Decision : Upheld
Decision date : 14 Jun 2017
The Ombudsman's final decision:
Summary: The Council was at fault for failing to follow Government guidance when assessing the needs of the complainant’s brother, who is deafblind. There were also faults in communications surrounding a best interest decision which considered his care setting. The Council also failed to take an active involvement when a care provider it commissioned limited the complainant’s contacts. There was also some delay in arranging alternative care provision for the complainant and in agreeing funding for his care. The Council recognises these findings and has agreed to provide a remedy for the injustice resulting from these faults.
- The complainant, whom I have called ‘Mr D’, complains about the social work service provided to his disabled brother, whom I have called ‘Mr C’. In particular Mr D complains:
- That over several years the Council failed to ensure Mr C received the correct assessment of his needs in accord with statutory guidance for deafblind clients.
- That for several years Mr C lived in an unsuitable residential placement in Lancashire provided by the Dalesview Partnership (‘the care provider’). Mr D says the care provider did not have enough ability to meet Mr C’s needs as a deafblind client. Also there were deficincies in his care over a prolonged period of time which the Council knew about but did not prevent.
- That when, in late 2013, Mr D and his mother identified a more suitable alternative placement for Mr C the Council misled them into believing it supported the move. It later withdrew that support following a Best Interests decision made in April 2014. Mr D says the Council followed a flawed best interest decision making procedure because it did not underake the correct assessment of Mr C’s needs.
- The Council also followed a flawed procedure when approving a Deprivation of Liberty for Mr C while living at the care provider’s accommodation.
- That later the care provider placed controls on contacts between Mr D, his mother and Mr C. It also denied him access to records. The Council failed to intervene.
- Later again, in December 2014, Mr C returned to live with his mother and Mr D at the family home. The Council then failed to secure suitable alternative accommodation available for Mr C with a care provider in its area. Mr D says Mr C could not move because the Council delayed a decision on funding the placement.
- The Council failed to explain charges made for Mr C’s care.
- The Council’s investigation of his complaint was selective and inadequate.
The Ombudsman’s role and powers
- 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)
- We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
- 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)
How I considered this complaint
- Before completing my investigation and issuing this decision statement I considered the following:
- Mr D’s written complaint to the Ombudsman and supporting information gathered via emails and telephone conversations.
- Correspondence forming the record of Mr D’s complaint before we began our investigation; i.e. setting out Mr D’s concerns and the Council’s replies.
- Information provided by the Council in response to various written enquiries.
- Relevant law and guidance, some of which I refer to in the text below.
- Comments made by the Council and Mr D in response to a draft decision setting out my thinking about the complaint.
What I found
- Mr D made his complaint to the Ombudsman in January 2016. He asked us to investigate events going back to Mr C’s placement with the care provider in 2010 (the Dalesview Partnership based in Lancashire). He also complained about events before that time, considering the Council has let down Mr C over many years. I decided to investigate the Council’s involvement in Mr C’s care from January 2013 only. I needed to find facts about the Council’s involvement from that date because only then could I come to a view on Mr D’s complaint about its actions in April 2014. This is when the Council decided Mr C should remain in that placement contrary to Mr D’s wishes, something Mr D said contradicted its earlier advice.
- I considered the Council would have records allowing an investigation into events from January 2013. Further, I noted that from April 2014 the evidence suggested Mr D had made complaint to the Council about its service. He had not let that lapse. I considered it would be unfair to penalise Mr D for any delay in the complaint coming to the Ombudsman’s attention while he tried to resolve it with the Council first. I explain at the end of this statement why I did not investigate any complaint about events before January 2013.
The complaint about statutory assessments
- I have considered each part of Mr D’s complaint in turn. I noted first Mr C is in his mid-fifties. He has always had close relations with his immediate family, consisting of Mr D and their mother who is in her eighties. He had congenital rubella as a child resulting in significant sight and hearing loss. Consequently Mr C is registered deafblind. He also has a severe learning disability. He also has osteoporosis, epilepsy and autism.
