Decision : Upheld
Decision date : 09 May 2018
The Ombudsman's final decision:
Summary: The Council was wrong to introduce Assistive Technology to X’s supported living arrangements without taking into account his parents’ and carers’ view of his ability to cope, as well as its own assessment of his needs. Following a six-week review, the Council withdrew the AT. However, there is no doubt that in the meantime X was caused some significant distress and the Council now recognises that, will apologise to X and his family and offer a sum to acknowledge the distress caused. The complaint is upheld.
- The complainants (whom I shall call Mr and Mrs S) complain that the Council imposed an Assistive Technology (AT) system on their disabled son’s (X) supported living arrangements to replace the night-time support he previously received. The system caused X considerable anxiety. Mr and Mrs S also complain that their complaint to the Council was not handled independently and they had no immediate right of appeal against the Council’s decision to change their son’s provision.
The Ombudsman’s role and powers
- 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)
- 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
- I considered all the written information provided by Mr and Mrs S and the Council. All parties had an opportunity to comment on an earlier draft of this statement before I reached a final decision.
What I found
- The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the local authority must involve any carer the adult has.
- The Care and Support statutory guidance says, “Where the local authority provides or arranges for care and support, the type of support may itself take many forms. These may include more traditional ‘service’ options, such as care homes or homecare, but may also include other types of support such as assistive technology in the home” (10.12)
- The guidance also says, “However the local authority is meeting needs, the principles in this chapter should be followed, such as ensuring the process is person-centred, and involving and taking all reasonable steps to agree the plan with the person….. In addition to taking all reasonable steps to agree how needs are to be met, the local authority must also involve the person the plan is intended for, the carer (if there is one), and/or any other person the adult requests to be involved….. The person, and their carers, will have the best understanding of how the needs identified fit into the person’s life as a whole and connect to their overall wellbeing (see chapter 1). They are well placed to consider and identify which care and support options would best fit into their lifestyle and help them to achieve the day to day outcomes they identified during the assessment process” (10, passim)
- Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs.
- X is a man with Down’s Syndrome and learning disabilities. He has a hearing impairment and poor communication skills. He is resident in supported living accommodation and receives Direct Payments from the Council to pay for the cost of his care. Until April 2017 X’s support plan included the provision of night time care.
- X had an annual review of this care and support needs in March 2017. His parents Mr and Mrs S say his needs were properly evidenced and acknowledged in the assessment documents. The assessment identified that X was unable to appreciate risk and seek help in an emergency; that he was at risk of isolating himself if in pain, and that he had difficulty handling appliances.
- In April the social worker who undertook X’s assessment met Mr and Mrs S again. They say she told them there would be a reduction in X’s Direct Payments because the night-time support would be withdrawn and replaced for a trial period with voice-controlled AT. Mr and Mrs S say they told the social worker the reasons why it would not be suitable for X – his hearing impairment, his communication difficulties, the fact that he took longer to process information – but they say she told them that they did not know the AT would not work and the Council was obliged to try it as a more cost-effective way of providing X’s support.
- Mr and Mrs S complained to the Council on 21 April that their concerns about X’s safety if the AT system was installed were being ignored. The Council acknowledged their complaint on 5 May.
- The Council sent Mr and Mrs S a support plan for X’s care on 9 May and asked them to respond within 7 days. The support plan said that a voice-activated AT system would be installed at his accommodation.
- On 16 May Mr and Mrs S wrote again to the Council. They said there was little correlation between the discussions at X’s assessment and the support plan which had been sent to them for agreement. They said they believed the reduction in the budget was for purely financial reasons: they pointed out that X’s condition could not have improved since the previous year because he had Down’s Syndrome.
- The Council responded to the complaint. It said X did not have specific needs for support at night, but needed support with communication to call for help in difficulties, and it was trialing AT for use in such circumstances. It said if it believed that the trial was not successful on the provision of evidence, it would review it. Separately the Council also apologized that the AT system chosen was voice-activated and said there were other systems which might be more suitable.
- The care provider which ran the supported living accommodation also contacted the Council on 10 June. She said, “we now have evidence that (X) is unable to respond to any alarms, furthermore we have had two incidents of two Ambulance crews turning up …and on another occasion of three police turning up as the intruder alarm was set off…he has lost one pendant, replaced, lost another one, is hiding them…. is putting his head down refusing to co-operate when asked to be involved in training sessions….this is causing distress. He has no idea why or what we are doing this for and his speech and language therapy report provided to you includes the need for ALL communication to be augmented with sign.”
- On 20 June, the social worker emailed Mr and Mrs S to say that there was now sufficient evidence from the care provider to show that X’s needs could not be met by AT “at this point”.
- Mr and Mrs S say they received a revised support plan on 22 July but it omitted the mention of night time support. They say it was not until they had engaged a solicitor to write to the Council – twice – that they received a revised plan which stipulated that X required assistance to maintain his safety at night.
- The Council says that in common with other local authorities it has been looking at ways of promoting independence for service users. It says there was evidence that X could carry out a simple task on his own in the community (“X can go to the local shop unsupervised with picture cards, however, he cannot read or count or make himself understood so he requires observation by staff to ensure that he is safe and always pays for items he has chosen”) and that putting in AT, while not immediately removing the sleep-in support from the property, was one way of giving X space to learn while retaining a safety net of provision.
- The Council says the request for AT in this property followed a standard process but it is now clear that insufficient instruction was given to the supplier to make sure that voice-activated AT was not installed for X. The Council apologises for that.
- In response to the complaint that Mr and Mrs S’s views were ignored, the Council says “A support planning meeting is held with all the people invited to the review of assessment information and consideration given to the most cost effective way to meet the individual’s needs within the situation that they currently live in”, and that Mr and Mrs S were involved in that process. The social worker says she also met X at a “meet and greet” event before the start of the review.
- The Council says its policy is to investigate complaints as close to the point of contact as appropriate. It says it did not consider this complaint met the criteria for an operationally-independent investigation and response.
- Mr and Mrs S say that as parents they were caused considerable anxiety for several weeks about the amount of risk X was exposed to while the AT was trialed, until the Council agreed to reinstate the budget for night time support and withdraw the AT. They say (and the care provider’s comments confirm) that X became anxious and distressed during that period but because of poor communications skills he could only indicate his distress by hiding or losing the alarms, switching the alarms off, or refusing to co-operate with training.
- The Council says it looks at ways of promoting independence. However, that has to be balanced against risk and it appears that in this case, the balance was tipped too far. There is at least an appearance that the Council intended to trial the AT whatever Mr and Mrs S said during X’s assessment. It is difficult to see how the Council otherwise reconciled the assessment that X was unable to respond appropriately to emergencies or let others know if he was in pain, with the introduction of voice-activated technology for someone who was hearing impaired and had poor communication skills. That was fault, which caused X injustice and anxiety for Mr and Mrs S.
- The Council also delayed in issuing a revised support plan which made it clear that X did need help to maintain his safety at night. That caused additional anxiety for Mr and Mrs S who were understandably fearful that the Council could, on the basis of the support plan which was extant, reintroduce the technology.
- The Council apologises to X and to Mr and Mrs S for the way in which it imposed the introduction of assistive technology.
- Within one month of my final decision, the Council agrees to offer a payment of £500 for the benefit of X in recognition of the distress caused to him during that period. It will also offer a payment of £250 to Mr and Mrs S for their time and trouble in making this complaint.
- There was fault by the Council which led to injustice for X and for Mr and Mrs S.
Investigator's decision on behalf of the Ombudsman