Summary: Ms X complained about the Council’s failure to properly conduct a mental capacity assessment for her adult child, Mr Y. She also complained about the Council’s delay and failure to support Mr Y with getting an alternative suitable accommodation after he was evicted from his previous placement. Ms X said the Council’s failings led to Mr Y mismanaging his finances and the matter caused her and Mr Y distress, inconvenience and time and trouble. There were some faults by the Council which caused injustice to Mr Y and Ms X. The Council will take action to remedy the injustice caused.

The complaint

1. Ms X complained on behalf of her adult child, Mr Y.
2. Ms X complained about the Council’s failure to properly conduct a mental capacity assessment for Mr Y, in relation to his finances. As a result, she said Mr Y mismanaged his finances by emptying his bank account on two occasions and he was unable to pay his bills and buy food.
3. Ms X also complained about the Council’s delay and failure to support Mr Y with finding and securing an alternative suitable accommodation after he was served an eviction notice by his previous placement provider.
4. Ms X said the Council’s failings also caused her and Mr Y time and trouble, distress and the inconvenience looking for and securing an alternative suitable accommodation for Mr Y.

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The Ombudsman’s role and powers

5. 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)
6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
8. 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)

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How I considered this complaint

9. I discussed the complaint with Ms X and considered the information she provided. I considered the information the Council provided in response to my enquiries.
10. I sent Ms X and the Council a copy of my draft decision and considered all comments received before reaching a final decision.

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What I found

Legislation and Guidance

11. The Care Act 2014 states councils must assess any adult that appears to have needs for care and support. An adult’s needs arise from or are related to physical or mental impairment or illness; the adult cannot achieve two or more specified outcomes because of those needs, and there is likely to be a significant impact on the adult’s wellbeing.
12. Once a council has determined a person is eligible, it must set out the person’s needs and how the council will meet those needs in a Care and Support Plan. The council must meet those identified eligible needs. This includes securing a suitable alternative placement which meets the person’s identified needs as agreed in the person’s Care and Support Plan.

Mental Capacity

13. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. Where someone’s capacity is in doubt, councils must assess the person’s ability to make a decision. Councils must follow the law set out in the Mental Capacity Act 2005 to decide if individuals can make choices about their care and may need to carry out an assessment of capacity if there is doubt.
14. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
15. Capacity is decision specific, can vary over time and an assessment may become outdated.

What happened

16. This chronology includes key events in this case and does not cover everything that happened.
17. Mr Y has learning difficulties and some other health conditions.
18. Mr Y lived in a supported living placement with Company A which was commissioned by the Council.
19. In May 2022, Company A and Ms X contacted the Council respectively. Both raised concerns about Mr Y’s ability to manage his finances despite some measures which had been put in place by Company A and Ms X to support him. Company A and Ms X asked the Council to conduct a mental capacity assessment (MCA) for Mr Y in relation to money management.
20. Mr Y’s social worker (SW) conducted an MCA for him. The SW found Mr Y understood the importance of money management, but he had made unwise decisions when he evaded the existing measures that were put in place to support him. The MCA outcome was that Mr Y had full mental capacity to manage his finances, but that he needed additional support to reduce any potential risks. Ms X disagreed with the MCA outcome. She reported Mr Y had emptied his bank account on a couple of occasions and he was unable to pay his bills. Ms X maintained Mr Y did not have capacity to manage his finances.
21. Due to the dispute about the MCA outcome, the Council decided to conduct a further MCA for Mr Y. The second MCA outcome was that Mr Y lacked the capacity to manage his finances.
22. Following some incidents between Mr Y and other residents within the placement, Company A served Mr Y with a four-week eviction notice, which was to expire in mid-July 2022. Company A notified the Council about the eviction notice.
23. The first significant action from the Council to look for alternative placement for Mr Y appeared to be eight days before the expiration of the eviction notice. The Council looked for and identified several alternative placements for Mr Y through its brokerage team. The Council sent the list of the identified placements to Mr Y’s family. The Council asked Mr Y’s family to contact the alternative placements, decide which property was the most suitable for Mr Y and to let the Council know once the necessary assessments had been completed.
24. Ms X said she called the alternative care providers, and she visited the properties with Mr Y. Ms X said the properties were too far and were not suitable for Mr Y, this included Houses of Multiple Occupation (HMO). Some of the alternative care providers also declined Mr Y placements.
25. The Council notified Company A about its efforts in securing an alternative placement for Mr Y and in view of this, it asked Company A to extend Mr Y’s eviction notice. Company A extended Mr Y’s notice period on more than one occasion. The notice period was extended until 25 August 2022 to support Mr Y with securing an alternative placement.
26. Ms X told the Council she would prefer the alternative placement to be in an area close to the family so they could regularly visit, and support Mr Y. Between July and August 2022, the Council continued to look for alternative placements for Mr Y within Ms X’s preferred area via its brokerage team.
27. Ms X told the Council she had found an alternative placement she would like Mr Y to move into and that Mr Y’s sister would support him. Ms X asked the Council to contact the place. The Council contacted Ms X’s preferred placement but decided the place was not suitable and would not meet Mr Y's needs. This was because it was an independent living property.
28. Ms X expressed her frustrations that no alternative placement had been secured for Mr Y. The Council advised focus should be put on its remaining list of care providers to prevent Mr Y from becoming homeless. Ms X said if the Council was unable to secure an alternative placement for Mr Y by the eviction date, she would have Mr Y at her property as a temporary measure. The Council contacted some care providers and arranged some assessments for Mr Y.
29. In August 2022, while Mr Y’s SW was on leave, Ms X informed the Council she spoke with another care provider that was willing to offer Mr Y a placement. The Council liaised with the care provider, and it was agreed Mr Y would move to the alternative placement before the eviction date. But due to CQC concerns about the alternative care provider, the Council decided not to proceed with the planned placement for Mr Y. The Council notified Ms X about its decision two days before the planned move. It apologised to Ms X and explained the care provider failed to disclose there were ongoing concerns about it.
30. Few days before the expiration of Mr Y’s eviction notice, the Council identified additional alternative placements. One had availability but the earliest it could conduct a risk assessment for Mr Y was on 29 August 2022. Ms X visited the care provider, but she did not accept the offer due to her concerns about the cleanliness of the placement and the contradictory information the care provider gave her about its services. Ms X reiterated she was willing to have Mr Y at her property on a temporary basis. The Council offered Ms X a short-term home support package pending when it would secure a suitable alternative placement for Mr Y. Ms X declined the support package and said she and her family would manage Mr Y’s care needs while he stayed at her property.
31. On 24 August 2022, Mr Y moved out of Company A’s supported living accommodation. He moved into Ms X’s property for a period of three weeks. This was because no suitable alternative placement had been secured for Mr Y.
32. Ms X asked the Council for some support with Mr Y’s medication a couple of times a week while he was at her property. The Council made a referral to its Occupational Therapy (OT) Learning Disability Enablement Team. This was to assess Mr Y for any potential temporary support it could provide to him while he was at Ms X’s property in addition to his agreed care package. Due to long waiting times, the team said it would be unable to assess Mr Y until end of September 2022.
33. At the end of August 2022, Ms X told the Council she had visited another care provider that had availability for supported living. She asked the Council to contact the provider. The Council contacted and confirmed the care provider had an availability and agreed to accept Mr Y at the placement. The care provider was not on the Council’s framework, but the Council submitted the application and stated it would chase the matter with its brokerage team.
34. By mid-September 2022, Mr Y moved into an independent living accommodation which Ms X secured for him. The alternative placement was not secured through or supported by the Council.
35. At the end of September 2022, the Council contacted Ms X to arrange an enablement assessment for Mr Y. She advised the Council she had secured an alternative accommodation for Mr Y in another town and that he would be supported by the family. Ms X said Mr Y was settled and more independent at the new accommodation. Ms X said the family did not require the Council’s involvement any longer. It advised Ms X to contact the Council in the new area Mr Y moved to should he need any support in the future. The Council closed Mr Y’s case.
36. Ms X made a formal complaint to the Council. She complained the SW failed to properly conduct Mr Y’s initial MCA which found he had full capacity to manage his finances. Ms X complained the SW took no action to look for and secure alternative placement for Mr Y during the initial four-week eviction notice period. Ms X said she was left to contact and visit the identified placements which was the Council’s responsibility. She said the properties identified via the Council’s brokerage team, for instance HMOs, were not suitable for Mr Y due to his health conditions.
37. In its stages 1 and 2 responses to Ms X’s complaint, the Council confirmed:

