Decision : Upheld
Decision date : 19 Mar 2020
The Ombudsman's final decision:
Summary: Ms J complains about how the Council has carried out a review of her sister’s care needs and her own carer’s assessment. The Ombudsman finds fault with record keeping, delays in identifying a need for a mental capacity assessment, and with progressing the needs identified in the carer’s assessment.
- The complainant, whom I shall refer to as Ms J, complains on behalf of her sister (Miss K). She complains about the way the Council has managed the review of Miss K’s care plan. Specifically that:
- The Council was trying to undo some of the care provided in its last assessment. It now says that was an interim assessment, but it did not say that at the time.
- She has had no respite since March 2018. This is largely because of the delay caused by a transition between teams. By the time Ms J could make a booking for respite, Miss K was refusing to go to the placement, due to the delay.
- The Council does not have a contingency plan in place.
- She has never received a finalised copy of a new care plan.
- The Council is only giving her an indicative budget. She got a ‘true’ budget figure after an earlier Ombudsman complaint. She would like the same again.
- Guidance says reviews should be over a four to six-week period. But none of Miss K’s reviews have ever taken that long.
- The advocate service the Council commissioned to assist Miss K refused for the advocate to meet her separately from the Council’s social worker. This meant Miss K did not see the advocate as an independent person.
- She has had two carer’s assessment. But these have not resulted in the Council offering any practical help. Council delay meant she missed attending a family christening.
What I have investigated
- I have investigated events from May 2018 which is the year before Ms J’s May 2019 complaint to us. Events after May 2019 are the subject of a separate complaint.
The Ombudsman’s role and powers
- 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)
- 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
- As part of the investigation, I have:
- considered the complaint and the documents provided by Ms J;
- made enquiries of the Council and considered its response;
- spoken to Ms J;
- sent my draft decision to Ms J and the Council and considered their responses.
What I found
Legal and administrative background
The Care Act
- The 2014 Care Act introduced a single framework for assessment and support planning. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. The Act says the assessment should also seek to promote independence and reduce dependency.
- While there is no defined timescale for completing the care and support planning process, councils should complete plans in a timely fashion, proportionate to the needs to be met.
- The Care Act allows councils to appoint independent advocates for assessments, planning and reviews.
- Where an individual provides, or intends to provide, care for another adult and it appears the carer may have needs for support, local authorities must carry out a carer’s assessment. Assessments must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
- A council can provide or arrange care services for a person who has eligible care needs. Or if the person prefers, they can have a cash payment (called a direct payment) so they can arrange their care independently.
Mental capacity assessment (MCA)
- One of the key principles of the 2005 Mental Capacity Act is that every adult has a right to make their own decisions and must be assumed to have capacity to make them unless it is proved otherwise. The Mental Capacity Act Code of Practice says it is important to start from an assumption of capacity.
- The Code of Practice says it is important to carry out a Mental Capacity Assessment “when a person’s capacity is in doubt”. A capacity assessment should be carried out in relation to the specific decision to be made and not because of a person’s illness, disability, age or behavior.
- Another key principle of the Act is that any act done for, or decision made, for a person who lacks capacity must be done, or made, in that person’s “best interests”.
- The Code says someone lacks capacity if they cannot do one or more of the following:
- understand information given to them about a particular decision;
- retain the information long enough to be able to make the decision;
- weigh up the information available to make the decision;
- communicate their decision.
- Miss K is in her 20s. She is diagnosed with autism, has a learning disability and is epileptic. She has sensory processing issues, can be fearful of crowds and suffers from poor balance and coordination. Miss K needs support with many aspects of her life.
- For the last few years Ms J, Miss K’s sister, has been her main carer, including managing direct payments. Until May 2018 Miss K was in full-time education. She was under the care of the Council’s Children and Young People’s Service 0-25 Together team.
Miss K’s transition between teams
- In April 2018 a social worker (Officer 1) from the 0-25 Together team emailed Ms J’s solicitors introducing herself and advising she would be completing a review of Miss K’s care and support plan and Ms J’s carer’s assessment. The solicitors’ response advised Miss K did not need to be present, as she would not understand the issues. Officer 1 advised she did need to review Miss K’s needs with her there.
- Officer 1 first met Miss K at her home on 16 May. Ms J was also present at this meeting. The Council provided information about the meetings in its later complaint responses. Ms J has also sent me an email from Officer 1 to her solicitors advising the meeting had gone well. But I have not seen any contemporaneous record of this meeting in the Council’s files.
- In June, Officer 1 met Ms J and her solicitor. Miss K was not at the meeting. Officer 1 then set up a short-term package of care, until the end of August; awaiting the outcome of Ms J’s appeal to end Miss K’s college placement. The care and support plan copies over notes from an earlier review. These say Miss K can find answering questions difficult, and note some anxieties and communication difficulties. It lists her disabilities and says she receives the highest award of the care part of disability living allowance. It notes Miss K was unable to consent to information sharing and that Ms J was acting on her behalf.
- In September, Officer 1 completed a review based on information gathered at the meetings. This was largely a continuation of the interim measures the Council put in place in June. It noted Miss K needed a new full assessment.
- Officer 1 met Miss K and Ms J on 5 November. The Council’s records say this was primarily about respite placements. After this, Officer 1 was in contact with solicitors who were working for Ms J and Miss K. Officer 1’s responses dealt with several issues:
- Ms J had asked that Officer 1 did not speak to Miss K about certain matters. Officer 1 advised she needed to speak to Miss K directly about issues relevant to the review.
- Issues around the support provided and the direct payments.
- The Council needed to arrange a meeting so Miss K’s care could transfer to its Adult Disabilities Service (ADS), as her 25th birthday was in February 2019. They would work together to draw up Miss K’s new care plan.
The mental capacity assessment
- Officer 2’s first task was to carry out a mental capacity assessment. In early 2019 she was in discussion with Ms J and the solicitors about this. The Council’s view was it was in Miss K’s best interests for an advocate to represent her at the capacity assessment. An advocate that had been involved earlier was not suitable, as she was advocating for Ms J.
- The organisation providing advocacy support:
- Advised Officer 2 that its advocates do not attend MCAs, but can support service users afterwards. So the Council agreed to link the MCA to the review to allow an advocate to attend.
- Has a policy that its advocates first need to meet service users with another professional. So the Council’s view was Officer 2 needed to accompany the advocate to the first meeting. Ms J raised concerns that this would mean Miss K would not see the advocate as an independent person.
- Did appoint an advocate in February. But when, after some chasing for dates, Officer 2 tried to visit, that advocate was ill. That was the start of spell of sick leave. The organisation then needed to appoint a new advocate.
The review of the care plan by the Adult Disability Service
- The Council says it needed to complete the MCA before it could review Miss K’s care and support plan. It did not start to offer Ms J dates to do this until after she had complained to the Ombudsman. The events related to that review are subject of a separate complaint.
The respite placement
- The Council was funding a respite placement of 12 nights a year for Miss K. This was a service the Council directly commissioned. The last time Miss K attended the placement was at the end of March 2018.
- The Council has sent me a record Ms J sent it, showing Miss K had, by the end of March, attended eight night’s respite in 2018. That same record also records the costs of a personal assistant going with Ms J and Miss K on trips away.
- The Council says it met Ms J in May, where it confirmed the respite placement. The June interim support plan has a note of Ms J’s request to increase the amount of respite. In August, the Council agreed to increase the funding for the respite placement to 16 days a year.
- Although it is not in the Council’s records, Ms J has sent me a 13 July email from Officer 1, responding to her solicitors, clarifying the respite placement was still active. This may have been in response to concerns Ms J says she raised with Officer 1, that the care provider would not let her book respite. Ms J says this is what a staff member at the provider had told her.
- The first note I can see in the Council’s files of Ms J raising concerns about the availability of respite is from August. The manager she spoke to then advised her to contact the Council and it would look at the respite placement and alternatives.
- In October Ms J’s solicitors advised the Council the placement was “no longer an option”. And they would like to try a different placement (at a location where Miss K attended a daycentre). Ms J says this was after Miss K had anxiety attacks when she was due to visit the respite placement in August.
- On 5 November Officer 1 met Miss K and Ms J to discuss the respite placement. On 13 November Officer 1 emailed the solicitors to advise she did not accept a breakdown of the respite placement was due to any fault by the Council. But she would assess the feasibility of the alternative placement Ms J had suggested.
- Later in November Officer 1 advised Ms J the mental capacity assessment would be relevant in considering Miss K’s wishes regarding the respite placement. Officer 1 noted the alternative placement had told the Council it had no availability at that time.
- In December Officer 1 advised Ms J that Miss K had not expressed unease at the original respite placement at their first meeting. They would revisit the issue as part of the mental capacity assessment and new care plan.
- In mid-December Officer 2 contacted the respite placement. It replied to advise it had not refused respite. Ms J was aware of how to book and knew the contract always “rolled over” and the year ran April to March. And it had not had any issues when Miss K stayed with it.
- In the early part of 2019 the Council ascertained:
- that the new respite provider Ms J wanted to use only had three beds available.
- The funding for the 16 days at the respite placement it was then funding, would only buy two night’s respite at Ms J’s preferred provider. It offered Ms J that option.
- Officer 1 reviewed Ms J’s carer’s assessment in April 2018. This was after communications with the solicitors, who advised Ms J’s view was Miss K’s care needs review was more of a priority than her carer’s assessment.
- The new plan notes:
- the extent of Ms J’s caring role was impacting on her physical, emotional, financial and social wellbeing.
- So she was eligible for care and support services.
- Ms J requested support for cleaning and gardening.
- An indicative budget of £75 a week.
- The Council would look into reducing Ms J’s caring role by reviewing Miss K’s care package.
- noted Ms J had asked about the outcome of her carer’s assessment.
- Said her focus had been on reducing caring responsibilities, which would allow Ms J time to manage the cleaning tasks.
- Noted Ms J was not in employment and that Miss K’s support package met more than her care needs.
The holiday request
- In April 2018 Ms J asked for funding to allow her, Miss K and a carer to attend a family christening in another European country. The June interim care plan has a note Officer 1 would make a request for a support package for holiday funding.
- In July Ms J gave the Council evidence it needed about the plan for the holiday. This included costs of several thousand pounds. The holiday was planned for mid-August.
- On 20 July, Officer 1 advised Ms J’s solicitors the Council would not be able to fund the holiday related expenses. The email noted the Council was not duty bound to provide the non-care elements of the trip – flights, accommodation, care hire, travel insurance – provided there were alternative means of maintaining family relationships. The Council’s view was those relationships could be maintained by telephone calls. So it would only contribute £500 towards the care costs of the holiday. Ms J sent me this email. It is not in the case file the Council sent me. The Council says the decision was made by a manager, which the Officer then relayed to Ms J.
- On 18 December 2018, Ms J’s solicitors sent the Council a letter of complaint. The Council responded in February 2019. Later Ms J complained to the Ombudsman. In response to my enquiries, the Council advised:
- “the Council acknowledges that an MCA should have been carried out at an earlier stage in the process of providing care and support, to ensure that Miss K’s wishes and views were appropriately represented throughout.”
- It noted a delay by the advocacy agency in appointing an advocate because of staff sickness and issues engaging with Ms J.
- The advocacy agency’s policy was that advocates first met service users with the social worker. That was only needed for the first, introductory, meeting.
- Ms J used the money allocated for respite to take Miss K away with her personal assistant for trips to the south-west.
- “[T]here remain considerable questions over how this care has been used and whether the services [Miss K] is receiving are offering her opportunities to learn and develop skills for independence, participate in work and develop meaningful relationships with her peers.”
- The Council would need to further assess Ms J’s claims about the unsuitability of the respite placement the Council had offered. It noted it had offered an alternative. Ms J’s suggested placement was considerably more expensive. Ms J could choose to use that provider. But the budget would fund a lot less respite stays.
Was there fault by the Council?
- My role is to decide if there has been any fault in the way the Council dealt with the issues under complaint. It is not to decide what Miss K’s care needs are, or what services she should receive. I must also consider if the Council offered Miss K support with her own involvement in the procedure.
- The year this complaint is considering can be split into three periods.
The interim care package
- From June 2018, the Council’s 0-25 Team put in place a temporary package of care. The records do note this package was interim, at first pending the outcome of an appeal and later to allow time for the Council to carry out a full review. That seems to me to be entirely appropriate, as the future then was unclear.
- I agree with Officer 1’s view that Miss K needed to attend meetings to review the care package. But the Council says Officer 1 had difficulty meeting Miss K. My view is this provides some explanation for the delay in moving on from the interim assessment.
The mental capacity assessment
- The Council records suggest it was after the November 2018 meeting that it began to consider whether Miss K had the mental capacity to manage her own care and support. It correctly notes it needed to start from a presumption of capacity.
- But my view is there was enough information recorded in the June interim plan (see paragraph 22) to raise a doubt about Miss K’s mental capacity around support planning. So the Council delayed turning its mind to the question of Miss K’s mental capacity – it did not start to arrange to assess Miss K’s mental capacity until the beginning of 2019.
- The lack of a contemporaneous record of the May 2018 meeting means I cannot confirm the Council’s view of what happened then – around, for example, mental capacity. It may well be that some of the information from the May meeting found its way into the June plan. But I would still have expected to see a discreet record of that meeting. My view is the lack of this record is fault, as are the lack of key emails in the Council’s records.
- Once the Council did start to try to carry out the MCA, it encountered difficulties with this: problems with arranging an advocate and Ms J’s concerns about the review and its effect on Miss K. Officer 2 also, rightly, wanted to have preliminary meetings with Miss K. Arranging an advocate was key to the reasons for the delay. I cannot say that was due to any fault by the Council.
- The decision that Miss K lacked capacity to manage her care package is not one that Ms J disagrees with. But she is concerned about the implication this has for Miss K’s future choices. Officer 2 asked Miss K questions around a range of issues in carrying out her assessment. While Ms J has concerns, I cannot see any fault that would lead me to question Officer 2’s professional judgment about the way she carried out the assessment.
- My view is the Council’s reasoning – that it could not carry out the review until it had assessed Miss K’s mental capacity to participate – was appropriate. But after that, the Council wanted to review Miss K’s care provision. The outcome of the review is the subject of a separate complaint. For this complaint, I can say the Council was entitled to want to review Miss K’s care provision. The September review was interim and Miss K care was transferring, as her time in education ended.
The advocate service the Council commissioned to assist Ms J has refused for the advocate to meet Miss K separately
- The advocacy agency was acting in line with its own policy. It is independent of the Council and not performing any function on its behalf. So its actions and policies are outside the Ombudsman’s jurisdiction.
The respite placements and the delay
- Ms J and the respite placement provider disagree about whether it refused Miss K a request for a respite stay. I can only seek to resolve this be considering the documentary evidence.
- In May and June Ms J’s solicitors were asking for an increase in the respite provision. In July Officer 1 confirmed the respite placement was still active.
- I cannot see any records that Ms J contacted the Council before August to raise concerns about the provider refusing respite. Ms J says she did raise the issue with Officer 1. But, even if that is the case, it was not the Council that refused respite. And I cannot resolve the differing accounts of when Ms J first brought this to the Council’s attention. So I cannot uphold this part of the complaint.
- Ms J is keen for Miss K to use a respite placement at a centre she uses for other purposes. The Council has agreed to this in principle (although there have been issues with whether that centre had a vacancy). But the Council notes this placement is considerably more expensive. So using it would provide Ms J and Miss K with less respite.
- The Council says it needed to review the respite arrangements, due to the significantly increased costs. That review is the subject of a separate investigation.
- It does seem the Council has not been clear that a personal assistant going away with Miss K and Ms J is not “respite”. The Council seems to accept this. But this is the subject of a separate investigation.
The Council does not have a contingency plan in place
- The Council considered this as part of its care and support plan review. So I have considered it in the other complaint.
Ms J has never received a finalised copy of a new care plan and an indicative budget
- During the time this complaint relates to, the Council was working to an interim care plan. Its view was the care and support arrangements in that plan were not serving Miss K well. It spent some time trying to carry out a review. Without completing the review, there was not a finalised care plan to send.
The carer’s assessment
- In April 2018 the Council decided Ms J had eligible needs, because of a risk to her physical and mental health and social isolation. It agreed to try to find support for gardening and deep cleaning. The Council could not find any community support, so Officer 1 sought funding.
- But there was then a delay moving this forward. I note the Council’s explanation for this – that it was prioritising reviewing Miss K’s needs, which Ms J agreed was a priority. My view is that does not provide a satisfactory reason why the Council seems to have made no progress on finding Ms J any support throughout the year this investigation has considered. I have also seen no records of any decision on the request for funded services Officer 1 advised Ms J she was making.
- It is not our role to question the merits of decisions, when properly made. The Council says the record of this decision would be the officer’s advice to Ms J. But this email is not in the Council’s record (Ms J sent it to us). That amounts to fault.
Did the fault cause an injustice?
- The faults around the MCA assessment did not cause Ms J or Miss K a significant injustice. That is because the delay in carrying it out led to Miss K receiving, for an extended period, the interim package of care. When later (the subject of the other complaint) the Council did complete its review, this led to it reducing the support it funded.
- The delay in finalising the care assessment and the lack of a record about the care assessment support and the holiday request funding, caused Ms J the injustice of the uncertainty of not knowing whether things might have been different, but for the fault. I do not have the evidence to go further than that, as I cannot say whether, on the balance of probability, Ms J and Miss K lost out on services because of the fault identified.
- Within a month of my final decision, in recognition of the delay in taking action around the carer’s assessment and the inadequate records, the Council has agreed to send Ms J an apology. And to send her £100 as a symbolic recognition of the uncertainty caused by the faults I have identified.
- I am not recommending any review of the carer’s assessment in this decision, as my understanding is, since these events, the Council has carried out a further review.
- I uphold the complaint. I have found fault with some parts of the events I have investigated. The Council has agreed to my recommendations, so I have completed my investigation.
Investigator's decision on behalf of the Ombudsman