- I noted that during this investigation information Mr D provided evidence saying Mr C’s autism diagnosis was given in 2001. But for the events covered by this complaint Mr D was unaware of this. Also, the Council did not know. So the Council’s paperwork does not mention this diagnosis and instead refers to Mr C having ‘possible autism’. Mr D suggests the Council may have known of the diagnosis but chosen not to recognise this. However, I found no evidence for this statement.
- In 2001 the Government issued statutory guidance about services for deafblind people, which it reissued in 2009. In advice accompanying the guidance (LAC(DH) (2009)6) the Government asked that local authorities ensure (among other matters) that:
- It used a specifically trained person/team, equipped to assess the needs of a deafblind person, to carry out assessments for deafblind clients. In particular assessing the need for one-to-one human contact, assistive technology and rehabilitation.
- Services provided to deafblind people were appropriate. It said authorities should recognise that deafblind people may not necessarily benefit from mainstream services or those services aimed mainly at blind people or deaf people who may rely on their other senses.
- Deafblind people could access specifically trained one-to-one support workers if assessed as needing one.
- In December 2014 the Government replaced that guidance with new guidance effective from April 2015 when the Care Act 2014 took effect (Care and Support for Deafblind Children and Adults Policy Guidance). This guidance re-emphasised the points made in 2009 quoted above. In a section headed “Deafblindness – Definitions and Descriptions” the guidance explains that people will meet the definition even if they are not “profoundly deaf or totally blind”. The guidance stresses that any person undertaking an assessment for an adult with care and support needs “must be appropriately trained”. Further, local authorities “must arrange an independent advocate to facilitate the involvement of an adult in their assessment, in the preparation of their care and support plan and in the review of their care and support needs”.
- In considering the events covered by this complaint I found the Council had largely failed to ensure it followed this guidance. I found Mr C had several social workers since 2013 but none of these had specific training in working with deafblind clients. The only time Mr C received a specific deafblind assessment was in August 2014, when the Council agreed to buy in an assessment from a specialist charity. But I noted this only followed intervention by Lancashire County Council which conducted a safeguarding investigation into concerns about Mr C’s care (see below). I also noted Mr C received support from an advocate around the time a move was under discussion in 2014 (something I also discuss further below).
- In comments on the complaint the Council said that it continued to buy in such services to meet the needs of deafblind clients. But I noted it that in two care reviews undertaken since Mr C moved from Lancashire in December 2014 it had not done so. Further I noted the Council had not commissioned an independent advocate as part of those reviews.
- I also noted that even when it commissioned an independent assessment the Council appeared unwilling to act on the advice given. That assessment recommended that those working with Mr C were “specifically trained interveners” with knowledge of tactile communication and British Sign Language. The Council has questioned this advice, querying if it would benefit Mr C given his learning disability. But I saw nothing to confirm it sort to clarify the advice with the specialist social worker who undertook the assessment to see why they recommended this.
- This part of the complaint is therefore upheld. The Council is at fault for failing to ensure Mr C that since 2013 Mr C has received assessments in line with statutory guidance for deafblind clients. It is further at fault for not taking further specialist advice when wanting to query the outcome of the only such assessment undertaken.
- I consider the injustice caused by this fault is distress in the form of uncertainty. I address specific complaints about the quality of care Mr C received from the care provider below. I consider while the evidence does not point towards significant failings of care it suggests Mr C did not always receive the most suitable care given his needs as a deafblind person. In particular I note the deafblind assessment undertaken in August 2014 commented that staff at Mr C’s then-placement had only basic skills in working with deafblind clients. It implied Mr C could have received more suitably adapted care during his time with that provider had the Council been more vigilant to his specific needs as a deafblind client. Events have moved on since then, but I consider there are still useful lessons the Council can learn here. These are addressed in the section below headed “agreed action”.
The complaint about the placement in Lancashire
- I have noted above the placement in Lancashire may have better met Mr C’s needs. But I also note Mr D’s concerns about the placement went beyond the extent of training for staff meeting Mr C’s needs. Mr D had a series of concerns about how the provider met Mr C’s personal care needs. In particular Mr D said staff at the placement failed to adequately manage Mr C’s nutrition and hydration. Also Mr D raised concerns about levels of staffing, fire safety concerns and activities.
- I found no evidence the care provider did not meet Mr C’s basic personal care needs satisfactorily. Therefore I do not uphold this part of the complaint. I have reached this finding having investigated also a complaint about the involvement of Lancashire County Council with Mrs C’s acre in 2014. That authority investigated these concerns under its adult safeguarding procedures. Mr D’s complaint about that safeguarding investigation was not upheld as we found it thorough and comprehensive.
- However, this is not to say there was not some evidence the provider might have met Mr C’s needs better at times. I have noted already my concerns about the extent of training the provider had to meet Mr C’s communication needs as a deafblind client. I also noted references in the Council’s records of 2013 which implied the provider failed to comply with an action plan agreed that year. This presumably was to improve the quality of care provided to Mr C.
- So while I do not uphold this part of the complaint I understand some of Mr D’s concerns about this placement. I therefore further understand why Mr D and his mother wanted an alternative placement for Mr C and pursued this from 2013.
The complaint the Council blocked a move for Mr C in 2014
- In 2013 Mr D and his mother identified another care home in Lancashire that they thought would better meet Mr C’s needs. I noted that they discussed this at the time with Mr C’s then social worker. In December 2013 that social worker visited the alternative proposed placement and indicated support for the move.
- However, Mr C lacked capacity to decide about his accommodation. So for the move to take place the Council had to consider if it was in his ‘best interests’. I noted the social worker appeared fully aware of this. Their internal emails in late 2013 and early 2014 began that decision making process.
- But I could not see where the Council explained the decision making procedure to Mr D. So he did not know how the Council would take its decision or who it would involve. His email communications around late 2013 and early 2014 reflected his understanding the move would go ahead subject only to some further assessment and familiarisation. Clearly it was not that straightforward. But as the Council had not explained that to Mr D it had unrealistically raised his expectations. That was a fault.
- By April 2014 Mr C’s social worker had changed. The new social worker oversaw the best interest decision making procedure. They took account of Mr D’s views as well as those of the then care placement and an advocate working with Mr C. In June 2014 the Council told Mr D they did not support a move for Mr C. I will not repeat in detail all the reasons given for reaching this view. But in summary those professionals considered:
- The current placement met Mr C’s needs. Lancashire Council had not upheld a complaint under safeguarding procedures.
- A move would disrupt Mr C with potential negative results.
- The proposed alternative location was a bigger care home with a different clientele and no experience of deafblind clients.
- I have explained above that my role is not to question the professional judgment of Council officers, but to consider if they reached decisions properly. In this case I accept all the reasons advanced by the Council for not supporting Mr C’s move were relevant and therefore reasonable.
- But I considered there was still a flaw in the Council’s best interest decision making. This was because it took no specialist advice about Mr C’s needs as a deafblind client. In June 2014 there had been no needs assessment compliant with the statutory guidance. It is also evident the advocate for Mr C struggled to communicate with him. While I found his report considered and detailed it is unclear what experience he had of working with deafblind clients.
- In addition I noted that when communicating its decision the Council did not tell Mr D about the Court of Protection. This can hear disputes where local authorities and families disagree on a decision about what is in someone’s best interests who lacks capacity to decide. This omission by the Council was a further fault.
- Turning to the impact of the faults identified in paragraphs 24 and 28 I consider these communication failings added to Mr D’s time and trouble in pursuing his complaint.
- I do not find injustice resulted from the fault identified in paragraph 27. It is possible the result of the best interest decision might have been different with the benefit of specialist advice. But the reasons advanced for not supporting a move could still have weighed against it. Yet even if the decision supported a move I find it would not have happened. Because the alternative care provider later decided it could not meet Mr C’s needs in any event, after assessing his needs more thoroughly in January 2015. So I can safely conclude that even if the Council had handled this matter better it would not have resulted in a move for Mr C to Mr D’s then preferred accommodation.
The complaint about Deprivation of Liberty procedures
- In June 2014 Mr C’s care provider sought authorisation from the Council that it could continue to care for Mr C in such a way that it amounted to a “deprivation of liberty”. The background for this was a Court judgment (the ‘Cheshire West’ judgment) which clarified when care providers needed such authorisation. Before this decision such authorisations were not usually sort for care home residents compliant in their care, even if they could not leave their care home. But the impact of the judgment was that all those deprived of their liberty needed such authorisations in place.