• its records showed the MCA it conducted for Mr Y found he lacked the mental capacity to make financial decisions. The Council said it was unclear whether there was some miscommunication about the second MCA outcome
• in relation to Ms X’s complaint about the SW’s failure to take any action to support Mr Y during the initial four-week eviction notice, the Council apologised for any delays while the SW was on leave. It said the Council provided support to Ms X and Mr Y while the SW was absent from work
• it followed the correct process, explored all options and identified a range of care providers via its brokerage team. It confirmed offers from supported living providers included HMOs and that any placement was subject to completing assessments, viewing and agreement by interested people before the service user moves. The Council said when Ms X felt some offers may not be suitable for Mr Y, it continued to look for alternative placement for him until the family chose to place Mr Y in an independent living accommodation
• when alternative care providers are identified via its brokerage team, service users and people supporting them are encouraged to contact the providers, arrange viewings and suitable dates for assessments to be completed. It said the reason was to ensure the family’s full involvement in the process. The Council apologised if there was a difference in expectations which had not been explained to Ms X.

38. Ms X was dissatisfied with the Council’s responses. She made a complaint to the Ombudsman.

Analysis

39. When Mr Y’s capacity was in doubt, in relation to how he managed his finances, the Council conducted two MCAs to establish his capacity. While both MCA outcomes were different, there was no evidence to show the Council did not properly conduct both MCAs for Mr Y.
40. In particular, Ms X complained about and disagreed with the first MCA outcome which found Mr Y had full mental capacity to manage his finances. The SW who conducted the first MCA acknowledged Mr Y had made some unwise decisions when he evaded the measures which had been put in place by Company A and Ms X to support him with managing his finances. The SW established that Mr Y understood the importance and consequences of money management but may require additional support to reduce any potential risks. This was not fault. The MCA outcome was a decision the Council is entitled to make based on its professional assessment. The Ombudsman cannot question the merits of the Council’s decision where there is no evidence of procedural fault. The test for lack of capacity is high and a person is not to be treated as unable to make a decision simply because he makes an unwise decision in line with the Mental Capacity Act provisions.
41. When Ms X disagreed with the initial MCA outcome, the Council conducted a further capacity assessment for Mr Y. The Council came to a different view with the second MCA where it found Mr Y lacked the capacity to manage his finances. This was a differing professional judgement and again, it was a decision the Council is entitled to make. This was not fault.
42. However, it appeared Ms X was unaware and not notified about the second MCA outcome until she received the Council’s response to her complaint. This was fault. This caused confusion and uncertainty to Ms X about Mr Y’s capacity in relation to managing his finances.
43. As regards Ms X’s complaint about how the Council dealt with looking for and securing an alternative placement for Mr Y, there were some faults by the Council.
44. When Company A served Mr Y with a four-week eviction notice, the first significant action the Council took to look for alternative placement for Mr Y appeared to be in early July 2022. This was eight days before the initial expiration of the eviction notice scheduled for mid-July 2022. It was approximately a three‑week delay before the Council started looking for alternative placements for Mr Y via its brokerage team. This was fault. This caused distress, worry and frustration to Ms X.
45. Councils must demonstrate and satisfy themselves that alternative placements are suitable to meet the service users’ needs. This includes visiting and assessing the suitability of such properties. I find no evidence to show the Council carried out any viewings of the alternative placements it identified through its brokerage team to satisfy itself they were suitable to meet Mr Y’s needs. For instance, there was no evidence to show how and why the Council thought the HMOs would have met Mr Y’s identified needs. This was fault. I note the Council stated in its response to Ms X’s complaint that it encourages service users and people supporting them to contact identified providers, arrange viewings and suitable dates for assessments to be completed. Families and the service user should be involved in selecting the placement and it is usual for families to visit the placement to see if they like it. So, although Ms X would have had to visit the placements, the Council is responsible in finding and commissioning a placement to meet Mr Y’s needs. It cannot absolve itself from that duty. Ms X was left to visit the properties, sometimes with Mr Y, which caused them inconvenience and time and trouble.
46. I do not find fault by the Council when it rejected Ms X’s request to place Mr Y in the initial independent living accommodation she found for Mr Y. Also, I find no fault with the Council’s decision not to proceed with a planned placement in another property due to CQC concerns about the care provider. These were decisions the Council is entitled to make. Although, the decisions may have been frustrating for Ms X, but I consider the Council’s decisions were made to safeguard and ensure the properties were suitable for Mr Y.
47. At the end of August 2022, Ms X informed the Council about an alternative supported living placement which had availability. After the Council contacted and confirmed the care provider agreed to accept Mr Y at the placement, it noted the care provider was not on its framework. Given the Council was struggling to find a suitable alternative placement for Mr Y, the Council should have considered commissioning a place outside of its framework to increase its chances of finding a suitable placement. There was no evidence to show the Council did this or followed the matter up after it submitted an application through its brokerage team. Also, the Council did not provide any update to Ms X about the matter. This was fault. This caused uncertainty to Ms X, not knowing if Mr Y would have secured the supported living placement.
48. But I note the Council liaised with and requested Company A to extend Mr Y’s eviction notice on several occasions. This was to prevent Mr Y from being homeless pending when it secured a suitable alternative placement for him. The Council also offered a home package support for Mr Y, but this was declined by Ms X. Mr Y continued to receive care and support by Company A during the eviction notice and by Ms X when he temporarily moved in with her. I consider all these mitigated the injustice caused to Mr Y and Ms X by the Council’s failings as identified above.

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Agreed action

49. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following within one month of the final decision:

• apologise in writing to Mr Y and Ms X in recognition of the injustice caused by the identified failings above. The apology should be in accordance with our new guidance, Making an effective apology
• pay Mr Y £100 to acknowledge the distress and inconvenience caused to him by the Council’s delay in identifying and securing suitable alternative placement for him
• pay Ms X a symbolic payment of £300 to acknowledge the distress, frustration uncertainty and time and trouble caused to her by the Council’s failings
• by training or other means remind staff of the importance of searching and securing alternative placements for service users in a timely manner
• review the communication strategies between the Council and its service users and people supporting them. This is to ensure the Council communicates information such as mental capacity assessment outcomes to people in a clear and effective manner.

50. Within two months of the final decision:

• review and make the Council’s processes and practices for securing alternative placements for service users clearer. This is to prevent any ambiguity and to manage service users’ expectations about the Council’s duties in securing the placements
• review the Council’s procedures to ensure it satisfies itself that identified alternative placements are suitable to meet the service users’ needs
• explain to the Ombudsman how it has improved its practices for securing alternative placements for service users.

51. Explain to the Ombudsman how the Council will monitor its performance against timescales.
52. The Council should provide us with evidence it has complied with the above actions.

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Final decision

53. I find evidence of fault by the Council leading to injustice. The Council has agreed to take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman