Summary: We found fault in the Council’s failure to apply to the Court of Protection about care arrangements for the complainant’s (Mr X) son (Mr Z). The Council’s fault caused injustice to Mr Z and Mr X. We did not find fault in the Council’s visiting arrangements. We will not investigate whether the Supported Living placement was suitable for Mr Z and Mr X’s complaint about the Supported Living placement manager. The Council agreed to apologise, to apply to the Court of Protection and to make a symbolic payment for Mr X’s distress. The Council also agreed to remind social workers of their duties for people who lack mental capacity and are placed in the supported living settings.

The complaint

1. Mr X complains the Council:
• has unlawfully deprived Mr Z of his liberty;
• has placed Mr Z in an unsuitable placement;
• has allowed Mr Z to socialise with unsuitable people;
2. Mr X also complains about the manager of the supported living placement (the Supported Living placement) where Mr X has been residing.
3. Mr X says the Council’s failings caused him significant distress and worry about Mr Z’s well-being.

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The Ombudsman’s role and powers

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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. In determining whether to initiate, continue or discontinue an investigation we act in accordance with our own discretion, subject to the provisions of sections 24A, 26 and 26D of the Local Government Act 1974. (Local Government Act 1974, section 24A(6), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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, sections 24A(1)(A) and 25(7), as amended).
8. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
9. We cannot find that an organisation has breached the Human Rights Act. However, we can find an organisation at fault for failing to take account of its duties under the Human Rights Act.  
10. 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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What I have and have not investigated

11. I have not investigated any actions which happened more than 12 months before Mr X came to us. As explained in paragraph six of this decision to investigate earlier events we would need to have good reasons to do so. After the Council’s response to his complaint in November 2023, Mr X brought his complaint to us five months later. I cannot see any good reasons why Mr X could not have come to us sooner if he wanted to complain about the Council’s earlier actions.
12. I have not investigated Mr X’s complaint about the manager of the Supported Living placement. Although we can investigate actions of organisations or private companies which provide services on behalf of a council, our role is to look into the organisation’s actions as a corporate body, rather than to investigate an individual.
13. I have not investigated whether the Supported Living placement was suitable for Mr Z. The Council told me it is in the process of applying to the Court of Protection to decide on the care arrangements for Mr Z, therefore I will not investigate these matters.

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How I considered this complaint

14. I spoke with Mr X and considered the information he provided.
15. I made enquiries with the Council and considered the information it provided.
16. Mr 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

Legal and administrative background

Community deprivation of liberty

17. The Supreme Court defined deprivation of liberty as when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”. (P(by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and P and Q (by their litigation friend the Official Solicitor) v Surrey County Council)
18. The Supreme Court held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This includes placements in the supported living.
19. The deprivation of liberty safeguards (DoLS) only currently apply to hospitals and care homes and therefore a deprivation of liberty in a community setting must be authorised by the Court of Protection. A deprivation of liberty can occur in community and domestic settings where the State is responsible for imposing such arrangements.
20. Factors which are not relevant to determining whether there is a deprivation of liberty include the person’s compliance or lack of objection to the proposed care/ treatment and the reason or purpose behind a particular placement.
21. An application to the Court of Protection should be made before deprivation of liberty begins. A Court of Protection order will then itself provide a legal basis for the deprivation of liberty. (Deprivation of liberty safeguards code of practice, paragraph 10.12)
22. A person whose deprivation of liberty the council applies for to the Court of Protection, should have a representative in these court proceedings. This representative is called a “rule 1.2 representative”. (The Court of Protection Rules 2017 rule 1.2(2))

Human Rights

23. The Human Rights Act 1998 (HRA 1998) sets out the fundamental rights and freedoms that people can expect.
24. Article 8 of the HRA 1998 says everyone has the right to respect for their private and family life, their home and their correspondence. Public authorities may be obliged to actively protect rights under this article and may interfere with these rights to protect the rights of other people or the public interest. The public authority must interfere with the right as little as possible.

What happened

Background

25. Mr Z is autistic and mostly non-verbal. After the death of his mother, who was his main carer, he was cared for by his maternal family and Mr X. He was then accommodated in a respite setting.
26. Following breakdown of the respite placement, the Council prepared Mr Z’s care and support plan. The Council identified the Supported Living placement for Mr Z. Mr Z moved there at the end of July 2022.
27. In September 2022 the Supported Living placement carried out a risk assessment for Mr Z regarding visits from his family and friends.
28. In October 2022 the Council reviewed Mr Z’s care and support plan. It noted Mr Z had settled well but Mr X had been concerned about Mr Z’s challenging behaviours. Mr X would continue to support Mr Z in managing his finances and when attending medical appointments.

Mr Z’s care arrangements

29. In 2023 the Supported Living placement regularly reviewed Mr Z’s risk assessment for visits from the family and friends. Due to the risk of Mr Z’s challenging behaviour when out in the community, a member of staff would always accompany Mr Z and the member of the family or friends. Mr X was the only member of the family who declined any offers of assistance. A member of staff was present during any visits for Mr Z in the Supported Living placement.
30. In August 2023 Mr Z’s social worker (the Social Worker) visited Mr X’s flat to establish its suitability if Mr Z were to live with his father. During this visit the Social Worker stated the Council would be applying to the Court of Protection. Mr X agreed to be the rule 1.2 representative for Mr Z.

Complaint and best interest meetings

31. Mr X had various concerns about the Supported Living placement and formally complained to the Council in October 2023. He said:
• Mr Z was deprived of his liberty for 14 months without any safeguards in place. Mr X objected to the care arrangements in place for Mr Z;
• the Supported Living placement was not suitable for Mr Z because of its technical state and medical conditions of other tenants;
• the Support Living placement did not apply specific dietary requirements necessary in view of the impact of Mr Z’s medication on his weight;
• the Support Living placement manager failed to involve him in taking decisions about Mr Z and acted to reduce contact between Mr X and his son;
• he was not happy with the frequency and length of visits from the maternal family’s friend (Mr A). Mr X raised safeguarding concerns;
• the Supported Living placement mishandled the recent incident during which Mr Z was physically restrained and subsequently hospitalised.
32. As part of his complaint Mr X asked the Council to complete a number of actions including:
• progressing with DoLS application;
• identifying a new placement for Mr Z;
• considering an option of Mr Z living with him;
• registering him as a primary contact;
• confirmation Mr A had an enhanced Disclosure and Barring Service (DBS) check.
33. In mid-October 2023 the Council held a best interest meeting for Mr Z, during which Mr X repeated he wanted Mr Z to live with him. He explained his understanding that the Supported Living placement was meant to be a temporary arrangement. There were discussions on the possible confusion for Mr Z if the individuals involved in his life could not agree on his care arrangements.
34. The Council responded to Mr X’s complaint in the second week of November 2023. It accepted its delays in applying for the Court of Protection order, but these were partly caused, it said, by Mr X’s lack of agreement with Mr Z’s care and support plan. The Council did not uphold Mr X’s concerns about Mr Z’s food arrangements, impact of other tenants on him and concerns about the Supported Living placement manger. The Council explained that DBS was not usually required for family members of friends visiting residents in the supported living placements. The Council outlined some visiting rules followed by the Supported Living placement and confirmed that the best interest decisions were made for Mr Z in this respect.
35. The next best interest meeting took place in the second part of November 2023. The participants discussed reduction in Mr Z’s challenging behaviours possibly caused by the change in medication. Mr X expressed his concerns about the impact of the medication on Mr Z’s weight gain.

Court of Protection application

36. In April 2024 Mr X asked the Council for an update on its application to the Court of Protection. The Council said the application was progressing and should be sent to the Council’s legal department within two weeks. The Council decided to appoint maternal family’s friend as Mr Z’s rule 1.2 representative.
37. In its response to the Councillor in May 2024 the Council reiterated the court application had been progressing. It said it had reviewed Mr Z’s care arrangements at the best interest meeting in November 2023. The conclusion was that Mr X did not have suitable accommodation for Mr Z to live with him. It was agreed Mr Z would remain in the Supported Living placement for another year when these arrangements would be reviewed.
38. At the beginning of June 2024 the Council carried out the review of Mr Z’s care and support plan.
39. Responding to my enquiries the Council said that after some amendments the Court of Protection documentation would be submitted to the legal team by mid-September 2024.

