Summary: Mr B complains on behalf of his son, Mr C, in connection with support he receives to meet his care needs. We uphold the complaint finding fault in a series of best interest decisions taken by the Council and in its actions following those decisions. There was also poor complaint handling by the Council. These faults caused injustice for Mr B and Mr C as a loss of service, distress, time and trouble. The Council accepts these findings and at the end of this statement we set out what action it has agreed to take to remedy this injustice.

The complaint

1. I have called the complainant ‘Mr B’. He complains on behalf of his son, ‘Mr C’, who receives support to meet care needs. I summarise Mr B’s complaint as follows:

• That in late 2016 and early 2017 the Council carried out a series of flawed mental capacity assessments for Mr C which led to flawed best interest decisions.
• One such decision took place at a meeting in March 2017. Mr B says the Council wrongly recorded action agreed at that meeting. It then failed to ensure that person centred care planning for Mr C progressed, despite this being agreed at the meeting.
• Another best interest decision meant Mr B could not pursue a complaint on behalf of Mr C about his then care provider. Nor could he obtain information from the care provider relevant to the complaint. At the same time, the Council did not support Mr C to make a complaint without Mr B acting as his representative.
• That the Council’s communications and handling of Mr B’s complaints about these matters has been poor.

2. Mr B says as a result Mr C did not receive adequate support from the Council to ensure proper care planning. Nor could Mr C pursue a complaint against a care provider or obtain information relevant to that complaint.

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The Ombudsman’s role and powers

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. 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)
5. 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)
6. 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

7. Before issuing this decision statement I considered:

• Mr B’s written complaint to the Ombudsman and supporting information he provided; including that obtained in a telephone conversation with him;
• complaint correspondence exchanged between Mr B and the Council which pre-dated this investigation;
• further information provided by the Council in reply to our written enquiries;
• relevant law and guidance referred to below;
• comments received from Mr B and the Council in response to a draft decision statement setting out my proposed findings.

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What I found

Key legal and administrative considerations

Mental Capacity

8. The Mental Capacity Act 2005 and associated Code of Practice (2007) describe 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.
9. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:

• because he or she makes an unwise decision;
• based simply on their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

10. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision. This is because an assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out:

• does the person have a general understanding of what decision they need to make and why they need to make it?
• does the person have a general understanding of the likely effects of making, or not making, this decision?
• is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• can the person communicate their decision?

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.

Care Planning

12. 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. They must provide an assessment to all people regardless of their finances. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
13. The Care and Support (Eligibility Criteria) Regulations 2014 set out the eligibility threshold for adults with care and support needs. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. To have needs which are eligible for support, the following must apply:

• First, the needs must arise from or be related to a physical or mental impairment or illness.
• Second, because of the needs, the adult must be unable to achieve two or more of the following:
• managing and maintaining nutrition;
• maintaining personal hygiene;
• managing toilet needs;
• being appropriately clothed;
• being able to make use of the adult’s home safely;
• maintaining a habitable home environment;
• developing and maintaining family or other personal relationships;
• accessing and engaging in work, training, education or volunteering;
• making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
• carrying out any caring responsibilities the adult has for a child.
• Third, because of not achieving these outcomes, there is likely to be a significant impact on the adult’s well-being.

14. Where local authorities have determined that a person has eligible needs, they must meet these needs. They can provide services directly or give a direct payment to the person needing services so that they (or a representative) can commission their care directly.
15. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan. This should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. 
16. The Care and Support Statutory Guidance in support of the Care Act 2014 includes four chapters on ‘person centred care and support planning’. The guidance says “care and support should put people in control of their care, with the support that they need to enhance their wellbeing and improve their connections to family, friends and community […] the person must be genuinely involved and influential throughout the planning process, and should be given every opportunity to take joint ownership of the development of the plan”.
17. It also says: “Some people will need assistance to make plans and decisions, and to be involved in the planning process. The modern care and support system should routinely enable supported decision making, where options and choices are presented simply and clearly. Independent advocates (if used) must be instructed early in the assessment and planning process for those who have substantial difficulty in engaging with the care system […] the guiding principle in the development of the plan is that this process should be person-centred and person-led, in order to meet the needs and achieve the outcomes of the person in ways that work best for them as an individual or as part of a family.”

Key facts

18. Mr C is a single adult in his thirties. He has an acquired brain injury as a result of an accident over 10 years ago. A Care Act assessment completed in 2017 identified that this caused a “profound change in his ability to organise, plan, initiate and motivate and time manage himself, thus reducing his functional abilities for which he requires day to day practical support and supervision for safety”.
19. In 2012 it was assessed Mr C did not have capacity to manage his finances. During events covered by this complaint they were managed by a Court-appointed Deputy, who was a solicitor.
20. I have taken the beginning of the events covered by this complaint as November 2016. At the time Mr C received 70 hours support a week from a private care provider.
21. During most of the events covered by this complaint the Council had wrongly identified that Mr C was ‘self-funding’ his care. The Council should have been paying for his social care needs subject to any financial contribution it might assess Mr C as paying towards that. During the events covered by this complaint the Council realised its error and it has refunded Mr C some of the money he paid for his care. The Council’s failure to identify its mistake sooner is not part of the complaint, but I consider it forms part of the background to it.
22. This complaint focuses instead on three mental capacity assessments (MCAs), associated best interest decisions and events following those assessments undertaken between late 2016 and early 2017. I will set out the facts relevant to each in turn, in the order in which the Council decisions were taken. I will then briefly describe the course of Mr B’s complaint before setting out my proposed findings.

The first MCA and best interest decision around Mr C’s care choices and planning

23. In November 2016 the Council assessed if Mr C could make decisions around his own care needs. Around the same time the Council began an assessment of Mr C’s care needs under the Care Act 2014. A social worker I will call ‘Officer X’ had responsibility for managing Mr C’s case at this time and carried out the MCA, best interest decision making and care assessment referred to below.
24. The Care Act assessment noted that Mr C recognised he needed support with day to day living but that he wanted to be “supported and surrounded by people he can identify with […] with similar interests”. The assessment identified Mr C received support from a care provider with matters such as housework, shopping, cooking and personal administration of letters and so on. But he wanted to change care provider as he wanted “more choice and control” over who supported him. He wanted more flexibility over when he should carry out certain tasks; for example, shopping.
25. The assessment recorded the views of Mr C’s care provider. They implied that they thought Mr C needed more support than he recognised and benefitted from regular routines.
26. During both the Care Act assessment and the MCA Mr C received support from an advocate. The advocate questioned what assessments Mr C had previously received of his capacity to make choices around his care.
27. The assessment found Mr C had a need for care and support. It found he had a need for support to:

• establish and maintain routine in accessing the community;
• to manage his finances;
• maintain a routine and structure in running his home;
• eat at mealtimes and to prepare/cook meals;
• maintain some personal care tasks;
• maintain a safe home through managing risk around inviting friends/acquaintances back to his home.

28. The Council also produced a care and support plan which mirrored the Care Act assessment summarised above. It did not specify detail such as who would meet Mr C’s needs or how and when they would meet those needs.
29. The MCA cross-referenced Mr C’s wish to have more control over his care as it set out to consider if he had capacity to make decisions around his care. The MCA recorded Mr C showing insight into his care needs; for example, he explained why he needed support with prompting to eat food and cooking. It said he had capacity “to make decisions regarding his care needs in the longer term and how he would like these carried out”.
30. However, the MCA found Mr C could not always weigh risks involved in not meeting certain needs. For example, support he may need in being safe in the community.
31. In March 2017, in response to a request made by Mr B, the Council convened l a best interest meeting to decide how Mr C’s care needs should be met moving forward. There is no specific minute of the meeting but there is a record of the decision which refers to it. The Council says Officer X’s line manager counter-signed this record in early May, around six weeks after the best interest meeting took place.
32. The record of the decision highlights that Mr C wanted more control over who provided his care. Mr B supported him in that as did his advocate while other family members suggested other care options for Mr C should be explored. The then care provider, Mr C’s financial deputy and a medical professional all considered Mr C's existing care plan adequate. They stressed their views that Mr C needed routine.
33. The decision records that Mr C’s care provider would continue to support him, but that an external agency would carry out person centred care planning. It said “the plan will be the starting point for [Mr C’s] future support structure”. It would aim to take account of the views of “all relevant parties”.
34. The decision recorded three action points. That:

• Mr C’s financial deputy would complete a referral for person centred planning to be completed by the advocacy service supporting Mr C;
• Mr C’s existing advocate would support Mr C until another advocate was allocated to the case;
• the existing care provider would continue to meet Mr C’s needs in the interim.

