Decision : Upheld
Decision date : 25 Jun 2019
The Ombudsman's final decision:
Summary: Mr and Mrs C say the Council is at fault for its failure to provide suitable care for their son, Mr D. The Council is at fault for delay and other failures in providing support. It is also at fault for a failure to assess Mr D’s capacity to make his own decisions. This caused him injustice. The Council should assess Mr D’s capacity. It should pay sums in recognition of these faults to both Mr and Mrs C and Mr D. It should use its best efforts to try to find suitable accommodation for Mr D.
- Mr and Mrs C say that the Council has not done all it should have done to help find a way for their son, Mr D to live semi-independently and to ensure that assessments of his needs adequately consider his autism spectrum disorder.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. A complaint is late if someone complains 12 months or more after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- 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 spoke to Mrs C. I considered documents she sent to me. I wrote an enquiry letter to the Council. I considered the Council response alongside the relevant law and guidance.
- I sent my draft decision to Mr and Mrs C and the Council and invited comment.
What I found
What should happen
The Autism Act 2009
- The Autism Act 2009 required the government to publish an autism strategy and to periodically review it. The Secretary of State for Health had to publish guidance for local authorities. Local authorities must follow this guidance unless there is good reason to depart from it.
- Since 2015, the Care Act 2014 works in conjunction with the Autism Act to regulate the assessment and provision of care for those with ASDs.
- The government last published statutory guidance under the Autism Act in 2014. It said, among other provisions that Councils must:
- Ensure that those carrying out Care Act needs assessments have the skills and knowledge to do so and are appropriately trained or are supported by someone with that knowledge;
- Ensure that training is available for all staff particularly those likely to come into contact with those with ASDs;
- Provide services which support individuals across the spectrum of needs;
- Ensure that they take a personalized approach to recognize the impact autism has on people with ASDs;
- Cooperate with other local bodies to provide cohesive care and support services;
- Gather information and statistics about the local population with ASDs;
- Ensure that they devise local autism plans or strategies on how people can access local autism advice and information easily; and
- Ensure that people with autism and complex needs can live as independently as possible in the community;
The Care Act
- The Care Act 2014 introduced a requirement that local authorities should promote ‘wellbeing’ and “signifies a shift from existing duties on local authorities to provide particular services, to the concept of ‘meeting needs’…. The concept… recognises everyone’s needs are different and personal to them. Local authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into”. (Care and Support Statutory Guidance, Ch 1)
- A council must carry out an assessment for any adult who seems to need care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9)
- Councils must decide whether a person’s needs for care and support are eligible for services from the council by using the national eligibility threshold. The national eligibility criteria set a minimum threshold for adult care and support needs and carer support needs which local authorities must meet. They may only consider “whether:
- the adult’s needs arise from or are related to a physical or mental impairment or illness
- as a result of the adult’s needs the adult is unable to achieve 2 or more of the specified outcomes (which are described in the guidance below)
- as a consequence of being unable to achieve these outcomes there is, or there is likely to be, a significant impact on the adult’s wellbeing
- A council must consider whether to carry out a carer’s assessment if it appears the carer has need for support. It must assess the carer’s ability and willingness to continue in the caring role. It must also consider the results the carer wishes to achieve in daily life and whether support could contribute to achieving those results (Care Act 2014, s10)
- The Act says that the local authority can meet the carer’s needs by providing a service directly. In these cases, the carer must still receive a support plan which covers their needs, and how they will be met. (Care Act 2014, s 25)
Allocation of resources
- The Care and Support Statutory Guidance states: ‘There are many variations of systems used to arrive at personal budget amounts, ranging from complex algorithmic-based resource allocation systems (RAS), to more ‘ready-reckoner’ approaches. Complex RAS models of allocation may not work for all client groups, especially where people have multiple complex needs, or where needs are comparatively costly to meet, such as in the case of deaf-blind people. It is important that these factors are taken into account, and that a ‘one size fits all’ approach to resource allocation is not taken. If a RAS is used, local authorities should consider alternative approaches where the process may be more suitable to particular client groups to ensure that the personal budget is an appropriate amount to meet needs” (Care and Support Statutory Guidance 2014, 11.23)
The Mental Capacity Act 2005
- The Mental Capacity Act 2005 contains the framework for deciding whether people have mental capacity to make decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a council should take when dealing with someone who may lack capacity to make such decisions. It describes when to assess a person’s capacity to decide, how to do this, and how to make a decision on behalf of somebody unable to do so themselves.
- A person must be presumed to have capacity to decide unless shown otherwise. A person should not be treated as unable to decide because he sometimes makes unwise decisions or because of assumptions about their condition.
- 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 4 of the Act provides a checklist of steps that decision makers must follow to determine what those are. The decision maker must also consider if there is a less restrictive option that can achieve the same outcome.
- If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the court of protection might need to decide what is in the person’s best interests.
Background – Council provision
- The Care Act says that the responsibility for adult social care rests with local authorities. Therefore, the responsibility for Mr D’s care lay with the Council over the entire period considered.
- However, in 2014, the Council entered into a partnership with its local National Health trust for the provision of adult social care. The Council was entitled to enter into such an arrangement but the statutory responsibility continued to lie with it and, where there were failures, the Ombudsman has found fault.
- In early 2019 the partnership with the NHS trust ended and the Council has since resumed day-to-day control of adult social care in its area. Therefore, while, over much of the period about which Mr and Mrs C complain, the Council bore only the statutory, but not the actual responsibility for Mr D’s care, it now has full responsibility. Nonetheless, I will refer, generally, to Council fault.
Background – Mr D
- Mr D is a middle-aged man with an autism spectrum disorder (ASD) and mild learning difficulties. He can read and write and is able to carry out simple tasks under supervision in supported, part-time work placements. He has always lived with Mr and Mrs C who are now of retirement age. When he turned 18, Mr D was assessed by the Council where the family then lived as being eligible for social care because of his ASD.
- In 2009, the Council prepared a support plan for Mr D. It said he should live in supported housing with compatible peers with a high level of support from carers with knowledge of autism.
- Mr and Mrs C say they want Mr D to live as independently as possible in their town. Mr D has attended independent living college courses. The Council says he has wanted to live independently for 20 years. He still lives at home.
- The family moved to the Council’s area about fifteen years ago and asked the Council for help shortly thereafter. They say the Council took three years to produce a social care assessment. I have no evidence about this and, I have decided it was too long ago for me to investigate.
- I do accept, however, that, in cases where delay is alleged, limiting investigation strictly to a one-year window is not enough to provide a true picture of the case. I have, therefore, investigated events going back to 2016 and read papers going back to 2014 for relevant background information.
- I also accept that the perception on Mr and Mrs C’s part that the Council was dragging its feet in providing support has led them to treat the Council with suspicion.
- In January 2014, a Council officer, Officer O, who was handling Mr D’s case, wrote to Mr and Mrs D asking if, as he had not heard from them for a while, they had time to consider Mr D’s personal assessment.
- Mrs C wrote back some days later questioning why she had been asked to fill in a funding assessment and why his needs had to be placed in a funding band before completing his assessment.
- She said that Mr D’s needs were complex and personal to him and his needs were such that he would ‘not transpose easily into any of the social care settings you have mentioned’. She said:
- Mr D would find living in a rented home with others with support from a domiciliary agency an impossible challenge;
- He would find living alone with similar support equally challenging;
- Mrs C would be unable to support and advise ‘unmotivated staff in an unfamiliar/unsuitable setting in which I am viewed as an interfering presence’;
- Mrs C could not afford to train and supervise her own team to support Mr D and, at her age, would be unrealistic;
- The Council’s ‘Shared Lives’ programme which would see Mr D living with another family was unacceptable;
- Autism specific residential provision was also unacceptable as it would be ‘a ghetto’;
- Companies providing autism specific care were not impressive and would probably not be able to help.
- In 2016, a new social worker, Officer P, took over the case and began an assessment. This was meant to be a joint assessment for Mrs C and Mr D but, in fact, only dealt with Mr D’s needs.
- Mr and Mrs C were suspicious of Officer P. They asked her to provide an account of all her relevant experience. The Council sought to accommodate them by involving a consultant clinical psychologist from the local NHS trust with great experience of dealing with ASDs, Ms X.
- Before any meeting took place, Mrs C wrote to the Council saying that, as far as Mr and Mrs C were concerned, ‘we have come to the end of the line. We have repeatedly expressed our concerns (since about 2006!) that [Mr D’s] social care assessments and resultant suggested placements have not reflected an understanding of his autism and how this impacts on his functioning as a learning disabled man’.
- She also said ‘I suspect that [the Council] has cause for concern as to how they are implementing the Autism Strategy. We cannot be the only family who are hounding them on this matter. They are probably breaking the law and it is only a matter of time before this is tested in court’.
- The Council took steps to involve Mr and Mrs C in the process and to prove to them Ms X’s expertise. It also prepared to invite Mr and Mrs C to visit their existing facilities. It proved difficult to arrange mutually convenient dates for an initial meeting with both Mr and Mrs C and Ms X being busy but a meeting eventually took place in May 2016. A second meeting took place in early June 2016.
- Mr D attended the meeting briefly but then left. Officer P’s note shows that the ‘consensus is that Mr D has capacity to understand he can participate if he chooses but has deferred to his parents to speak on his behalf for the time being’.
- The notes go onto record ‘Mrs. C became very agitated when we discussed DoLS (deprivation of liberty safeguards) and was adamant that if this was applied to Mr D then she would not permit him to leave the family home. She also said they would point blank refuse an advocate for Mr D and this is their role. She also insisted on taking control of his budget as she wants complete control over arrangements. She questioned information sharing with prospective providers. Mrs. C in particular is very mistrustful of the Local Authority apparently because of previous experiences. She told me they have been addressing Mr D moving out since his eighteenth birthday.
- Nonetheless, the meeting continued and a draft assessment completed. Ms X completed a report. Mr and Mrs C had great confidence in her.
- Unfortunately, Ms X had to leave her post with the local NHS trust for personal reasons in October 2016. Officer P recorded that she considered this to be ‘quite catastrophic’ given Mr and Mrs C’s distrust of the Council.
- The records show that Ms X and Officer P worked hard to try to complete the draft report by the end of October and that Mr and Mrs C agreed to it, bar two minor comments on 27 October 2016. The notes record that Officer P says she failed to send the report to Mr and Mrs C until late January 2017 because of an oversight due to illness and efforts to continue to work with Ms X on a consultancy basis.
- The assessment found that Mr D required help in doing the following
- Managing and maintaining nutrition
- Maintaining personal hygiene
- Being appropriately clothed
- Using the home safely
- Maintaining a habitable environment
- Developing and maintaining personal relationships
- Accessing and engaging in work, training, education or volunteering; and
- Making use of facilities such as public transport.
- Mr D had wanted to move out of the family home for twenty years but had been prevented from doing so by a lack of appropriate support;
- If he was to move out, he would need appropriate support;
- His carers needed ‘a bespoke training package’ created by Ms X
- His care should take an ‘inclusive approach’;
- Speech and language therapy and assistive technology would help him;
- He must maintain his current activities while building a ‘circle of support’ to support him;
- There should be a person-centred plan to enable him to move out of home.
Was there fault causing injustice?
- Having accepted that Mr D had eligible needs, the Care Act is clear that the Council had a duty to meet those needs. The Council assessed Mr D’s needs as eligible in 2014 and again in 2016, by which time the Care Act was in force.
- After Mr and Mrs C complained to the Ombudsman, a Council officer wrote to them in March 2019 saying, ‘it is clear that there has been unacceptable delay in this case’. I agree. This delay was clear fault and it has caused injustice both to Mr D who has had no chance of moving into independent accommodation in the interim and to Mr and Mrs C.
- Although the Council upheld Mr C’s complaint in December 2014 and promised further action, there was no progress until Officer P took over in February 2016. This was fault.
- Having been appointed, Officer P completed a second assessment between February and June 2016 with the help of Ms X. Mr and Mrs C agreed its wording. The Council again agreed Mr D had eligible needs and said it would meet them.
- Thereafter, there was inexcusable delay on the Council’s part. It was not the Council’s fault that Ms X retired but, having decided it was expedient to retain her services, which she was happy to give, for a mere 15 hours of paid work, it is quite extraordinary that progress was delayed for well over a year, during which time Ms X became permanently unavailable, unable to decide how to pay for it.
- This was, perhaps, an unusual circumstance in that Ms X retired unexpectedly but was not so strange that it was unthinkable. This contributed to the fault but, in response to my draft, the Council has said that the fault, in fact, lay with the NHS Trust. I accept that this was the case.
- The Council did write to Mr and Mrs C in early 2019 offering to help. This was too little too late.
- To date the panel hearing has still not happened. Mr D has no budget. This is fault. The Council has a duty to meet eligible needs and cannot allow its own difficulties to prevent its provision.
- Mr and Mrs C suspect that the Council has deliberately delayed reaching a funding decision to save money. I have seen no evidence of deliberate delay.
Refusal of services
- Having said this, it is also clear that, in 2014, Mr and Mrs C refused offers of assistance without trying them first. They say that this is because the Council does not understand Mr D’s autism.
- In 2014, Mrs C wrote to Officer O rejecting six separate suggestions of potential solutions for Mr D as unsuitable in principle. At this point, Mrs C made assumptions which were not supported by evidence. She assumed, for example, that these suggestions would not meet the requirements of the 2009 care plan, and that Mr D would not be able to adapt, with support, to different circumstances. She also assumed that care staff would be ‘unmotivated’ and would view her as ‘an interfering presence’ when no facility or staff had been identified.
- In 2016, Officer P identified a further option of independent living with support. Mrs C initially showed interest and asked to see the facility but, in the end, did not go as she believed it self-evidently unsuitable. She wrote to Officer P to ask how she could have considered it might be suitable.
- In October 2017, Mr D wrote to Officer P, at the instigation of Mrs C, to ask when he might be able to move out of the family home. Officer P responded saying that she was continuing to work on it. However, on the evidence, there must be a danger that no accommodation acceptable to Mr and Mrs C will ever be found.
- Case law is clear that service users and their carers cannot dictate what care they should receive. The care they want is not the same as the care they need. Professionals must make care decisions in the best interests of service users.
- This complaint is made on Mr D’s behalf. Mr and Mrs C know him better than anyone. Therefore, the Council, quite rightly, involved them in their work. Mr D himself was only peripherally involved.
- Mr D is an adult and the Mental Capacity Act says an adult must be deemed to have capacity to make decisions, and allowed to do so, unless it is proven otherwise. No assessment of Mr D’s capacity ever took place. But, if Mr D has capacity and does want to live independently and Mr and Mrs C, with the best of intentions, refuse options which would allow that to happen, there may be a conflict of interest.
- Neither has there been any decision as to whether Mr D might require an advocate to support him. Mrs C firmly refused any such suggestion in 2016. Although concerns were raised, the Council has never considered this. I find the Council at fault for this failure.
- The Council also undertook in 2015 to conduct a carers assessment for Mrs C. It did not do so. There is some suggestion in the notes that Mrs C ‘resisted’ such an assessment but, I have seen no suggestion of this from Mrs C. In the absence of any evidence to gainsay this, therefore, I find the Council at fault for a failure to conduct a carer’s assessment of Mrs C.
- Mrs C has said the Council may well be in breach of the law because of its failures to deal appropriately with people with ASDs and because it has not acquired adequate institutional knowledge of ASDs. She says this has led it to make inappropriate
suggestions for Mr D’s future care.
- I cannot say the Council is in breach of the guidance issued under the Autism Act. The guidance imposes general, rather than specific, duties on councils and I have seen no evidence that it has failed to meet them. For example:
- The Council says it has made autism/ASD training available to all staff and encourages them to intend. The training is provided by a local autism charity. Over 600 members of staff have attended so far. I cannot find fault;
- Officer P gained support from Ms X who, Mr and Mrs C accept, has great expertise in ASDs, to assist in the creation of the assessment. Officer P also asked her to contribute to the funding assessment;
- The Council did try to tailor its suggestions to meet Mr D’s needs;
- It also cooperated with the NHS trust to provide care and support services;
- And it attempted to find a way for Mr D to live independently.
- The most important thing to try to achieve through my recommendations is that the Council should find a way to accommodate Mr D as soon as possible. I therefore recommend that, within four weeks, the Council should:
- Apologise to Mr and Mrs C for the delays in assessing Mr D and Mrs C;
- Pay Mr D £500 for the delay in his case; and
- Pay Mr and Mrs C £300 in recognition of the time and trouble they were put to.
- Find a replacement psychologist or other professional with expertise in ASDs acceptable to Mr D and commence work with the family;
- Learn from Mr and Mrs C what kind of provision they consider would be suitable and get an agreed statement as to what it might be;
- Assess Mr D’s mental capacity;
- Assess Mr D’s wishes, if appropriate;
- Consider the appointment of an independent advocate to represent him;
- Assess Mr and Mrs C’s needs as carers, should they wish it.
- Provide at least one suggestion of accommodation which accord with the provisions of the 2009 support plan and, as far as possible meets with Mr and Mrs C’s approval; and
- Write to the Ombudsman to confirm that funding delays such as that involving Ms X are no longer possible.
- I have decided that the Council was at fault for delay and a failure to conduct a capacity assessment. I have closed my investigation.
Investigator's decision on behalf of the Ombudsman