- The Council approved such deprivation in this case for 12 months following a recommendation by an independent social worker who assessed Mr C’s case. They set out a clear rationale for their recommendations. I understood why therefore the Council accepted those.
- But Mr D complained about the assessment and set out his concerns in a meeting with the Council in late July 2014. He had some complaint about the procedure followed, arguing the assessor had not adequately consulted him or his mother. However Mr D’s main grievance centred not on the procedure followed by the Council but Mr C’s continuing occupation of a care setting Mr D thought inappropriate.
- Properly the Council agreed to review the authorisation. The reviewing social worker clearly set out Mr D’s views in the paperwork accompanying the review which appeared comprehensive. The review referred to the dispute about the care setting. It recommended referral to the Court of Protection. As I noted above it was fault for the Council not to have referred the dispute in this way earlier. But this did not flaw the deprivation of liberty procedure followed. I do not therefore uphold this part of the complaint.
The complaint about restrictions on contact
- In the notes of the July meeting Mr D and his mother said the care provider had blocked access to Mr C’s care plans and staff would not speak the family. This dispute then intensified in September 2014. The care provider told Mr D and his mother not to enter the care setting. They remained free to take Mr C back to the family home at weekends which had been the practice for some time. But it did not want them entering the building where Mr C received care.
- I found no evidence the Council scrutinised the reasons advanced by the care provider for imposing such limits. There is no evidence for example the Council asked the care provider to provide records to justify claims it made about Mr D’s behaviour. So it did not challenge a statement made by the provider justifying limits because Mr D made “a series of alerts and allegations to various agencies regarding our organisation – none of which have been upheld – but all of which have caused additional work load for the staff team”. Given the close relations between Mr C and his family I also considered the Council should have decided if these limits amounted to a further deprivation of his liberty.
- I considered the Council’s failure to investigate these limits on contact justifies a further finding of fault. The Council arranged and paid for the care provider’s service. So any fault in its provision was one by the Council also. When Mr D challenged the provider’s actions the Council therefore needed to consider if they were proportionate. In particular, unless there was evidence to suggest Mr D’s ‘alerts and allegations’ were malicious or vexatious this could be no justification for imposing limits on contacts. I could see no evidence to think Mr D’s contacts were vexatious or malicious. Throughout events he appears to have been focused solely on the needs of his brother. I accept at times he might have appeared unreasonably persistent to the care provider or Council. But I have no reason to think his motives were at any time improper.
- In considering what injustice results, I cannot say whether the care provider's actions were justified. But it seems to me unlikely that they were. While the Council’s failure to be more robust when alerted to these events added to Mr D’s distress and time and trouble in pursuing this complaint.
The complaint the Council failed to secure a move for Mr C in early 2015
- Following the decline in relations between Mr D, his mother and the care provider they decided to remove Mr C from the care provider in December 2014. The Council did not challenge this.
- Mr D and his mother asked the Council to find alternative residential care for Mr C. I note that whatever differences the Council had with the family about Mr C’s care provision in Lancashire, it made efforts to look at alternatives from autumn 2014 onwards. In February 2015 these focused on one particular care setting which had a vacancy then, located in the North East of England.
- Mr D complains the Council failed to act quickly enough to secure that placement. First he says the Council failed to put Mr C’s name on a waiting list for the placement in late 2014. I found evidence there was discussion of the placement then but found no confirmation that Mr D asked the Council to put Mr C on the waiting list. The Council recorded Mr D making such a request, but not until January 2015.
- Second, Mr D says that flowing from this delay the Council also failed to secure funding for Mr C’s placement. I found evidence there was a vacancy with the care provider in February 2015. I noted the care provider agreed to assess Mr C in early March 2015 and this assessment followed. The Council then contacted the care provider to see how the assessment went. The care provider suggested they could meet Mr C’s needs but said by that time it had filled the vacancy. The suggestion in the emails sent to the Council was that it had filled the vacancy either before Mr C attended for assessment or almost immediately afterwards.
- On balance therefore I considered the evidence pointed towards some limited delay by the Council in acting on the January 2015 request. But this was at a time when Mr D was also considering other options (such as the originally preferred alternative placement in Lancashire). On balance therefore, and taking account of what I stated at paragraph 42, I did not consider the evidence supported the view that Mr C lost a place with the preferred provider in the North East because of that delay.
- I noted after that the Council agreed in principle to fund a placement at the care setting if another vacancy arose. It also checked periodically in 2015 if further vacancies would arise but none did. Further the care provider told the Council in September 2015 it would be some months before any further vacancies arose due to planned refurbishment of the care home. The Council kept Mr D informed of these developments and discussed alternatives.
- I noted that when a vacancy finally arose around September 2016 it took the Council around four weeks to agree details of the placement. This was frustrating for Mr D given the agreement in principle the previous April. But I found nothing unreasonable in the Council’s actions during this time. The care provider’s costs had changed and the Council needed to follow a proper procedure to agree terms and approve payment. It kept Mr D informed and made sure there was no prospect of Mr C losing his placement.
- Mr D suggested the Council could have arranged for Mr C to move to the care placement sooner again, around April 2016. But I found no evidence for this in the records I saw. There is a reference in the Council records in late March 2016 to Mr D “viewing vacant rooms” but no record of any further contact after that for six months. Emails Mr D sent me in May and July 2016 suggested the care placement was still assessing Mr C’s needs so Mr C was not ready to move then. But I am aware that by August 2016 Mr D understood Mr C ready to move and sent several emails to the Council as he copied me in. I found it worrying these were not later duplicated on the Council’s records.
- I consider on balance therefore there was some fault in securing Mr C’s move to his current placement but not to the extent Mr D suggests. The injustice amounted to around four weeks avoidable delay and more time and trouble for Mr D in trying to find out what was happening.
- Another criticism I make of the Council concerns in its consideration of different alternative accommodation in July 2015. The Council’s records suggested it was not willing to fund a placement for Mr C at this location because the provider only gives “one-to-one” care. The Council suggested it was willing to fund one-to-one care in the short term but wanted this kept under review.
- The problem I have with this position is that the Council was not taking proper account of Mr C’s specific needs as a deafblind client. This is because it had not followed the proper assessment in line with Government guidance. Without that I do not find any decision about whether Mr C needed one-to-one care in the short or long term sustainable. So I find fault in the decision to reject the potential alternative placement.
- It would be speculative for me to say the Council would have come to a different view had it undertaken or arranged for the proper assessment. I also cannot say if the care provider would have accepted Mr C as suitable. Or that Mr D would have wanted Mr C to go to that setting following any assessment. But nonetheless there is some injustice here; again that of distress in the form of uncertainty.
The complaint about charges
- By law the Council could consider if Mr C could contribute to the cost of his care. I did not find any grounds to criticise the assessed contribution Mr C should pay towards his care. While I did not consider the detail of all contributions the Council asked Mr C to pay back to 2013, what records I saw of the assessment satisfied me the Council undertook its assessments correctly.
- However, I found some flaw in how the Council had paid for Mr C’s care after he left Lancashire and returned to the family home in December 2014. Around the time of the move the Council assessed Mr C’s care needs and found he needed full time help to meet his personal care needs. It agreed with Mr D that it would pay an amount equivalent to the cost of employing a personal assistant to work with Mr C full time (48 hours per week). The Council agreed Mr D could receive those funds as a ‘direct payment’ as he was the one meeting Mr C’s care needs.
- The Council and Mr D agreed this arrangement in May 2015. When direct payments went into effect the Council backdated them to February 2015. Mr D then asked if the Council could backdate further, to December 2014 when he took over caring responsibilities for Mr C.
- Despite Mr D making this request more than once I could find no answer from the Council. It has not backdated the payments nor has it explained why not. I consider this a fault. Mr D deserves some explanation for its decision.
