Summary: Ms X complained on behalf of her son, Mr Y. She complained about the supported living placement, commissioned by the Council. Ms X complained about the lack of activities, lack of support with food preparation, laundry issues, stopping support services and delaying arranging benefits. She also complained she was banned from having contact with Mr Y. Ms X said Mr Y did not get the support he needed, and she put in time to ensure he got support. There was fault in the way the Council did not consider Mr Y’s financial arrangements and delayed completing its complaint response. Ms X was put to time and trouble to complain. The Council should apologise, make a financial payment, remind its staff of the importance of effective complaint handling and complete a capacity assessment and best interests decision about Mr Y’s finances.

The complaint

1. Ms X complained on behalf of her son, Mr Y. She complained about the supported living placement, commissioned by the Council. Ms X complained about the lack of activities, lack of support with food preparation, laundry issues, stopping support services and delaying arranging benefits. She also complained she was banned from having contact with Mr Y. Ms X said Mr Y did not get the support he needed, and she put in time to ensure he got support.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
3. 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)
4. 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

5. I read Ms X’s complaint and spoke to her representative, Mr Z, about it on the phone.
6. I considered information provided by Ms X, Mr Z and the Council.
7. 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

Background information

8. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
9. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
10. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
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. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

13. 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.
14. 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:
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.
16. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.
17. The Deprivation of Liberty 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. 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. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.
18. The Council complaint policy states the Council should respond to a complaint within 20 working days.

What happened

19. This is a summary of events, outlining key facts and does not cover everything that has occurred in this case.
20. Mr X suffered a head injury in January 2023, resulting in him being admitted to hospital.
21. The NHS assessed Mr Y’s capacity in February 2023. This was relating to where Mr Y lived and his care and support needs. The assessment found Mr Y did not have capacity.
22. In March 2023, the Council referred Mr Y to the court of protection for DOLS. This was because it was not safe for him to leave the hospital alone and about medication.
23. The NHS withdrew the DOLS referral in April 2023. The NHS discharge summary stated Mr Y could independently complete tasks but would need some prompts.
24. The care provider completed an initial support plan in May 2023. The support plan confirmed staff would prompt Mr Y to complete personal care tasks, cooking tasks, cleaning tasks and engage with activities.
25. Mr Y moved into a supported living placement, in a different Council area, at the end of May 2023.
26. The Council completed an updated capacity assessment in June 2023. This assessment decided Mr Y had capacity to make decisions about where he lived. The care providers notes evidenced staff prompted Mr Y to complete personal care tasks, cleaning tasks, cooking and meal preparation and encouraged him to engage in activities. Mr Y engaged with some requests but chose not to at times.
27. In September 2023, the Council recorded Mr Y had capacity regarding his care and support. The care provider then issued Mr Y with a placement termination letter. The care provider cited Ms X’s engagement as a reason for this letter. It also stated Mr Y had not paid any bills, leaving him in debt to the care provider.
28. The Council spoke to the care provider to try to maintain the placement. The Council noted Mr Y wanted to remain at the placement.
29. Mr Z complained to the Council on Ms X’s behalf in November 2023. She complained about the care providers support for Mr Y, issues with benefits and banning her from seeing Mr Y.
30. Ms X was unhappy with the way the Council managed Mr Y’s case and raised a safeguarding enquiry with the Council where Mr Y was placed. The other Council completed its safeguarding report in December 2023. The report stated the care provider was meeting Mr Y’s needs and recommended no further action.
31. The Council responded to the complaint in January 2024. It stated Mr Y reported he liked the placement. He stated he enjoyed the activities. The response stated staff were supporting Mr Y. The Council confirmed the care provider could stop Ms X entering the building at its discretion. The care provider identified concerns and decided to stop Ms X entering the building. The response also confirmed Ms X would need to contact the benefits office as she was managing Mr Y’s finances.
32. Ms X was not satisfied with the Council’s response and has asked the Ombudsman to investigate. Ms X would like the Council to apologise, make sure support is in place and make an appropriate financial payment.
33. In response to my enquiries the Council stated Mr Y had capacity and chose either to engage or not. The Council provided a month’s case notes from the care provider to evidence it was prompting Mr Y to complete the tasks as set out in the support plan.

My findings

Care and support

34. It is clear that Mr Y’s circumstances are complicated by disagreements between Ms X and the care provider. The Council noted the relationship had broken down, impacting Mr Y’s placement.
35. The Ombudsman conducts proportionate investigations. I considered a month’s case notes from the care provider. Throughout the case notes it states staff were prompting Mr Y to engage in activities. Staff also prompted Mr Y to complete personal care and household tasks or noted he completed them. This is what the support plan says staff must do. The Council was not at fault.
36. The NHS determined Mr Y did not have capacity regarding care and support in February 2023, during his stay in hospital. This is a decision specific decision and limited to his time in hospital. The Council determined, when living in the community, he had capacity to manage his care and support needs.
37. However, given the February 2023 capacity assessment stated Mr Y did not have capacity, the Council should evidence it considered Mr Y’s capacity to manage his care and support needs when he moved into the placement in May 2023. The Council completed a capacity assessment about residency in June 2023, but this does not include care and support. The Council only noted Mr Y had capacity about his care and support in September 2023. There is no evidence to confirm if Mr Y had capacity from when he moved in, May 2023, until September 2023. The Council should have evidenced it considered Mr Y’s capacity to make decisions about his care and support following his move into the placement. Not to evidence it considered Mr Y’s capacity this is fault.
38. When the Ombudsman finds fault, we must consider if this fault caused an injustice. The support plan is clear staff are to prompt Mr Y to complete tasks and engage in activities. The care provider prompted Mr Y to complete tasks, and he had opportunity to engage in activities, in line with his support plan. Mr Y could choose to engage with activities or not. I cannot confirm Ms X or Mr Y suffered any significant personal injustice from this fault.
39. The care provider raised concerns about its engagement with Ms X. It decided, due to its concerns, to prevent her from accessing the building. The care provider did not ban contact with Mr Y. The care provider can limit access to its building if it has concerns. This is a decision the care provider can take. The Council was not at fault.

Finances

40. Ms X manages Mr Y’s finances. The Council has provided no legal basis for this agreement but confirmed issues with Mr Y’s finances. The Council confirmed it did not consider this or complete a mental capacity assessment about finances. The Council was aware Mr Y was not paying his financial contributions for his living arrangements. This warranted further consideration by the Council, as it put his tenancy at risk. The Council has not considered its responsibilities to ensure Mr Y was safeguarded. This is fault. Mr Y has a debt with the care agency because he was not paying his contributions, and this was a contributing factor in his eviction notice.
41. The Council recorded Ms X was withholding Mr Y’s finances as he refused to leave the placement. I note Ms X denied the Council allegations. The Council recorded the care provider was buying Mr Y food. The Council has not shown it considered if this warranted safeguarding consideration. The Council has not acted to safeguard Mr Y. This is fault.

Complaint handling

42. The Council complaint policy states it should respond within 20 working days. It took the Council 69 days to respond. This is fault and Ms X was put to time and trouble to complain.

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Agreed action

43. To remedy the outstanding injustice caused to Ms X and Mr Y by the fault I have identified, the Council has agreed to take the following action within 4 weeks of my final decision:
• Apologise to Ms X for not completing the complaint process within the time allowed in its policy. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Apologise to Mr Y for not considering the suitability of his financial arrangements. This apology should be in accordance with the Ombudsman’s new guidance Making an effective apology.
• Pay Ms X £100 as an acknowledgement of the time and trouble she has spent pursuing this complaint.
• Remind relevant staff of the importance of effective complaint handling.
• Remind relevant staff of the Councils duties in safeguarding adults.
• Complete a financial mental capacity assessment and best interest decision for Mr Y. This is to ensure decisions are made correctly and in Mr Y’s best interests.
44. The Council should provide evidence of the actions taken to satisfy the recommendations.

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Final decision

45. I have completed my investigation. I have found fault by the Council, which caused injustice to Ms X and Mr Y.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman