Summary: There was fault as there was a delay in the Council providing Ms C’s parents with Ms C’s care plan to address the risks/need that it had identified and a delay in providing the mental capacity assessment. The documents were also not fully completed and not always clear. The Council has agreed to apologise, to carry out a review assessment and provide an updated care plan and to pay £300.

The complaint

1. Mr and Mrs B complain on behalf of their adult daughter, Ms C. They say the Council failed to properly assess Ms C’s needs, her mental capacity to make certain decisions and there were delays in the assessments and the sharing of information. They disagree with the care plan and the outcome of the mental capacity assessment.

What I have investigated

2. I have investigated the complaints which have gone through the complaints process which ended in September 2020.

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The Ombudsman’s role and powers

3. 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)
4. 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)

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How I considered this complaint

5. I have discussed the complaint with Ms C’s representative. I have read the information that she and the Council have sent , the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

Care Act 2014

6. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) set out the Council’s duties towards adults who require care and support. The Council also has its own policies.

Needs assessment

7. 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 care plan which outlines what services are required to meet the needs and a personal budget which sets out the costs to meet the needs.

Personal budgets

8. The Guidance says the personal budget must be sufficient to meet the person’s needs which the local authority is required to meet and must also take into account the reasonable preferences to meet needs as detailed in the care and support plan. It says decisions should be based on outcomes and value for money, rather than purely financially motivated.

Agreement of the care plan

9. The local authority must take all reasonable steps to reach agreement with the person for whom the plan is being prepared.  The plan should be completed in a timely fashion, proportionate to the needs to be met.
10. If the plan cannot be agreed with the person, the local authority should state the reasons for this and the steps which must be taken to ensure that the plan is signed-off. If a dispute still remains, and the local authority feels that it has taken all reasonable steps to address the situation, it should direct the person to the local complaints procedure.

Mental Capacity Act 2005

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.
12. 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.
13. Another principle is that:
• ‘Before the act is done, or the decision is made, regards must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action’.

Deprivation of liberty

14. There is no statutory definition of deprivation of liberty, so it is necessary to consider the ‘degree and intensity’ of the arrangements in place, consider all factors and look to case law.
15. The court found that the ‘acid test’ was whether someone who lacked capacity to consent to the arrangements was ‘under continuous supervision and control and was not free to leave’.
16. Community care arrangements can amount to a deprivation of liberty and, if they do, would require authorisation by the Court of Protection.

What happened

17. Ms C is an adult woman who lives in a rented house. She has mental health issues and a learning disability and receives a package of support from the Council.
18. Ms C received 39 hours of one-to-one support a week provided by a care worker employed by a care agency. The care workers assisted Ms C in daily living tasks and in accessing the community. In 2018, the care agency asked the Council to increase the support. Ms C was prone to falls which were causing injuries and there was a concern that Ms C was getting up during the night to go to the local shop.

Review assessment – May 2018

19. The social worker carried out a review of Ms C’s needs and care plan (started in January 2018 and completed in May 2018). He considered all her eligible needs and outcomes and Ms C’s wishes. The social worker said Ms C was at risk of falls and said that a higher level of support and flexible planning around support hours in the community had a positive effect on reducing the number of falls. The Council agreed to a temporary increase of the support to 45 hours per week. The care plan was reviewed in August 2018 where it was agreed to continue with the 45 hours support package.

Referral – September 2018

20. The Council received a referral from the agency’s manager in September 2018. The manager said Ms C continued to have frequent falls resulting in injuries such as a broken nose. She had met with the parents and had agreed a different support package with 15 hours support a day, with the extra support paid by the parents. The manager verbally told the Council that Ms C now needed support 24 hours a day for 7 days a week.
21. The social worker spoke to Mrs B in November 2018 and proposed an electronic activity monitoring system to establish what Ms C’s needs were. In the response to the draft decision, Mrs B said that she asked for more information about the monitoring system at this time.
22. In December 2018, the Council agreed to carry out a risk assessment and a mental capacity assessment of Ms C.

Mental capacity assessment – February 2019

23. The social worker met Ms C on 30 January 2019 and 1 February 2019 to assess her mental capacity.

Risk assessment – February 2019

24. The social worker said there was a risk of falls, both in the home and outside, putting Ms C at high risk of injury. The risk was worse when she went into the community at night because, if she had a fall during the night, there was a risk that nobody would be around if she needed medical help. Increased support and structured activities could reduce the risk.
25. Ms C was also at risk of exploitation when she went into the community without support, especially at night. He said the waking support encouraged Ms C to stay at home which reduced the risk, although the support workers could not prevent Ms C from leaving the property. Other protective factors were the key-safe if Ms C left home without the keys, the agency’s on-call system which Ms C used on many occasions and the fact that there was an on-call house where Ms C could go which was staffed 24/7.
26. The social worker left the second part of the risk assessment blank. This included the risk management plan and the views of other interested parties. The social worker sent the risk assessment to Ms C’s parents and the agency’s manager on 19 March 2019. He received comments from Mrs B and sent an email to the agency’s manager on 3 April 2019 to say he had not received her comments.
27. The case documents show that the Council’s position was that there was insufficient evidence for a need for night-time one-to-one support by a care worker. The Council’s view was that additional support was restrictive and was similar to 24/7 residential care which Ms C did not need. The Council expected less restrictive measures such as assistive technologies to be tested first as they could meet the needs.
28. The family did not agree and continued to ask for additional one-one-one support by a care worker. Mr and Mrs B said, in the reply to the draft decision, that they did not agree as they did not have the complete information.

Meeting – June 2019

29. The social worker held a meeting with Ms C’s parents on 25 June 2019.
30. Ms C’s parents had collated evidence of falls, sleep patterns, sleep record and a letter from Ms C’s doctor. The social worker uploaded the information.
31. All parties were in agreement with the mental capacity assessment. The social worker explained that, as Ms C lacked the mental capacity to make decisions about her care and accommodation, decisions had to be made in Ms C’s best interests. The parents said nobody held a lasting power of attorney for Ms C.
32. In their response to the draft decision, Mr and Mrs B said they disputed the records of the meeting as they did not agree with the mental capacity assessment at the meeting.
33. The social worker discussed voice operated alarms and ‘Just Checking’ equipment. Mrs B said this would not work and the social worker asked why. Mrs B said: ‘Because I know [Ms C] and she would still go out.’
34. The parents disagreed that the night support was a more restrictive option and said that residential care was more restrictive.
35. The proposed plan was that the social worker and his manager would:
• Review the information provided by Mrs B.
• Meet with the service manager to discuss the options.

Complex case discussions – June and July 2019

36. The Council held two complex case discussions following the meeting with Ms C’s parents. The Council said a best interest meeting would have to be organised to make decisions.
37. The outcomes included:
• A best interest meeting would be held and a Care Act advocate to be appointed for Ms C.
• The social worker would explore Telecare which incorporated a falls sensor and a GPS tracker.
• Alternative accommodation options would be explored such as Shared Living/Extra Care housing/Pathway flat.
38. Note: I asked the Council to further explain what a Pathway flat (extra care housing) would provide. The Council said these were self-contained flats which had 24/7 staff on the premises so it would mean that a staff member could attend much quicker if Ms C had a fall or if she was planning to go out during the night. The Council said there were extra care housing specifically aimed at residents with learning difficulties.

Conversation – July 2019

39. The social worker and Mrs B spoke on 19 July 2019 to discuss the way forward.
• Mrs B agreed that a meeting with professionals and appointment of a Care Act would be helpful, but she wanted the Advocate to get to know Ms C first. The social worker said an Independent Mental Capacity Advocate may be helpful as Ms C lacked capacity to make decisions about care and accommodation. Mrs B said she disagreed that Ms C lacked capacity around accommodation and the social worker agreed to send her his mental capacity assessment.
• Respite residential care at a home which specialised in adults with learning difficulties, for the days when Ms C stayed with her parents so that the parents could have a break. Mrs B said she knew this facility would be oversubscribed and was concerned about the impact on Ms C and the change of location.
• A move to a Pathway flat (extra care housing). Mrs B said this would be ‘a total waste of time’ as Ms C was already living independently. She was also concerned about the environment and the location.
40. The social worker referred Ms C to the Learning Disabilities Team’s Behavioural Support Advisors to see if they could support Ms C in changing her night routine. Ms C was allocated an advocate on 23 July 2019.
41. The Council liaised with the other professionals including Ms C’s GP and the Learning Disabilities Team Behavioural Team over the following weeks. The Council’s position remained that Ms C had an eligible need for monitoring, but that there were other ways of meeting that need than providing Ms C with a care worker on a one-to-one basis. The current support package, even with the extra hours paid for by Ms C’s parents, meant that Ms C was still on her own for many hours so the risks remained.
42. The Council’s position was that assistive technology and/or a move to extra care housing would better meet that need.

Mr and Mrs B’s complaint

43. Mr and Mrs B complained to the Council, with the help of an advocate, in November and December 2019. They said:
• They privately funded night care which Ms C needed as Ms C sometimes had falls and she sometimes went out during the night. The Council had initially assessed this as an eligible need, but was refusing to pay the extra support because of the cost.
• They had not received the mental capacity assessment or the needs assessment from March 2019.
• They had not rejected the offer of technology, but had requested further information which the social worker had not provided.
44. In December 2019, the Council provided the mental capacity assessment which it carried out in January/February 2019.

Best interest meeting – December 2019

45. The Council held a best interest meeting to decide the way forward on 13 December 2019. Ms C’s parents, their advocate, Ms C’s advocate, the GP, the agency’s manager and the social work team attended.
46. The parents said they did not agree that Ms C lacked capacity to make decisions relating to her and care support needs. The meeting could therefore not proceed as a best interest meeting, but was continued as a general meeting.
47. The outcome of the meeting was that the Council agreed to obtain an independent mental capacity assessment of Ms C.

Council’s response to the complaint – December 2019

48. The Council responded to Mr and Mrs B’s complaint in December 2019 and said:
• It set out the work it had done since October 2018 in terms of assessing Ms C’s needs, the proposals it had made and its communications with the family (see above).
• It had offered alternative solutions such as respite care and extra care housing/pathway flats which Mrs B had rejected as she said it was in Ms C’s best interests to remain in her current accommodation.
• It had offered alternative technologies.
• Extra hours for supervision/monitoring was not in line with the Mental Capacity’s duty to offer the least restrictive support.
• The Council offered further information on the monitoring technology and asked whether the parents would now agree to the installation of the technology.

Review assessment – January 2020

49. The social worker met with Ms C and obtained her views and the views of her independent advocate. He considered her different eligible needs and outcomes.
50. In terms of the falls, the social worker said the care plan could not reduce the risk of falls, but it could address whether Ms C received medical help after a fall if she needed this. He said overnight support could not prevent Ms C leaving the property but could act as a deterrent to distract her.
51. He said assistive technology would meet Ms C’s need in terms of the falls and going out at night and would be a less restrictive option under the Mental Capacity Act. Additional support by a care worker was not required and was overly restrictive.
52. He recorded Ms C’s parents’ views on the assistive technology. The parents said the sensor / door mat to encourage Ms C not to go out would not work and they questioned who would respond to the alerts if Ms C had a fall.
53. The social worker outlined the three alternatives that had been considered which were overnight support which the ASC team felt was over-restrictive, residential care and extra care housing. He said that, in terms of residential housing, that Ms C would lose her independence and it would be against her views and wishes. In relation to the option of extra care housing, he said the change of area could be detrimental to Ms C.

Mental capacity assessment – February 2020

54. A social worker from the Learning Disability Team carried out a second mental capacity assessment.
55. She met with Ms C and applied the tests set out in the Mental Capacity Act 2005. She used additional resources such as pictures to assist in the decision making. She explained the reasons for her conclusion on each part of the test. She concluded that Ms C lacked the mental capacity around her care and support needs and the risks in the community.
56. A new social worker was allocated to Ms C in March 2020.

Letter - 5 March 2020

57. The parents agreed in a letter dated 5 March 2020 that the adaptive technology could be trialled.
58. An internal Council note dated 15 March 2020 said the parents had now agreed to the technology. This would require high-cost panel authorisation and a best interest decision as Ms C lacked the mental capacity to agree to the installation of the technology.

Complaint –April 2020

59. The parents said:
• There had been delays in the assessments.
• The social worker failed to send them a copy of the mental capacity assessment and the risk assessment dated January/February 2019.
• They disagreed with the first mental capacity assessment but this was not picked up by the Council until the best interest meeting in December 2019 which then further delayed matters.
• They also disagreed with the outcome of the second mental capacity assessment and said this assessment was not independent.
• The telecare equipment had still not been installed.

Council’s reply – June 2020

60. The Council said in response:
• Some of the delay was caused by the fact that they were trying to reach a solution with the family and matters were then further delayed by the fact that Mr and Mrs B challenged the mental capacity assessment which had to be settled before any best interest decisions could be made.
• The high cost panel had agreed the funding for the telecare equipment.
• The installation required a best interest decision on behalf of Ms C in line with the Mental Capacity Act. The Council wanted to know whether the parents agreed that it was in Ms C’s best interest to install the equipment.

Complaint – July 2020

61. The parents repeated some of their previous complaints. They continued to be of the view that Ms C had the capacity to make decisions about her care and support needs and said the second capacity assessment was not independent and had been carried out without the involvement of the family or care workers.

Council’s final complaint reply – September 2020

62. The Council provided its final reply to the complaint in September 2020. In terms of the second capacity assessment, the Council said the assessor was independent as she had not been involved in the case before. The assessor chose to involve Ms C’s advocate and this was considered to be impartial. The Council asked the parents to confirm what their position was regarding the best interest decision for the telecare equipment.

Meeting with the parents – September 2020

63. The new social worker met Ms C’s parents in September 2020. Ms C’s parents said:
• They had been unsure to accept the monitoring equipment as they thought this would mean they agreed Ms C lacked capacity, but they now agreed that Ms C lacked mental capacity to make decisions about going out at night.
• A best interest decision could be made for the installation of the monitoring equipment.
64. The parents say the equipment was installed in January 2021.

Analysis

Mental capacity assessment

65. The social worker visited Ms C on 30 January 2019 and 1 February 2019 to assess her mental capacity.
66. The social worker should have written up the document at the time and should have sent a copy to the parents. The failure to do so was fault.
67. The parents said they disagreed with the assessment in July 2019 and the social worker said he would send them the document. He still failed to do so which was fault. The Council did not provide the actual document until December 2019.
68. The Council also failed to act on the fact (in July 2019) that there was no agreement about Ms C’s mental capacity. The Council should have addressed this at this stage and its failure to do so was fault.
69. These delays have caused an injustice as the underlying dispute about the mental capacity assessment caused a delay in the decision making about the care plan and the agreement to instal the technology (see below).
70. I find no other fault (apart from the fault identified above) relating to the first assessment. The social worker applied the correct tests as set out in the Mental Capacity Act 2005. He set out his reasons why he concluded that, on the balance of probabilities, Ms C lacked capacity.
71. In terms of the second mental capacity assessment, I agree the Council’s communication was confusing as the Council used the word ‘independent’ assessment at the meeting in December 2019. The parents thought this meant the assessor would be independent from the Council whereas the Council meant a person independent from the case. The Council should have been clearer in its communications.
72. However, that does not mean that the assessor was not independent. I note the assessor involved Ms C’s independent advocate. The assessment applied the principles of the Mental Capacity Act correctly. The assessor spent time with Ms C and applied the correct test. They gave detailed and balanced reasons for their decision that Ms C lacked capacity to make decisions about her care and support needs. I cannot question the merit of a decision if there is no fault, overall, in the way the decision was made.

Delay in installing the monitoring technology

73. Ms C say they asked for more information about the technology in 2018, but unfortunately the records are not detailed enough to say.
74. I note the following:
• The parents objected to the use of the technology at the meeting in June 2019.
• The parents wrote to the Council in December 2019 and said they had never objected to the technology but were waiting for the Council to provide further information on the technology.
• The Council provided further information on the technology in its December 2019 response.
• The parents approved the use of the technology in March 2020.
• However, the Council could only install the technology if a best interest decision was made. The parents disagreed with the mental capacity assessment and therefore a best interest decision could not be made.
• The parents agreed that Ms C lacked capacity and the technology could be installed in September 2020.
75. Therefore, during this period, there was no fault in the delay insofar that the Council was waiting for the parents to agree to the installation of the technology and then the mental capacity assessment.
76. However, I have found fault in relation to the delay in providing the mental capacity assessment and in addressing the dispute about the mental capacity. This indirectly caused a delay in the decision making regarding the installation of the technology as the Council could not make best interest decisions until the dispute about the mental capacity was resolved.

Assessment and care plan

77. The Council provided its initial risk assessment in March 2019. The social worker did not complete the following sections in the assessment:
• The views of others involved with Ms C.
• The care plan to address the risk.
78. The Council obtained the parents’ views and discussed the options with the parents in the following months. This process was completed by June 2019. The Council should have completed the full assessment including the care plan at this stage. The failure to do so was fault.
79. I appreciate that the parents disagreed with the care plan. However, that should not stop the Council from writing the plan. The Council did not provide a further review/plan until January 2020 and this was fault.
80. In addition, it was sometimes difficult to ascertain from the documents what the Council’s care plan was and even the document dated September 2020 was not entirely clear. For example, it was not clear what the Council’s position was on extra care housing and whether the views expressed were the Council’s position or the parents’. The notes of the discussions showed that this was the Council’s alternative plan, if the Ms C’s parents were not in agreement with the installation of the technology.
81. In terms of injustice, my view is a clear care plan at an earlier point may have prevented some of the delay. A plan would have made it clearer to the parents what the options were and the reasons for the Council’s proposals.
82. In terms of the assessment process, I note the following positives. The social worker met with Ms C on several occasions to assess her needs, to assess the risk associated with the falls and to obtain her views and wishes. The Council appointed an independent advocate for Ms C and the social worker spoke to the advocate to obtain her views on behalf of Ms C. The social worker had discussions and meetings with Ms C’s parents, the agency’s manager, the GP and other professionals such as the Learning Disability Team Behavioural Team and considered their views and evidence.
83. The Council considered Ms C’s needs and outcomes as set out in the Care Act 2014. The Council also correctly identified that the type of support that Mr and Mrs B were paying for (monitoring/supervision support) was different from the support Ms C had been receiving (support in daily living activities and accessing the community).
84. If Ms C was being frequently monitored when she was in her home or going outside, this decision had to be made in line with the Mental Capacity Act 2005 which said the Council had a duty to try the least restrictive option.
85. In the end, the Council concluded that the need for monitoring/supervision could be better met by monitoring technology and/or by a move to a Pathway/ extra care housing flat.
86. I appreciate that Ms C’s parents and the Council continue to disagree about the care plan and Ms C’s mental capacity. The Ombudsman cannot decide whether Ms C has mental capacity or not, nor can the Ombudsman carry out an assessment of Ms C’s needs or decide her care plan. If there continues to be a disagreement, these matters may be better dealt with by the Court of Protection.

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Agreed action

87. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise to Ms C and her parents for the fault that I have identified.
• Complete the review assessment of Ms C’s needs and her care plan.
• Pay Mr and Mrs B £300 for the distress caused by the delay and lack of clarity in some of the documents.

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Final decision

88. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Parts of the complaint I did not investigate

89. I have not investigated the following complaints as they have not gone through the Council’s complaints procedure yet.
90. Also, it would be impossible to say, if the Ombudsman found fault, what the injustice was and what the remedy should be without knowing what the outcome of the review of the needs assessment and care plan will be.
91. The complaints are:
• The Council delayed installing the assistive technology after September 2020.
• The Council has not activated the ‘Just Checking’ technology which was going to assess Ms C’s needs at night.
• The Council has failed to monitor the two pieces of equipment that were installed in January 2021. The parents say the technology is not working.
• The Council should have carried out a review of Ms C’s needs and her care plan within a few months of the installation of the technology and failed to do so.

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Investigator's decision on behalf of the Ombudsman