Summary: Mrs X complains the Council failed to appoint an appropriate advocate for her brother (Mr Y). The Council was at fault for delaying the assessment of Mr Y’s capacity and appointing an advocate. This did not cause Mr Y a significant injustice as there were no gaps in his care and support provision. The Council has since improved its processes to ensure a better service is provided in the future.

The complaint

1. Mrs X complains the Council, when carrying out her brother’s care and support assessment, failed to:
• recognise her brother’s learning disability meant that he lacked mental capacity;
• failed to establish whether her brother would have difficulty in participating in the assessment process; and
• failed to appoint an appropriate independent advocate.

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The Ombudsman’s role and powers

2. 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

3. I have considered:
• Mrs X’s complaint and supporting information;
• The Council’s response to Mrs X’s complaint and to my enquiries;
• The Council’s case notes for Mr Y;
• Mr Y’s Assessment Report and Care and Support Plan;
• July 2017 LGSCO focus report “The Right to Decide: towards a greater understanding of mental capacity and deprivation of liberty”;
• The Care Act 2014; and
• The Mental Capacity Act 2005 and Code of Practice.
4. Mrs X and the Council have had an opportunity to comment on my draft decision. I have considered these comments when making my final decision.

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What I found

5. The Care Act 2014 sets out the legal framework for assessments for individuals who may have needs for care and support.

The Mental Capacity Act 2005 and Code of Practice

6. Mental Capacity Act 2005 sets out the principles for working with people who lack capacity to make a particular decision.
7. The Code sets out the steps that must be followed by professional and paid carers when considering whether someone lacks mental capacity.
8. Councils should ensure they respect the first principle of assuming capacity. Making an unwise decision does not necessarily indicate a lack of capacity. However, it is important to carry out an assessment “when a person’s capacity is in doubt”.
9. The Act says the Council must make arrangements to enable independent mental capacity advocates (“advocates”) to be available to represent and support individuals.

What happened

Council Visits

10. Between February and May 2018, the Council visited Mr Y four times. These visits were triggered by the fact that Mr Y’s current support provided by a mental health charity, was due to end in March. During these visits, Mr Y’s support worker was present. She said she visits Mr Y at least once a week.
11. During the home visits, the Council observed Mr Y had good mobility and was washed and well dressed. The Council’s notes from earlier visits show that Mr Y said he could wash and dress himself, prepare meals and do his laundry.
12. The notes from later home visits show that Mr Y said he only washes and cleans his teeth if knows his support worker is coming. He said he does not clean and tidy his flat. A cleaner comes once a week. He also said that he gets confused and forgets things. He said he needs his support worker to explain things to him and remind him of appointments.
13. The notes show that direct debits are in place to pay Mr Y’s bills. However, Mr Y said that he goes to the pub every day and spends a lot of his money. He says often the next day he cannot remember what happened the night before. He said he has spoken to the bank and asked them to cap his daily withdrawals.
14. The Council recognised that without support Mr Y would neglect self-care and domestic-care. It also said it was evident that without support, he would miss appointments. He could also be vulnerable to manipulation.
15. In May, the Council referred Mr Y for a care and support assessment. It said he required a financial assessment for either a personal budget to hire a personal assistant (PA) or a package of care to support him with his daily tasks.

Needs Assessment

16. In June 2018, the Council carried out a needs assessment of Mr Y. The assessment report shows the Council recognised that Mr Y would be likely to have substantial difficulty understanding the process. It identified that Mr Y had Mrs X and his support worker to support him to understand.
17. The Council asked Mr Y a range of standard questions to assess his eligibility for support. The report concluded that Mr Y was eligible for some support. It acknowledged that Mr Y had identified Direct Payments as his support preference. He said this would give him flexibility.
18. The Council identified a range of goals for Mr Y to achieve with the right level of support. This focussed on: maintaining a habitable home environment; managing and maintaining nutrition; and being able to make use of the home safely.
19. The Council discussed the charging policy with Mr Y.
20. The report shows that the proposed start date for Mr Y’s support as 9 July 2018.

Advocacy

21. In late July, the Council visited Mr Y. He wanted to discuss advocacy. He said that he felt he would benefit as he gets confused and that made him anxious. The Council agreed and made the referral to an advocacy service.
22. Mrs X contacted the Council. She was concerned with the lack of progress with her brother’s support. The Council advised her that the assessment showed that Mr Y is eligible for care and support. It said that it had discussed options with Mr Y and that he would prefer Direct Payments.
23. During the conversation, it appears that there was some confusion over who manages the Direct Payments. The Council explained that it would not manage Mr Y’s finances. Mr Y would be responsible to employ a personal assistant and manage the contract and other related issues.
24. The discussion identified that Direct Payments would not be the best option for Mr Y. The Council said a care package would be more regimented with set times and appointments. Mrs X agreed this would be beneficial to Mr Y.
25. Mrs X asked the Council whether it had carried out a mental capacity assessment of her brother. The Council said that during its earlier visits, it had no reason to question Mr Y’s capacity.
26. Mrs X explained that her brother often appears more capable than he is. He would often change his mind and make decisions without understanding the consequences. Mr Y’s decision to choose direct payments over a care package was an example of this.
27. The Council said that it had made a referral to an advocacy service. It said when it spoke to the Independent Mental Health Advocacy, it explained that it did not have capacity to take on new clients.

Care and Support

28. The day after the Council’s conversation with Mrs X, it spoke to the relevant service. It explained Direct Payments were no longer an option for Mr Y. It said that when the service meets with Mr Y to discuss options, his support worker would need to be there. It explained that the Council was still awaiting an independent advocate for Mr Y.
29. Mrs X said she received the Care and Support Assessment and Plan in August. She said that she had to chase this several times. She said that she submitted comments to the Council stating errors and omissions in the Plan.
30. Over the next few months, the Council visited Mr Y several times. During these visits, Mr Y’s support worker was present. The Council carried out a financial assessment and it was explained to Mr Y what he would need to pay towards his support. The notes show that he understood this. The Council and a representative from adult support services agreed a care package with Mr Y.
31. The mental health charity agreed to extend their support until 31 October 2018.
32. On 5 November, Mr Y began to receive his care package. The care and support agency visited Mr Y in December and carried out a review of his care and support in January 2019. The review report indicates that Mr Y and his sister, Mrs X are very happy with the support he receives.

Mrs X’s complaint

33. Mrs X first complained to the Council in September 2018. This was a month after she first had sight of Mr Y’s Assessment Report and Care and Support Plan. She had initially made comments to the Council about the Assessment and Plan but said she did not receive a detailed response from the Council.
34. Mrs X’s complaint focussed on the Council’s failure to recognise Mr Y’s inability to understand the assessment process. She believes that a capacity assessment should have identified this. She also thinks that the Council should have ensured that an independent advocate was in place before Mr Y was asked to make decisions about his emerging care and support plan. She did not accept that Mr Y’s support worker could act as an independent advocate.
35. The Council said that during the initial visits to Mr Y, it did not identify that Mr Y required a capacity assessment. Mrs X said that she raised concerns about Mr Y’s capacity in March 2018 but the Council did nothing about it until May. Mrs X said that in line with the Mental Capacity Act 2005, the Council should have carried out an assessment of Mr Y’s capacity as soon as she raised concerns.
36. In June, the Council carried out an assessment and agreed that Mr Y should be referred to an advocacy service. The Council recognised and apologised for the delay in allocating an advocate. It said that there was a shortage of suitable advocates.
37. Mrs X complained to the Local Government and Social Care Ombudsman in December.

An Update

38. In January 2019, the Council wrote to the LGSCO with an update. It followed this up with a letter to Mrs X.
39. The Council said in the last year, it has trained all Adult Social Care teams on Independent Care Act Advocacy and are now re-emphasising the need and rights of people to have an independent care advocate. It says that currently briefings are taking place to ensure that staff are aware of the system to request an advocate.
40. The Council also said that all staff have attended workshops led by the service manager for vulnerable people and the programme manager for the adult social care transformation programme. In these workshops, it was reiterated the importance that the care act gives to recognising when a person is in need of additional support.
41. The Council said in August 2019 there will be a new framework for all advocacy services which will include independent care act advocacy. It will be written into the contract that the awarding organisations have to provide advocates within allotted time frame.
42. The Council has said the details of how the number independent care act advocates will be increased will be somewhat left up to the organisations who bid. However, it said the Council expects the awarding organisation will develop the advocacy network by either sub-contracting to other organisations or by increasing the number of independent care act advocates that operate in the area.

Analysis

43. The Mental Capacity Act 2005 says that councils should assume that an individual has capacity to make their own decisions unless proved otherwise. The Council has said that during the early visits with Mr Y, he did not show any signs that he lacked capacity. Mrs X has said herself that her brother is adept at saying what people want to hear from him.
44. However, Mrs Y raised concerns about her brother’s capacity in March 2018. This should have triggered the Council to carry out an assessment. However, the Council did not refer Mr Y for an assessment until May 2018.
45. In response to Mrs X’s complaint, the Council has provided further training for its staff. This should ensure that staff are able to recognise when an individual is in need of additional support when making decisions.
46. The Council has acknowledged that the delay in appointing an advocate was unacceptable. It has put measures in place to ensure that in the future more advocates are available and are appointed within a set time period.
47. There was fault in the time the Council took to refer Mr Y for an assessment and then to appoint an advocate for Mr Y. However, any fault here, has not caused Mr Y a significant injustice. He received support from the mental health charity until his new care package began in November. Both Mr Y and Mrs X appear to be happy with the care package in place.
48. The Council has since improved its processes to ensure a better service is provided in the future.

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Final decision

49. I uphold Mrs X’s complaint. There was fault in the time it took the Council to assess Mr Y’s capacity and to appoint an advocate for Mr Y. However, any fault here, has not caused Mr Y a significant injustice.

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Parts of the complaint that I did not investigate

50. If Mrs X disputes the outcome of her brother’s assessment, I cannot investigate this. This is a matter for the Court of Protection to make a judgement about, not the Local Government and Social Care Ombudsman.

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Investigator's decision on behalf of the Ombudsman