Analysis

Deprivation of liberty

40. All the evidence I have seen suggests Mr Z lacked mental capacity to make decisions about his care arrangements. Placing Mr Z in a supported living setting involved depriving him of his liberty and as such should have triggered an application to the Court of Protection.
41. In its response to Mr X’s complaint the Council tried to explain its delays in submitting a court application by the rule 1.2 representative’s disagreement with Mr Z’s care and support plan. I do not consider this was a valid reason for the delays. Despite the disagreement, the Council could have still proceeded with the application, leaving it for the Court of Protection to decide which care arrangements were in Mr Z’s best interest. Alternatively the Council could have secured an alternative rule 1.2 representative, as it did in April 2024.
42. In view of Mr X’s concerns about suitability of the Supported Living placement for Mr Z, the Council should have prioritised applying to the Court of Protection to resolve all the issues which Mr X had consistently been raising. The Council’s failure to do so is fault.
43. We cannot say, even on the balance of probabilities, what the Court of Protection would have decided if the Council had applied in a timely manner. The Court’s decisions are time-specific and may vary depending on when the application is considered. The Council’s fault caused injustice to Mr X by creating uncertainty of what the Court’s decision could have been.
44. Mr X’s correspondence with the Council shows his significant distress about the care arrangements for Mr Z. The delay in resolving the issues in dispute between Mr X and the maternal family and friends as well as with the professionals increased his distress.
45. By not applying to the Court of Protection at least immediately after Mr X expressed his concerns about Mr Z’s care arrangements, the Council failed to consider the impact of this decision on Mr Z’s right to private and family life. For people who lack mental capacity to decide on their independent living arrangements, the Court of Protection application is a control mechanism to ensure the proposed care arrangements are in their best interest.
46. The Council failed to consider the impact of its decision on Mr X’s right to care for his son. Mr X consistently told the Council he wanted Mr Z to live with him. Although the Council considered this option, it decided Mr X’s accommodation is not suitable. Mr X had the right to have this decision reviewed by the Court of Protection. We have seen no evidence the Council considered whether the delay in progressing a court application would result in the interference with Mr X’s right to private and family life and if so, whether the circumstances of the case justified it.

Suitability of the Supported Living placement

47. The Council told us it was completing its application to the Court of Protection. This is the right process for finding the best care arrangements for Mr Z in view of the disagreement between various family members, friends and professionals. As part of the process, the Court will decide on the suitability of the Supported Living placement.

Visitors

48. I did not find the Supported Living placement, acting on behalf of the Council failed by not requesting DBS from Mr A. Having reviewed the placement’s visitors’ rules and correspondence with the Council it is clear the Supported Living placement applies measures to keep its residents safe whilst giving them independence and respecting their feelings. This is what we would expect.

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Agreed action

49. To remedy the injustice caused by the faults identified, we recommend the Council complete within four weeks of the final decision the following:
• apologise to Mr X for the injustice caused to him by the faults identified. We have published guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended;
• file with the Court of Protection an application about Mr Z’s care arrangements;
• pay Mr X £100 to recognise his distress caused by the Council’s failings;

The Council will provide the evidence it has completed the above actions.

50. We also recommend the Council within three months of the final decision remind social workers and their managers of the Council’s duties for people who are placed in the community settings and who lack mental capacity to make decisions about their care arrangements.

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Final decision

51. I uphold part of this complaint. I found fault in the Council’s failure to apply to the Court of Protection about the care arrangements for Mr Z, who was placed in the Supported Living placement. For the reasons explained in the Analysis section this fault caused injustice to Mr Z and Mr X. I also found the Council failed to have regard to Mr Z’s and Mr X’s right to private and family life. I will not investigate Mr X’s complaint about the suitability of the Supported Living placement for Mr Z and the Supported Living placement’s manager. I do not uphold other issues of Mr X’s complaint. The Council has accepted my recommendations, so this investigation is at an end.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman