Summary: There is no evidence of fault by the Council in the way it reached a decision about who would provide Ms Y’s social support. Therefore, the Ombudsman cannot challenge the merits of the decision. There is no evidence to suggest Ms Y was caused any anxiety or distress during assessments. An independent advocate was present at all meetings and reported Ms Y willing to engage.

The complaint

1. Mr X complains on behalf of his sister, Ms Y. Mr X has Lasting Power of Attorney (LPA) for Ms Y in relation to finance, property, health and welfare.
2. Mr X complains the Council has withdrawn the social and recreational element of Ms Y’s direct payment previously paid to him to support Ms Y, and commissioned a care agency to provide it.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. I have:

• considered the complaint and discussed it with Mr X;
• considered the correspondence between Mr X and the Council, including the Council’s response to the complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Mr X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

6. Everyone whose needs the local authority meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The detail of how the person will use their personal budget will be in the care and support plan. The personal budget must always be an amount enough to meet the person’s care and support needs.
7. There are three main ways in which a personal budget can be administered:

• as a managed account held by the local authority with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes;
• as a direct payment. (Care and Support Statutory Guidance 2014)

8. 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.
9. The Care and Support Statutory guidance states ‘The direct payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs.’ (Care and Support Statutory Guidance 2014, 12.)
10. 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.
11. 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.
12. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the court of protection might need to decide if a person has capacity to make the decision.

Background

13. During this investigation, the Council submitted some information under section 32(3) of the Local Government Act 1974. This prohibits the disclosure of information where it is considered contrary to either public interest or the privacy of an individual. This means I am unable to share this information with Mr X. I am also unable to go into any detail about it in this statement. I can give an overview of events and comment on the actions and decisions taken by the Council.
14. Mr X can be assured I have carefully considered all the issues he raised.
15. Ms Y is an adult and is described as having complex physical and learning disabilities, and is described as vulnerable. She needs support in all areas of daily living. She lives in supported housing. Day to day support is provided by an on-site care agency. At the time of the events complained about she received a direct payment to pay Mr X to provide her with twenty-five hours per week social and recreational support. He also escorted Ms Y to medical appointments.
16. Mr X managed Ms Y’s day to day and overall finances.
17. A social worker completed a needs assessment of Ms Y in July 2018. The social worker recorded the assessment had “been informed by family views and views from the care provider and independent advocate. [Ms Y] will always require an appropriate person to support her… [Ms Y] requires full support around decision making. If significant decisions become necessary, consideration will need to be given to [Ms Y’s] mental capacity… [Ms Y] would like to access the community more often and try new activities… [Ms Y’s] brother is responsible for supporting [Ms Y] to access the community… [Ms Y’s] brother is reported to be not providing the supporting hours for [Ms Y] to access the community… [Ms Y] would like to get out more often and try new activities”.
18. Mr X disagreed with the outcome of the assessment. He believed the assessment was biased, incorrect, and that the social worker was incompetent. He told the Council the assessment was factually inaccurate. He says the assessment did not accurately reflect the support he was providing to Ms Y.
19. A care and support plan completed in October 2018 recorded Ms Y wanted to get out more and try new activities, and that Mr X was responsible for responsible for supporting her with this.
20. In January 2019, further concerns were raised about Mr X not supporting Ms Y to access social/recreational and community activities. He failed consistently to keep records and evidence of the support he did provide. He also refused to sign in and out of the housing facility where Ms Y lives and concerns were raised that when he did sign in, the times did not match the times he was present. The Council says there is a long-standing issue of Mr X not signing in and out of the building.
21. In January 2019, a social worker visited Ms Y, along with an independent advocate known her, to undertake a capacity assessment to determine her capacity to manage her direct payments.
22. The records show Mr X and his wife refused the social worker and advocate access to Ms Y. Mr X accused the officers of attempting to save money and of acting illegally. He said he was exercising his LPA to refuse access to Ms Y. After consulting with senior officers, the social worker abandoned the visit. A referral to was made to safeguarding. A safeguarding investigation commenced.
23. The social worker and advocate visited Ms Y again. A mental capacity assessment was completed. The advocate recorded that Ms Y willingly engaged in the assessment process, and did not express any concerns, or display any sign of discomfort. Ms Y said Mr X visited her in the evening, and she wanted her direct payment to stay the same and she felt Mr X was central in her life.
24. The outcome of a mental capacity assessment concluded that although Ms Y expressed a preference for Mr X to continue to provide her support, she lacked understanding of other options. Ms Y was often reported to be bored during the day and had expressed a desire to participate in daytime activities.
25. Mr X believed the assessment was unnecessary as Ms Y’s capacity had been assessed by a Consultant Psychiatrist in December 2018.
26. During the safeguarding investigation, the social worker considered information Mr X provided about his visits to Ms Y. She compared the records to those of the agency, and records from the housing facility’s communication book. Two months of records were audited. On 19 occasions, the times Mr X recorded he was present to support Ms Y did not match the times recorded by on-site carers. On 13 occasions, there was no record of Mr X entering or leaving the housing facility.
27. A Best Interest decision was made to transfer Ms Y’s social support hours to a managed service. Ms Y’s advocate supported the decision.
28. The Council held a strategy meeting on 12 April 2019. Mr & Mrs X attended. Ms Y’s advocate was also present. I have seen the records of this meeting. Mr X was told about the inconsistencies between his records and those of the housing provider. Mr X denied the discrepancies. He cited a situation the previous year where a carer had been caught altering times on a log sheet. He said information provided by carers had been proved as unreliable. The Council said this had involved one carer only, and steps had been taken to prevent a reoccurrence.
29. Mr X says agency care staff altered entry/leaving times in the ‘book’ at the housing facility.
30. The Council told Mr X he would no longer be paid to provide social support hours for Ms Y, but he could continue to visit her as much as possible to maintain their relationship.
31. Mr X says Ms Y was anxious and distressed at the prospect of family support being removed. Both Mr & Mrs X strongly opposed the decision. Mr X said the money was his only source of income and if had to get a job then he would have much less involvement with Ms Y. Mrs X said she would challenge the decision through the court.
32. In May 2019, the Council reviewed Ms Y’s support plan. It allocated funding to the agency to provide Ms Y with 25 hours of 1-1 support per week for social/recreational activities and accessing the community. In addition, Ms Y has access to 21 hours shared support per week for communal activities.

Other matters subject to safeguarding

33. Between December 2018 and January 2019, there were three other safeguarding alerts/investigations. One from Mr Y about the quality of care provided by the care agency, and two from the care agency relating to Mr X.
34. The care agency raised concerns that Mr X was not supporting Ms Y to access a GP when it was suspected she had a urine infection, and that was undertaking personal care when he had been asked to refrain from doing so.
35. It also reported that Ms Y had suffered a scald to her arm due to a drink being overheated by carers. Mr X took Ms Y to the hospital for treatment.
36. Mr X contacted the Care Quality Commission to report concerns about the care provided to Ms Y. CQC told Mr X it would refer the matter to safeguarding. Mr X said he did not want that to happen at that stage. The concerns were referred to the Council and investigated under safeguarding.
37. I have seen the safeguarding documents from each of the above investigations. The Council investigated fully and met with Mr X, and the care agency. Mr X did not agree with all the outcomes. These matters had no bearing on Ms Y’s direct payments.

Analysis

38. It is not my role to determine who should provide Ms Y’s social and recreational support for Ms Y. My role is to determine if there is any fault by the Council in the way it reached this decision, and if it acted properly once concerns were raised.
39. In this case the Council responded appropriately to concerns raised about Ms Y’s social support. It instigated safeguarding procedures. It was right to do so. Council’s have a duty to formally investigate concerns involving a vulnerable person. The Council can only establish the facts through investigation.
40. During the safeguarding investigation, the Council considered information from all parties and considered evidence from the housing facility’s communication book. Mr X says the entries and have been altered by carers. I have seen no evidence which supports this. Any changes would be evident. Mr X did not always sign in and out of the building, despite being asked to do so. Because of this he is unable to evidence the support he provided. Mr X is at fault for this, not the Council. Had he done so; he may have been able to evidence the support he provided.
41. The Council held a safeguarding strategy meeting. It acted appropriately in assessing Ms Y’s capacity to manage her direct payments. Following this, it made a Best Interest decision to transfer Ms Y’s social support to a managed agency. Ms Y has not lost any support hours. She receives the support from a different source. There is no fault in the way the Council completed the safeguarding investigation, or the way in which it came to a decision about who should provide Ms Y’s social/recreational support. Therefore, I cannot question the merits (outcome) of this decision.
42. Mr X believed the Council’s assessment of Ms Y’s capacity to manage her direct payments was unnecessary. I do not agree. Any capacity assessment is time, issue and decision specific. Any previous assessment could not be used to determine Ms Y’s capacity about direct payments, or her social support. The Council acted properly in undertaking a formal assessment when it had doubts about Ms Y’s ability to manage her direct payments.
43. The Council acknowledges there was an error in Ms Y’s assessment about how she mobilises in her wheelchair. She uses her hands, not her feet. This was a minor error, which although needed correction, did not impact on the assessment, or the decision made about social support.
44. The second error Mr X complains about is the assessor’s recording of Ms Y’s capacity. Having considered this, I cannot agree with Mr X. The assessor did not record Ms Y lacked capacity, as Mr X alleges, she recorded Ms Y had some understanding but required full support with significant decisions. This was supported by an independent advocate.
45. Mr X’s disagreement with some of the content of the assessment does not make the overall outcome wrong.
46. I have seen no evidence which suggests Ms Y was caused anxiety or distress during the mental capacity assessment. An independent advocate was present at all meetings with Ms Y. The advocate reported no anxiety and that Ms Y was willing to engage.

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Final decision

47. There is no evidence of fault by the Council in the way it reached a decision about who should provide Ms Y’s social support. I am satisfied the decision was taken properly. This means the Ombudsman may not challenge the merits of the Council’s decision.
48. There is no evidence of fault by the Council in the way assessments were completed. There is no evidence to suggest Ms Y was caused any anxiety or distress.
49. It is on this basis; the complaint will be closed.

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Investigator's decision on behalf of the Ombudsman