- However I consider the injustice goes further. I do not know if the Council had any reservations about Mr C leaving his care placement in Lancashire. But if so, these did not prevent it later agreeing the arrangement described above. So it accepted Mr D met Mr C’s care needs satisfactorily after February 2015. In which case I can find no reason therefore why the Council should not have backdated the payments to December 2014 also. Because I cannot see there was any difference in the facts surrounding Mr C’s care in those months.
The Council’s complaint handling
- Before making complaint to this office, Mr D raised his concerns in various correspondences with the Council through 2014 and 2015 (including some via his MP). Because of the continuing working relations between the Council and Mr C not all the issues discussed above were raised as complaints and therefore answered through the complaints procedure. At times this made following the Council’s responses harder but for reasons beyond its control.
- As a whole I considered the Council had made genuine efforts to engage with Mr D. There will be times when we arrive at different conclusions to the Council but that alone does not make the complaint procedure flawed. At times the Council recognised mistakes and apologised for these.
- But there were some gaps in its responses. I could not see that it engaged fully with Mr D’s complaint about the care provider restricting his contacts. There were also some recognised delays in answering complaints about best interest decision making and deprivation of liberty matters (although no delay in reviewing the deprivation of liberty authorisation). However, I did not consider any failings in complaint handling significant enough to justify a further finding of fault.
- Finally, I noted that in its complaint responses the Council had made reference to Mr D complaining about care Mr C received historically, which were not upheld. For reasons explained below I have made no enquiries about any care Mr C received before 2013. I understand Mr D made complaints about previous care settings Mr C lived in. But I considered this had no relevance to any complaint about the service provided by the Dalesview Partnership.
- By making reference to past complaints the Council gave the impression that it considered Mr D was being unreasonable in making fresh complaint. But this was clearly not the case even if not all his complaints could be upheld. I considered in referencing historic non-upheld complaints the Council undermined its engagement with those complaints discussed above. Because it created an impression of bias against Mr D. This may have been unintentional but it is something the Council should consider carefully in the future.
- In paragraphs 17, 29, 38, 47, 50 and 55 I identify injustice caused to Mr C and/or Mr D as a result of fault by the Council. The Council has agreed a series of actions to remedy this injustice. Within 20 working days of this decision it will (if it has not already done so):
- Provide an unreserved apology for the failings identified in this investigation and resulting injustice;
- Give a commitment that in future all Mr C’s care needs assessments will be undertaken by appropriately qualified workers in line with the statutory guidance for deafblind clients. If need be the Council will buy in this service should it not have appropriately trained and qualified staff. Mr C will also have access to appropriate advocacy services. It will advise Mr D in writing when it will undertake its next assessment, but my expectation is that it should commence within three months of a decision on this complaint given Mr C has not had an assessment from a suitably qualified social worker since 2014.
- Pay Mr C £1000 in recognition of any distress caused by its actions.
- Pay Mr D £500 in recognition of his distress and time and trouble in pursuing this complaint.
- Pay Mr D a further amount at the weekly rate of the direct payments awarded from February 2015, to cover the period December 2014 to February 2015 when Mr D met Mr C’s care needs with no care and support plan or direct payment agreement in place.
- For the reasons set out above I uphold this complaint, finding the Council acted with fault causing injustice to the complainant. The Council has agreed to undertake a series of actions to remedy that injustice. I consider this will provide for a fair and proportionate remedy the complaint. Consequently I have completed my investigation satisfied with the Council’s response to our findings. This is on the understanding that action will follow.
Parts of the complaint I did not investigate
- I did not investigate any complaint Mr D had about the Council’s involvement in Mr C’s care before January 2013. As I have explained above any complaint made in January 2016 about the Council’s involvement from this time would be a late complaint.
- I found no special reasons to investigate events pre-January 2013. First, this is because Mr D provided no compelling reasons why he could not have complained sooner about events pre-January 2013. Second, I understood Mr C had a history of involvement with the Council pre-dating the events covered by this complaint. But I found no reason to think there was any direct causal link between events before January 2013 and events after that which formed the subject of this investigation. Third, I also note the law which sets out the Ombudsman’s powers to investigate complaints is there for a reason. The further back in time we investigate the less likely we are to find a complete record of events, while officers will leave their posts and memories become more unreliable. So I was not persuaded an investigation into these older events was practical.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman