Summary: Ms R says the Council is at fault for failures, including delay, in preparing a care plan for her son Mr C. She says this has caused both Mr C and herself injustice in that he still does not have a care plan nearly two years after asking for one. Ms C finds this stressful. Although the Council is right to say Mr C has not engaged with its officers, the Council is at fault for failures in the way in which it dealt with Mr C. It has also communicated inadequately with Ms R. The Council has agreed to pay Ms R and Mr C £400 in consideration of the distress caused and to write back to the Ombudsman with a progress report in three months.

The complaint

1. The complainant’s representative, who I have called Ms R, says the Council is at fault for failures around the care of the complainant, her adult son, Mr C. She says the Council is at fault for:
1. Delay in arranging and a continuing failure to arrange any assessments of Mr C’s needs;
2. A failure to provide any or any adequate care or support for either Mr C or herself since Mr C was obliged to return to live with her at home.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. 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)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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 spoke to Ms R who sent me various documents relating to her complaint. I wrote an enquiry letter to the Council and considered its response alongside the relevant law and guidance.
6. I sent my draft decision to Ms R and the Council and invited comments. I considered the comments received before writing my final draft.

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What I found

What should happen

Social care

7. The Care Act 2014 introduced a requirement for local authorities to promote ‘wellbeing’ and introduces the concept of ‘meeting needs’. The guidance to the Act says ‘The concept of meeting needs recognises that 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)

Needs assessment

8. A council must carry out an assessment of any adult who seems to need care and support. Having identified eligible needs through a needs assessment, the Council has a duty to meet those needs. (Care Act 2014, section 18)
9. The Care Act sets out examples of different ways a council can meet eligible needs. Examples include accommodation in a care home, care and support at home, counselling and social work, and information, advice and advocacy. (Care Act 2014, s 8)
10. If a council decides a person is eligible for care, it must prepare a care and support plan. This must set out the needs identified in the assessment. It must say whether, and to what extent, the needs meet the eligibility criteria. It must specify the needs the council intends to meet and how it intends to meet them. (Care Act 2014, ss 24 and 25)

Carers

11. 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 Mental Capacity Act 2005

12. The Mental Capacity Act 2005 is the law which governs whether people have the capacity to make decisions for themselves. The fundamental principle of the act is that, in the absence of good evidence to the contrary, all adults must be deemed to have the capacity to make decisions for themselves.

The Mental Health Act 1983

13. The Mental Health Act 1983 contains various powers for the treatment and care of people with diagnosed mental illnesses. S.37 and 38 allow those convicted of criminal offences and sentenced to prison to be held instead in a hospital.

What happened

14. Mr C is in his 20s and was, as a child, diagnosed with an autism spectrum disorder (ASD). He also has mental health and anger management problems. He has difficulties with language, executive function and in making decisions involving finance and safety while living independently.
15. As a young man, Mr C was assessed as being eligible for support in 2014 by the Council’s Younger Adults Support Team. He was found to have eligible needs to help him stay safe and to assist with control and employment.
16. He was frequently observed to be at risk due to association with people involved in drugs and was imprisoned after he fell into a pattern of criminal behaviour. He was later treated in hospital under s.37 and s.38 of the Mental Health Act 1983 on several occasions having been charged with various offences.
17. A 2014 support plan states that Mr C would not accept support from the younger adults team and was suspected of being involved with cannabis users. This has been a common theme.
18. In 2017, the Council arranged for Mr C to live in another council area to help him escape people who were leading him astray. The Council funded accommodation for him in a town about 20 miles away. He was allocated a weekly care budget of £670 to cover, among other things, gym membership and a cleaner.
19. After a period living in a different local authority area, Mr C was obliged to return to the Council’s area in mid-2018 due to a safeguarding concern and went to live with his mother, Ms R. At about the same time, he transitioned to the adult social care team.
20. Mr C originally had a social worker from the transition to adulthood team, Officer O. In August 2018, a new adult social worker with the complex and specialist mental health team, Officer P, took over his case.
21. In a statement presented to the Ombudsman, Officer P set out the actions she has taken to try to find Mr C suitable care. She says Mr C has refused many of her suggestions. She also records that, due to his fluctuating mental health, his views about what care and support he needs change.
22. In January 2019. Ms R complained to the Council about a lack of assistance in looking after Mr C. She said:
1. Mr C did not have a completed care assessment or support plan;
2. The Council had not provided support to enable him to access appropriate accommodation;
3. Ms R had received inadequate support, consideration and empathy.
23. In February 2019, the Council responded saying:
1. The Council had allocated an officer in its Transitions team, Officer O, to Mr C’s case on his return to the area. Officer O had completed a care assessment and a support plan shortly thereafter;
2. Officer O had tried to arrange supported accommodation for him in Ms R’s hometown and to help him register for housing support and with a GP. However, Mr C had refused to cooperate with these plans. The social worker also contacted the adult social care department to arrange a smooth transfer to the correct mental health team when Mr C turned 25 later in the year.
3. However, Mr C had refused a support worker and assistance with registering with a GP. He also declined support from the adult services mental health support team.
4. The Council accepted Officer O had not communicated adequately with Ms R or Mr C about the transition to the adult social services. It said it was in the process of introducing clearer protocols for transfer between teams.
24. Another officer began an overview assessment of Mr C’s situation in February 2019. Ms R said she did all Mr C’s cleaning at present. She said she wanted Mr C to move out. Mr C told the officer he wanted to move out and wanted mental health support. Ms R told the officer that, while she was Mr C’s appointee for financial matters including receipt of his Personal Independence Payment and Employment Support Allowance, she did not want to maintain this role either.
25. The officer said Mr C was hoping to be housed by the local borough council. He had made it clear he did not want to live in supported accommodation.
26. The officer found that Mr C required weekly, one-to-one support to help him with his social activities and personal relationships.
27. In March 2019, a senior manager in the transitions service team met Ms R to discuss Mr C’s case. Ms R said Officer O had not, in fact, completed an assessment or care plan. She had sent Ms R a draft but had failed to respond when Ms R had returned this to her with amendments.
28. Ms R also raised several concerns about Officer O’s professional behaviour. She also stated she had spent some of Mr C’s direct payments on activities and items for Mr C and requested retrospective authorisation for that expenditure.
29. The manager apologised for the standard or service Mr C had received. She said the Council had not followed procedures and had not handed over the case in a proper fashion. She said that Officer O had tried to support Mr C but ‘may have been out of her depth because of [Mr C’s] additional mental health needs’.
30. The Council wrote to Ms R again in early April 2019. It apologised again for the failures in the service provided to Mr C. It upheld her complaint that the care plan had never been completed, agreed that Officer O had acted inappropriately on occasion. It also agreed that the transition to adult social care had not been handled as well as it should have been.
31. The Council said:
• Mr C’s case would be transferred to the relevant mental health team;
• The Council would inform adult social care mental health and ask the relevant officer to speak to Ms R;
• Adult social care mental health would conduct a new needs assessment;
• The Council would continue to encourage Mr C to engage with housing and health services.
32. The Council also offered £200 each to Ms R and Mr C in recognition of its failures. It also approved Ms R’s expenditure from Mr C’s direct payments.
33. Shortly thereafter, Ms R wrote again to the Council requesting that it make reasonable adjustments for her and Mr C by presenting clear, concise records of all meetings and plans to both of them. The Council agreed to do this.
34. Emails sent to me by Ms R show that, to date, the Council has not provided a care plan. It has not done so, it says, because it cannot provide the plan until the care to be provided is in place. It says it continues to explore possibilities.
35. Ms R approached the Ombudsman in May 2019.

Was there fault causing injustice?

Delay

36. The Council accepted in March 2019 that it had been at fault for failures in its dealings with Mr C. It is now January 2020 and there is still no care plan.
37. The evidence shows Mr C has fluctuating moods which affect his views as to whether he wants assistance and, if so, what assistance he wants. Clearly, if Mr C, who must be deemed to have capacity in the absence of a medical assessment that he does not, refuses to accept assistance, the Council cannot be at fault for its failure to provide it.
38. However, neither can a council offer unpalatable alternatives and, when they are refused, merely state that there is nothing available and consider its duty done. Councils must meet eligible needs. Even accepting the difficulties in finding a suitable option for Mr C, the fact remains that there is no care plan in place nearly two years after he returned to live in the Council’s area.
39. Looking at the papers, I accept that Mr C’s attitude has certainly contributed to delay but I find, on balance, that the Council should have done more to try to find him a suitable care package.
40. I also find fault with the Council for its failure to provide a carer’s assessment for Ms R. Officer P stated in an email in December last year that Ms R had refused a carer’s assessment. Ms C denies that she did so. She merely said that she did not want to be offered a massage or similar as she had been before. She said she wants genuine help in coping with Mr C.
41. Ms R stated in March 2019 that she wanted Mr C to move out into his own place, that she did not want to deal with Mr C’s day-to-day care nor to deal with his finances and yet she has not been assessed.

Agreed action

42. The Council has agreed to write to Ms R and:
1. Apologise to her for the ongoing delay;
2. Offer her a carer’s assessment;
3. Pay Mr C and Ms R £400 each in recognition of time, trouble and distress.
43. Within three months, the Council should write to the Ombudsman setting out:
1. What steps it has taken to find Mr C suitable care;
2. What Mr C’s responses were;
3. What progress, if any, there has been;
4. Whether it has offered a carer’s assessment for Ms R;
5. Whether it has conducted a carer’s assessment and, if so, what care and/or support it has recommended and/or offered.

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Final decision

44. I have found the Council at fault. The Council has accepted my recommendations for a remedy. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman