Decision : Upheld
Decision date : 14 Mar 2018
The Ombudsman's final decision:
Summary: The Council was at fault for failing to involve Miss Y’s relatives, Mr and Mrs X, or an advocate, in the decision to remove Miss Y’s night time care when Miss Y lacked capacity to be involved in the decision. The Council also failed to review Miss Y’s care and support plan. As night time care is now in place the injustice to Miss Y was limited. However, this caused Mr and Mrs X distress and worry. The Council has agreed to pay Mr and Mrs X £150 to acknowledge their distress, review Miss Y’s care and support plan and involve Mr and Mrs X or an advocate in future decisions about Miss Y’s care and support
- Mr and Mrs X complain that the Council removed night time care for their sister, Miss Y, who has a learning disability and epilepsy. They are concerned that this is not a safe environment for Miss Y. They also complain that the Council failed to consult them ahead of changes being implemented, or to provide an advocate for Miss Y.
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 documents provided by Mr and Mrs X and the Council. I also asked questions of the Council.
- I looked at the law and statutory guidance, in particular the Mental Capacity Act 2005 and the Care Act 2014.
- Mr and Mrs X and the Council have had opportunity to comment on my draft decision.
What I found
- 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 themselves.
- A 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. 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.
- Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. The authority should consider a light touch review six to eight weeks after agreement and signing off the plan and personal budget. It should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. As well as the duty to keep plans under review generally, the Act puts a duty on the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one.
- A council is required to arrange an independent advocate to represent and support the person and facilitate their involvement in a review if it considers the person would experience difficulty in understanding relevant information, communicating their views or retaining and using relevant information. (Care Act 2014, section 67)
- Mrs X’s sister, Miss Y, has lived in a Council funded property supported by carers, both day and night, for 22 years.
- In April 2016, Miss Y was the only resident living in the property. The Council decided that, although another resident would be moving in shortly, that this was not financially viable. The Council, and the care provider running the home, considered an option to remove Miss Y’s overnight carer, and to trial assistive technology. This would include sensors on the bed and the doors and windows. There would also be support available to Miss Y as the home next door would still have an overnight carer.
- The Council felt that Miss Y did not have the capacity to understand the full implications of being left alone at night. It completed a mental capacity assessment on this issue and then made a best interests decision. There were no family members present during this process and the Council did not provide Miss Y with an advocate.
- The Council decided to go ahead with a trial of the new system. It fitted the assistive technology and provided Miss Y with a simple mobile phone so that she could call carers next door if she needed to.
- Mr and Mrs X were informed about the changes to Miss Y’s support. When they asked how soon the trial arrangements would start they were told they had already been in place for 10 nights.
- When Mr and Mrs X challenged this decision, they were told if the new arrangement did not go ahead as planned, Miss Y would have to move out of the home.
- Mr and Mrs X raised their concerns about the trial with the care provider. They felt that Miss Y was not safe as she would open the door to strangers and would get up in the night and need reassurance. They did not feel she would understand how to operate a mobile phone.
- The care provider agreed that an overnight carer would be reinstated until the second resident moved in the following month.
- Mr and Mrs X were unhappy and complained to the Council.
- The Council responded to this complaint and explained that it completed a mental capacity assessment and made a best interests decision. The Council decided that the risks to Miss Y from removing the overnight carer were acceptable. It also stated that Miss Y had repeatedly stated that she wished to stay in her home and that using assistive technology would mean that staying in this property was an option.
- The Council apologised to Mr and Mrs X for not involving them in the process. It assured them it had updated its system to include their details and they would now be consulted before any decisions were made about Miss Y’s care.
- The Council also clarified that night time staff were currently in place due to the needs of the second tenant who had moved in to the property. It stated that this was a temporary measure and was being reviewed monthly.
- The Council did carry out a mental capacity assessment and take a best interests decision when deciding to remove Miss Y’s night time care. The Council states that the removal of night time care and use of assistive technology is a positive way to manage the risks to Miss Y, while increasing her independence. It also suggests that Miss Y wished to continue living in this property and this step had allowed her to do so
- However, these decisions were taken with no involvement from her family. The Council says it enquired about next of kin details with the care provider but they were not provided. The Council did not pursue this. This is fault and the Council have apologised to Mr and Mrs X. As Miss Y had no family support in the process, the Council should have provided Miss Y with an advocate to support her. The Council’s failure to do this was fault.
- The Council has not completed a recent review of Miss Y’s care and support plan. There is an expectation that this should happen every 12 months and the Council is at fault for not doing so. It has stated that a review will now be done urgently and that Mr and Mrs X will be invited to take part.
- During the trial period, there were no issues with Miss Y’s care. The Council reviewed support arrangements when a second resident moved in and night time care was restored. Therefore, the faults have not caused Miss X an injustice. However, Mr and Mrs X were caused distress and worry by the removal of Miss Y’s night time care and the Council’s failure to involve them in the decision making process.
- The Council has agreed that, within a month of my final decision, it will:
- Apologise to Mr and Mrs X and pay them £150 for the distress caused by the Council’s failure to keep them informed of changes to Miss Y’s care;
- Conduct a review of Miss Y’s needs and care plan;
- Ensure Miss Y’s relatives or an advocate are involved in any future decisions about her care and support, including any changes to her night time care.
- I have now closed my investigation. There is evidence of fault on the part of the Council leading to injustice and the Council has agreed to take action to remedy that injustice.
Investigator's decision on behalf of the Ombudsman