
53. The Council should provide us with evidence it has complied with the above actions.

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Final decision

I have completed my investigation. The Council was at fault for failing to ensure it retained proper oversight of Mr Y’s care and support.

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Investigator's decision on behalf of the Ombudsman