35. Mr B disputes this record as accurate. In particular, he says it was never agreed at the meeting that another advocate would undertake person centred planning with Mr C. Neither the best interest decision nor any other record I have seen explain why another advocate needed to support Mr C. Mr B says this suggestion was made later by his Deputy. I note there is a reference on the case notes to the Deputy sending an email to Officer X in late April 2017, but this is not on Mr C’s case notes. I also note that later emails sent by Mr B relevant to this subject are not included on Mr C’s case notes either.
36. In April 2017, the Council learnt that Mr C’s care provider was withdrawing support. The following month it agreed that Mr C would have an interim care manager until the person centred care planning completed. By the end of June 2017, the care provider had withdrawn from Mr C’s care, although one support worker to work with him. Mr B has described to me Mr C experiencing something of a mental health crisis around this time and this appears supported by the Council’s case notes.
37. It was not until late May 2017 the Council sent its record of the decisions taken at the best interest meeting to Mr B and other interested parties. In June 2017, in reply to an email, the Council was told by Mr C’s Deputy he had begun the referral for personal care planning.
38. Around this time Officer X indicated he would be handing over the case. Mr B expressed concern at the record he had received of the best interests decision. Another social worker, Officer Y, took over case management of Mr C’s case in July 2017. Although I noted Officer X continued to correspond on the case file for several more weeks. Officer X spoke to Mr C’s Deputy again in August 2017. The Deputy implied there was some disagreement among family members about using the same advocate to carry out person centred planning.
39. In August 2017, Officer Y asked the Deputy for more information on the person centred planning for Mr C. I saw no record of a reply. In October she recorded contact from the advocacy service saying it was waiting for details from the Deputy about funding for the work. Officer Y also noted a disagreement between family members about whether Mr C’s existing advocate should carry out the care planning.
40. By October 2017 Mr C’s family had appointed a new care supervisor who would help him in recruiting new support workers.
41. In November 2017 Officer Y met with Mr C and discussed the person centred care planning with him. They recorded speaking to Mr C about using his existing advocate or a different advocate. They recorded him wanting to work with a new advocate. Officer Y advised Mr C’s Deputy accordingly.
42. By January 2018 Mr C had a new advocate and they had begun their work. The advocate wrote to the Council saying: “I am really concerned the PCP process is not understood and is being used inappropriately in this case as a mechanism to try and resolve issues between [Mr C], his parents, case manager [i.e. his care supervisor] and Deputy rather than a tool to capture [Mr C’s] views, wishes and aspirations and plan for achieving these”. The advocate said her manager had suspended work “until we have determined if this is a useful and helpful process for [Mr C]”.
43. There are no records on Mr C’s case notes of actions being taken by Officer Y to progress his personal care planning between January and June 2018. There is a note dated December 2017 which indicates by now the Council realised it should be funding Mr C’s care. Mr B also detailed in his complaint his understanding that in March 2018 Officer Y met with Mr C and his care supervisor. Mr B also describes arranging a meeting with Officer Y in March 2018 but that she cancelled that. He sent her an email in April 2018 noting it was now over 12 months since the best interest meeting decided Mr C would benefit from person centred planning.
44. In July 2018 Officer Y recorded speaking to Mr C’s care manager and that she would make further enquiries about the person centred planning. She recorded the note that “I did explain the work was not completed due to a lack of engagement from [Mr C] and obstruction from family”. Officer Y provided no reasons for this statement in their notes and the Council cannot locate any other records or correspondence to explain this statement. Mr B has sent me emails he exchanged with the advocate which are courteous and do not indicate any obstruction on his part or any tension between the two.
45. In August 2018, the advocacy service told the Council they encountered obstruction from Mr C’s care supervisor. The Council recorded the care supervisor was resigning from their position.
46. In October 2018 Officer Y reviewed Mr C’s care and support plan. They invited comments from Mr B. He replied that he wanted to know more about how the review was structured and how it was being carried out, envisaging a round-table meeting. I cannot locate a reply from the Council. But it is evident from further emails Mr B sent in November 2018 that he did not understand the work being undertaken by the Council and did not appreciate it had now accepted responsibility for arranging Mr C’s care and support. I note around this time Mr B had begun his complaint (see below).
47. The Council’s review of Mr C’s care needs identified he no longer needed support with personal care. It proposed a reduction in the support he received from support workers from around 32 hours a week to 17½ hours. There is no record the Council carried out any further assessment of Mr C’s capacity to consent to changes in his care arrangements.
48. The Council says that after Officer Y completed the review Mr C’s case was not on a an “active caseload” until January 2020 when it next reviewed his needs. I have not considered that review as part of my investigation.

The second MCA & best interest decision concerning Mr C’s complaint about his care provider

49. In March 2017 Officer X, on behalf of the Council, assessed if Mr C could make a decision to complain about his then care provider. They wrongly dated this assessment as taking place in November 2016. Mr C received support from his advocate during the assessment.
50. The MCA provided Mr C’s reasons for wanting to complain which cross-reference the assessment of his care needs I described above. Officer X described Mr C giving “a detailed account of aspects of his care he is not happy with”. He wanted support from individuals whom he could better identify with. The assessment recorded Mr C “showed insight into how his care needs are currently met”. Officer X said “[Mr C] was able to explain that he feels his views on his needs are not listened to and that his views and outlook on life are not acknowledged”. Mr C said that by complaining he hoped to gain more control over his care and support team. He also wanted the care provider to reimburse him for times when he considered he had not received adequate support.
51. Officer X said that Mr C was unsure about how the complaint procedure worked and would need support in this. Mr C said he wanted Mr B to support him in making a complaint. Mr B has explained to me the concerns he had with Mr C’s care provider, believing they could have provided him with more effective care. He has also provided me contemporaneous documents he produced in 2016 setting out his concerns in detail.
52. The assessment found that Mr C could not weigh or use information provided by Officer X. The assessment recorded Mr C was “unable to consider the implications to himself and others” of making a complaint. The assessment said he could not consider the impact on support workers of asking for a reimbursement of fees and “that they have been paid for the work they have carried out”. Officer X also considered Mr C could not understand the process he would need to follow in order to complain.
53. Consequently the assessment found Mr C did not have capacity to complain but recommended he be supported to do so.
54. The Council went on to record a best interest decision. It said Mr C could complain “should he wish to, with appropriate support in place”. It said “this should be in the form of an advocate or his person centred plan worker” who would take account of the views of family members. It said that Mr C should be told about the complaint procedure as it progressed “as well as any potential outcomes to complaining”.
55. Neither the MCA or the best interest decision record why Mr B was not considered a suitable person to support Mr C in making a complaint.
56. In June 2017 Officer X sent an email to Mr B saying if Mr C wanted to complain “he could be supported to do so, by an advocate or a similar professional and that support could be drawn from his family also. It would be [Mr B’s] decision to initiate again any complaint process with the relevant parties”.
57. In July 2017, Officer X sent a further email to Mr B which said that Mr C could receive support in making his complaint “if that is what [he] requests”.
58. In August 2017 Officer Y met with Mr C for the first time. She recorded his dissatisfaction with his former care provider.
59. Mr C did not pursue a complaint against the care provider. When Mr B had earlier tried to make a complaint (2016) the care provider had refused to reply, saying Mr C did not have capacity to make a complaint or consent for Mr B to do so. We upheld the Care Provider’s response when Mr B made a complaint to this office. We did not at that time investigate the Council’s best interest decision but recognised it appeared to provide support for the Care Provider’s position.

The third MCA & best interest decision about access to Mr C’s care records

60. Also in March 2017 the Council assessed if Mr C could make a decision to share information about his care needs “with his family/other people”. Officer X carried out the assessment.
61. The assessment recorded Mr C being aware that both the Council and care provider stored information about him. It recorded that Mr C “was able to identify that his family may need to see the information to be informed about his care, however his friends would not necessarily need to see this information”. Mr C expressed concern that his care provider was not sharing information with his family.
62. Mr C indicated he would not want third parties outside his family seeing personal information although Officer X considered he could not “fully weigh the consequences” of what third parties might do with such information. In other words, he did not fully understand the risks of information being shared. The assessment found therefore that Mr C would “require support from family/support workers to manage his personal documents/information”.
63. The best interest decision recorded the context for the MCA as being that Mr B had been denied information about Mr C by his care provider. Elsewhere it recorded that Mr B felt it would be in Mr C’s best interests for the care provider’s information (care assessments and so on) to be shared with the family. The Council said it had advised Mr B to make a complaint to the care provider.
64. The best interest decision was that Mr C’s “family and other professionals/relevant parties can access information such as Care Act assessments and mental capacity assessments and support [Mr C] when sharing these with others also when storing personal information”.

Mr B’s complaint

65. In August 2018 Mr B made a complaint to the Council. I have not seen a copy of this but we do hold a copy of correspondence from Mr B dated February 2019. In this, Mr B set out the background to his complaint, referring to the events described above. He set out his dissatisfaction with the various MCA and best interest decisions in the way I have sought to summarise above. He set out his dissatisfaction with the service he had received from Officers X and Y. He summarised his complaint in 13 points saying the Council had failed to:

• ensure that its employees paid due attention to key principles of openness and accountability – for example, Mr C’s referred to his view the minutes of the first best interest meeting were inaccurate;
• ensure its social workers had sufficient ability and experience to produce valid best interest decisions;
• ensure a level of verbal communication skills suitable to the serious matters to be communicated;
• ensure appropriate standards of written work;
• provide effective supervision to maintain acceptable standards as indicated above;
• respond to legitimate and reasonable concerns expressed in the form of direct written questions;
• provide written responses to serious issues, as requested;
• provide contact information for, or arrange meetings with, appropriate supervisors/senior officers when requested to do so;
• provide accurate or complete information; meaning they had given a misleading impression of events;
• reply at all on occasion, except for ‘out of office” responses;
• respond to an email highlighting a number of serious issues; despite receiving a commitment from a senior officer to do so;
• to ensure the implementation of best interest recommendations;
• to prevent unwarranted and unjustified intervention in the implementation of best interest recommendations causing delay in implementation and eventual abandonment of those recommendations.

66. The Council chose to re-summarise these headings of complaint into six areas covering:

• openness and accountability;
• quality of best interest decisions and the implementation of recommendations;
• its verbal and written communications;
• the quality of its written work;
• the quality of its supervision of officers;
• whether it had provided inaccurate or incomplete information.

67. Internal emails provided by the Council show there was lengthy discussion about which service area would respond to Mr B’s complaint. This was because of uncertainty around line management arrangements for Officer X during the time he worked on Mr C’s case. The Council did not reply to Mr B’s complaint until March 2019. Before writing to Mr B, a senior officer met with him (in February 2019). I summarise the Council’s response to the complaint as follows:

• in the section on openness and accountability the Council considered the circumstances around the meeting cancelled between Mr B and Officer Y; it defended in general terms the social work practice of Officers X and Y;
• that it was satisfied with its best interest decision making believing it to be of a high standard;
• that it accepted it had sometimes delayed in replying to emails from Mr B;
• that it considered Officers X and Y produced work of high standard;
• that they were also adequately supervised;
• that it did not consider it had sent inaccurate or misleading information.

68. Mr B requested a review of this response in April 2019. He expressed his dissatisfaction with how the Council had investigated the complaint including its summary. Mr B explained again his dissatisfaction with specific aspects of the customer service he received; the record of the first best interest decision and the quality of the MCAs.
69. The Council replied later that month, saying that it had carried out a reasonable investigation into Mr B’s concerns and directed him to this office if he remained dissatisfied. Mr B complained to us in August 2019.

My findings

On the Ombudsman’s jurisdiction

70. I note some of the events covered by this complaint occurred significantly more than 12 months before Mr B complained to us. This means Mr B’s complaint is late. However, I have decided there are special reasons that justify our investigation of the complaint despite this passage of time.
71. I note from case records that Mr B clearly expressed his concerns about the Council’s decision making, both in respect of its assessment of Mr C’s mental capacity and his best interests, within 12 months of those assessments. I am further satisfied he did not let his concerns about these matters drop. Also, that he remained actively involved in working with the Council’s adult care service as the case evolved. I find it sensible to consider Mr B’s complaint as therefore encompassing a series of events from late 2016 to the point he complained in early 2019.
72. I am also satisfied the Council has sufficient records that we can come to a view on the matters set out above.

On the first MCA, best interest decision and subsequent actions relevant to that

73. I make no criticism of the MCA. It appears a balanced document. Clearly the Council recognised and recorded Mr C’s wish to have different carers support him. But it also recognised that Mr C faced risks if without care and did not find he fully understood these. I see no reason to fault the judgments expressed in the assessment.
74. The consequent best interest decision flowed from this assessment and it would appear uncontroversial that it resolved to arrange person centred planning for Mr C. There was no dissent from Mr B to that. It was something he wanted to take place. I find the best interest decision sought to ensure Mr C continued to receive care while also looking to ensure he had more say about who delivered that care and how in the future.
75. But the decision making record was flawed in two regards:

• First, the Council left the initiative for commissioning the person centred care planning to Mr C’s Deputy. I assume this arose from the misunderstanding at the time that Mr C self-funded his care. But it was still fault for the Council not to recognise that it had a responsibility here.
• Second, the record provides no explanation for why Mr C’s then advocate, with whom he had clearly established a working relationship could not carry out the person centred planning. I cannot understand why this was, especially as the decision identified the advocate’s agency as being suitable to carry out the planning. The omission understandably gives rise to Mr B’s speculation the Council only added this action point after the meeting under pressure from a third party, such as Mr C’s Deputy. While I lack evidence to reach this conclusion, I find it unsatisfactory there is no reason for this action point. I also note the delay in the Council sending the action points to Mr B and its failure to provide him with minutes sooner despite his requests. I also note here both the missing email on Mr C’s case notes from his Deputy, which may be relevant to the decision, along with other emails sent by Mr B relevant to this matter. This lack of a satisfactory audit trail for the decision to appoint a different advocate to carry out person centred planning was a fault.

76. I consider the consequence of the first fault was an avoidable delay in the person centred care being commissioned. It is evident from the chronology of events set out above that no work began on the care planning until around January 2018. That was over nine months after all parties agreed it was in Mr C’s interests that this work begin. I note in the meantime Mr C was able to progress his wish to have a new care support team put in place with a new care supervisor arranged by his family. But even so, person centred care plans would have helped Mr C feel at the heart of decisions around his care and could have assisted his new care supervisor and support workers. The delay adds to an impression of a chaotic period of care for Mr C at a time of crisis for him.
77. I do not find the second fault would automatically cause any negative consequence on Mr C, if a suitably qualified advocate carried out the care planning. I also note that in November 2017 Mr C expressed a willingness to have a different advocate. Although I do note a concern expressed by Mr B that he was not supported in making that decision and also it is not clear why any such meeting was necessary if the matter had already been decided in March. But any confusion here is secondary to the delay I have described in paragraph 76.
78. Turning to events after March 2017, the Council clearly became aware, by July 2017 at the latest, that Mr C’s care planning was making slow progress. Further this was against a backdrop where his support was changing and he was experiencing some crisis. Yet I find the Council put little urgency in pursuing with Mr C’s Deputy why the care planning had stalled. Nor did it take over the responsibility to arrange this. That was further fault.
79. The fault continued as time progressed. By January 2018 the Council knew person centred care planning for Mr C had stopped entirely. Yet it did not intervene to try and re-start the process or gain a better understanding of why through speaking to the advocacy service, Mr B and other interested parties. I cannot see it did anything to encourage a process it had agreed was in Mr C’s best interests in March 2017. And by this time the Council knew it also had to pay for Mr C’s care also, which should have spurred it to take responsibility to ensure the proper person centred planning took place.
80. While the Council finally made some enquiries in summer 2018 to establish why the person centred planning broke down these were inadequate. It also appears, to all practical purposes, to have abandoned the idea that Mr C needed such planning around this time. The reasons for this are not recorded. It also not recorded, why by Autumn 2018 the Council believed Mr C had capacity to engage in a review of his care plan when the Council had previously believed he could not take short term decisions around his care. Nor why it decided Mr C did not need an advocate present while deciding this. All this too should have been recorded. Overall, I find the Council’s records during Officer Y’s supervision of Mr C’s case inadequate, with lengthy gaps on the file and statements also appearing without explanation for the source. All of the above, justifies a further finding of fault.
81. In considering the injustice that arises from the faults described in paragraphs 78 to 80 I note that Mr C did not go without care. I also note the changing pattern of his care between March 2017 and October 2018. I find the care provider Mr C wanted to complain about withdrew from his care soon after. There was also a gradual reduction in his hours of care. All of this was driven by Mr C’s family and suggests he was involved in decisions and this has helped him achieve a greater level of independence. I find these changes will have gone some way to bringing the benefits that person centred planning might have achieved. This is not to say there would not still have been benefits to the person centred planning completing. But the benefits it could have bought would be less because of these changes which took place notwithstanding the Council’s faults.
82. I note Mr B’s view that person centred planning may have helped Mr C avoid the crisis he went through around June 2017. But I am not persuaded by this. First, while I think it possible person centred planning could have commenced by this date I am uncertain it could have completed. But second, I do not find grounds to link Mr C’s dissatisfaction with his then existing care arrangements with his mental health crisis. Noting that in any event by the time the crisis occurred, Mr C’s care arrangements were changing.
83. However, while the factors set out in paragraph 81 and 82 mitigate some of Mr C’s injustice, they do not extinguish it. The Council faults raised expectations that a person centred care planning process, externally supervised, would complete. This in itself is a form of injustice. While I cannot say the Council was responsible for the collapse of the care planning it did not do anything to encourage its completion. Nor explain why it no longer considered it necessary to complete. It also seems to have lost focus on Mr C’s needs in its consideration of this matter which causes further injustice as distress, in the form of outrage. I also find Mr B expended unnecessary time and trouble seeking the Council’s engagement in this matter.
84. It was also further fault for the Council not to properly engage with Mr B’s communications sent in October 2018 around its review of Mr C’s care. This added to his frustration, time and trouble and the Council missed the opportunity to clarify how it proposed carrying out care planning for Mr C moving forward and funding his care.

On the second MCA and best interest decision on Mr C pursuing a complaint against his care provider

85. I have some concerns about the MCA conducted in March 2017 to see whether Mr C had capacity to complain about his care provider. It was clearly recorded what Mr C wanted to complain about and why. It was also clearly recorded what he hoped to achieve by complaining. I consider it logical that if someone complains about the care they have received they may want to secure a change in that care provision and some refund for the poor service they receive.
86. I query therefore the weight the Council put on Mr C’s limited understanding of process and his ability to weigh up the implications of making a complaint on his care provider. This puts an unnecessary high bar on the level of understanding anyone may require to make a complaint.
87. However, the MCA clearly did not dismiss Mr C’s right to complain. And its conclusion that he would need support to do so appears reasonable on all the facts. The fault here therefore lay in the best interest decision.
88. First, because it is fundamentally confused by the statement that Mr C could pursue a complaint “should he wish to”. The Council already knew he wanted to. This appears to have had the effect of putting a hurdle in Mr C’s way in pursuing his complaint. As it is not explained why he now needed to re-articulate his complaint having already done so.
89. Second, because the decision provides no reasons for why Mr C could not be supported in making his complaint by his preferred representative, Mr B. Mr C clearly expressed the view that he wanted Mr B to support him making his complaint. But the best interest decision makes no reference to Mr C’s wishes and why the Council did not support them. There is also no reference anywhere in the case record as to why Mr B would not be suitable to pursue a complaint.
90. Third, the best interest decision provided no alternative mechanism for how Mr C could pursue his complaint. Did the Council now propose to take the initiative? Was it expecting Mr C’s advocate to? The best interest decision simply left this matter hanging.
91. The one person who clearly stood up for Mr C’s continuing wish to complain was Mr B. But he could not take forward the complaint in the face of a best interest decision which did not endorse him doing so.
92. I consider Mr B’s subsequent communications with the Council should have had the effect of spurring it into ensuring some action was taken to progress Mr C’s wish to complain. But the replies he received in June and July 2017 were inadequate. The Council implied that either Mr B had to begin a complaint, something incompatible with its earlier best interest decision. Or Mr C had to indicate again he wanted to complain when it had already clearly recorded his wish to do so months previously. These positions were both contradictory and confusing. They took Mr C no further forward in wanting to pursue his complaint against his former care agency. So, these responses also justify a finding of fault.
93. Then, when Mr C met with Officer Y in August 2017 she recorded him still being dissatisfied with the service received from the care provider. But no steps were taken to support Mr C in pursuing his complaint. Indeed, following case transfer the matter seems forgotten about on Mr C’s case record. This too was fault.
94. I find the injustice caused to Mr C by these faults was one of a missed opportunity. The Council knew he wanted to complain and said he could complain with appropriate support. Yet it did not put in place that support even when contacted by Mr B. Those contacts should have reminded the Council of the need to progress this matter.
95. The injustice caused to Mr B was one of further frustration, time and trouble in being unable to support Mr C in making his complaint. It also caused distress to Mr B that the Council’s decision frustrated his attempts to make a complaint with Mr C’s care provider. It had refused to engage in correspondence with Mr B about the service it provided to his son and the best interest decision appeared to support its stance. I consider a further injustice is that both Mr B and Mr C may no longer be able to effectively pursue such a complaint given the passage of time.

On the third MCA and best interest decision

96. I consider this assessment and decision were fundamentally flawed as they were not decision specific. Both the assessment and best interest decision approached the issue of Mr C sharing personal information in a general way. I make no criticism of a line of questioning that set out to gain Mr C’s understanding of what care records were stored about him and who by. Nor that which explored his understanding of what personal information contained in care documents he would want shared with family, friends or others.
97. But the decision making failed to address the specific context in which the MCA took place. This is explained in the best interest decision paperwork. That Mr B had been wanting Mr C’s care provider to share their records. I understand this was in order to help him make a complaint on Mr C’s behalf and because of his concerns for his son’s care. This was the specific question the Council failed to address itself to – could Mr C consent to sharing that information for the express purpose Mr B wanted it.
98. I do not consider the injustice that resulted from this fault separable from that which I identified as resulting from the injustice in the second flawed best interest decision discussed above. The effect was the same, in that it hampered Mr B being able to put forward a complaint Mr C wanted to make about his care provider.

The Council’s complaint handling

99. I find fault by the Council in the delay in answering Mr B’s complaint which was evidently first made in October 2018 but not replied to for around five months. It would appear the main cause of delay was uncertainty within the Council about which service area would respond. I consider the Council should have resolved this far sooner. As while it is inevitable sometimes that complaint responses are routed in error to the wrong service to reply, it should not take weeks to resolve this.
100. I find no inherent fault in the Council choosing to summarise Mr B’s complaint in a way that would aid its investigation. It can make sense to group together areas of complaint where they are similar or overlap. I also recognise that Mr B presented his complaint with emphasis on matters of customer service and professional standards. However, clearly he raised these matters in the context of having complaints about substantive issues of social work practice. In particular how the Council had carried out MCA and best interest decision making; how it had recorded its decisions (and kept records more generally) and how it had followed up those decisions. In other words, the matters that I have devoted most of this statement to discussing.
101. I consider the Council’s response failed to engage with these substantive matters. It was therefore an opportunity missed to pick up on the faults I have highlighted above. That was a fault.
102. The impact of the poor complaint handling has therefore been to add further to Mr B’s time and trouble. This is a further injustice to him.

Agreed action

103. The Council has told us that it accepts these findings. To remedy the injustice identified in paragraphs 83, 94-95, 98 and 102 it has agreed that within 20 working days of this decision it will:

• provide an unreserved apology to Mr B and Mr C accepting the findings of this investigation;
• pay a financial remedy to Mr B of £750 in recognition of his distress (£250); time and trouble in pursuing a service for Mr C (£250) and time and trouble pursuing his complaint (£250);
• pay a financial remedy to Mr C of £750 in recognition of his loss of service, distress and loss of opportunity to pursue a complaint.

104. The Council has also agreed to reflect on wider lessons it can learn from this complaint. Within three months of a decision on this complaint, it will prepare a briefing for all relevant staff who carry out MCA or best interest decisions to remind them:

• of the decision specific nature of MCA decisions;
• of clearly recording the reasons for best interest decisions;
• of ensuring effective follow up of best interest decisions; to ensure outcomes are specific, measurable, achievable, relevant and with a clear timescale.

105. The Council will write to us when it has completed this action. It should also explain what measures it has taken to avoid a repeat of the circumstance where Mr B’s complaint became bogged down in disagreement about which service area has responsibility to respond.

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Final decision

106. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr B and Mr C. I am satisfied the Council has agreed action that I consider will remedy this injustice and provide a fair outcome to the complaint. I can therefore complete my investigation.

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Investigator's decision on behalf of the Ombudsman