Decision : Upheld
Decision date : 17 Mar 2021
The Ombudsman's final decision:
Summary: There was a lack of clarity in the Council’s support plan. There was fault in the way the care provider used Mr E’s money to pay for food without proper authorisation and there was a delay in administering medication. The Council has agreed to apologise, provide a financial remedy and write to other residents who have been similarly affected.
- Mr D complained on behalf of himself and his adult son, Mr E, who did not have the mental capacity to make this complaint.
- Mr D said:
- Mr E’s care plan said he should receive 42 hours 2:1 support (two support workers to one resident) to go out in the community, but the Council failed to provide this.
- Support staff used Mr E’s money to pay for their own food.
- The Council restricted Mr D’s contact with Mr E for two days in July 2019. It said this was because of safeguarding concerns.
- Mr D made two safeguarding referrals to the Council relating to the care provider’s treatment of Mr E as he had concerns about the care the care provider provided.
What I have investigated
- I have investigated Mr D’s complaint. Paragraphs 61 to 63 explain why I have not investigated some complaints which related to court proceedings.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, 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)
- We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, 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
- I have considered the evidence provided by Mr D and the Council and the relevant, law, guidance and policies and both sides’ comments on the draft decision.
What I found
Law, guidance and policies
- 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 principles of the Act are:
- A person must be assumed to have capacity unless it is established that they lack capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because they make an unwise decision.
- Any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
- The Care Act 2014 section 42 says a council must make necessary enquiries if:
- It has reason to think a person may be at risk of abuse or neglect and
- this person has needs for care and support and
- as a result of these needs, they cannot protect themselves.
- I have summarised the complaints that the Ombudsman can investigate and will deal with each complaint separately.
Provision of 2 to 1 support
- Mr D complained in December 2019 and said:
- Mr E was entitled to 42 hours of 2:1 support per week to enable him to access the community and participate in activities. The Council failed to provide him with this support.
- How many unused hours were there and what did the Council do with them?
- The Council should have banked any unused hours and used them to provide Mr E with a holiday as this is what other care providers sometimes did.
- The officer had gone through Mr E’s care assessments and care plans from July 2011 to the present day. The current care plan did not include 42 hours 2:1 support and had never done so. Mr E had a need for 2:1 support to access the community but the hours were not specified as support was arranged to fit in with access to college.
- Mr E was living at a 24-hours supported housing unit. He received 1:1 support when he was at home, 2:1 support when he went into the community and to participate in activities. He received waking night support at night.
- Mr E had been attending a specialist education college during the day, but this was due to end in July 2019 so his care plan was changed to reflect this.
- The Council sent me Mr E’s assessment of needs and his care plan from April 2019. The care plan was not clear and difficult to understand.
- These are some direct quotes from the plan:
- ‘EXISTING/AMEND Was variable dependent on [Mr E’s] college commitment to continue to be set as it was for term time 2:1. For weekends and evenings to remain at 32 hours per week. @£16.80 per hour = £537.60.
- ‘NEW: Specialist… 1-1 day service provision of £165/day (6 hours) and additional hours at *£18.51 from [other care provider].
- ‘4 days per week and 4 additional 2:1 hours per day = £239.04 per day. £956.16 per week.’
- ‘NEW: 6 hours x £16.80 one day per week. £100.80 per week.’
- Mr E has ‘32 hours 2:1 support and 6 hours were added in for the one day when [Mr E] would not be at the … day service making 38 2:1 support hours per week. Although due to the impact of Covid-19, this has not always been used because of restrictions accessing the community.’
- There were two tenants at Mr E’s placement. During the day, the Council provided three full time staff from 10:00 am until 9 pm (11 hours). This meant there was one staff member per tenant (1:1 support) as well as an extra staff member who was shared between the two tenants. Mr E was therefore able to access 2:1 support for 38 hours a week (5.5 hours x 7).
- The support was flexible in line with what Mr E wanted to pursue and was reviewed every year.
- Currently, clients were spending less time in the community because of the Covid-19 restrictions.
- A care plan should give a person a clear record on what needs/outcomes the Council will meet, how it will provide the support and how it has calculated the personal budget. I make no comment on the content of the care plan and whether it met Mr E’s needs or not, but there was fault in the communication of the care plan as the plan failed to provide the information it was meant to provide. It was not clear, from the plan, how many hours of support Mr E was entitled to and how the personal budget was calculated.
- There was also fault in the Council’s complaint response dated February 2020 as the Council said the care plan did not specify the hours of 2:1 support which was not true.
- I accept that the Council told Mr D in its emails that Mr E was entitled to 38 hours of 2:1 support, so that would have addressed the communication problem to some extent. However, the fact remains that the Council should write clear care plans which explain what the needs were, how they would be met and what support the person was entitled to.
- I am satisfied that the Council has paid for the necessary staff to provide Mr E 2:1 support in line with this care plan. I cannot say, of course, whether Mr E actually received this support as the records are not detailed enough. It appears Mr E had a daily activity on most days from the records I have seen, but I cannot say how long these activities went on for.
- I appreciate that Mr E has mental capacity to decide what he would like to do during the day. So, I accept that he may not always choose to go out the allocated hours of 2:1 support in community.
- There was, in my view, fault in the Council’s failure to monitor how many hours of 2:1 support Mr E actually received. The records that were kept were very limited and did not provide the detail I would have expected. The Council paid for 2:1 support so it should have set up some method to check that the support it paid for was actually provided. Also, the Council was meant to review the care plan yearly and the Council says that it reviewed the plan even more frequently as the plan was continuously under review. The data on how many hours of activities in the community Mr E actually received would be vital to carry out those reviews and to make decisions on the provision of future support.
- It is difficult to say whether Mr E suffered any injustice as a result of this fault. I accept that he may well have not received as many hours of 2:1 support than he was entitled to, but I appreciate that this may have been his own choice.
- I note that the Council has now put in place a system where the support worker provides more detail about the support that is provided and sets out the hours that Mr E has received 2:1 support in the community. In my view this will address some of the problem as it should give the Council the tool to monitor whether the plan is working, what the support workers are offering and what activities Mr E engages with.
Payment of staff’s meals
- In January 2020 Mr D said:
- The Council has allowed its staff to eat meals at Mr E’s expense.
- The Council had looked at the spending records and noted that Mr E regularly bought meals at fast food outlets for himself and, on some occasions, paid for food and drinks for the staff who supported him.
- The care provider’s policy said: ‘The staff must at all times act responsibly when using an individual’s money. For example, when purchasing meals, staff should choose food to the same or less value as the individual they are supporting. A receipt must be obtained for any purchase made on behalf of the individual.’
- The policy was due to be reviewed and the new policy would include guidance on spending money from people who lack mental capacity to make decisions about their finances.
- The spending was in line with the current policy so there was no evidence of financial abuse and this was therefore not a safeguarding matter.
- If Mr D continued to have concerns, this should be raised with the provider as a complaint, rather than as a safeguarding matter.
- There was fault in the Council’s actions. The Council accepts that Mr E lacked capacity to manage his finances. He was very vulnerable to financial exploitation.
- I therefore do not understand why the Council thought it was acceptable to have a policy which said that support staff could use Mr E’s money to pay for food without consulting Mr E’s parents or without any decision that this was in Mr E’s best interest. At the very least, the Council should have informed Mr D and Mrs D of its intention and should have invited them to a best interest meeting so that a decision could be made on how this type of expenditure was dealt with.
- I am also concerned that the Council did not seem to be aware of the practice when Mr D raised it in his complaint in January 2020. The Council’s initial response dated February 2020 suggested the Council agreed with Mr D that it would not have been acceptable for staff to use Mr E’s money in the way suggested and that the Council needed evidence that this had happened.
- I also find fault with the Council’s response from May 2020 to Mr D’s complaint about this issue. I agree that the matter may not have been a safeguarding concern if there was no evidence of financial abuse by the staff. However, that did not mean there was no fault in the actions of the care provider and the Council’s complaint response should have addressed this.
- I understand that the Council stopped the practice after Mr D made them aware of it. I have also been informed that the Council is in the process of re-writing the policy to ensure that best interest decisions are made if money is taken from residents who lack the mental capacity to make financial decisions.
- That will hopefully address any future problems, but does not address the injustice Mr E has suffered. I recommend the Council goes through the records for a year preceding the date of Mr D’s complaint (2019) to check how often Mr E’s money has been used to pay for staff members’ food and that it reimburses Mr E with this amount.
- I am also concerned that other residents may have been affected by the old policy, both in this placement and other placements. I therefore recommend that the Council informs any other residents who may have been affected of the Ombudsman’s decision and asks them, or their representatives whether they wish to make a complaint.
Restriction of Mr D’s contact
- Mr D complained in January 2020 that:
- The Council restricted his contact with Mr E in July 2019 and stopped Mr E from visiting him that weekend.
- The Council had already replied to this complaint in the past. The Council received a safeguarding referral regarding Mr D and had a duty to protect Mr E as he was a vulnerable adult. The Council decided very quickly that Mr E was not at risk of harm and that the referral did not meet the threshold for a safeguarding investigation. The matter was resolved within two days and contact between Mr D and Mr E was reinstated.
- The Council could not give more information about the referral as it was raised confidentially.
- I find no fault in the Council’s actions. The Council had a duty to safeguard Mr E and the referral raised concerns about his safety. I note the suspension of Mr D’s contact lasted only two days and the Council dealt with the matter quickly.
- I appreciate that this was frustrating for Mr D, however, the Council had a duty to protect Mr E while it obtained the further information it needed to make a decision and I cannot criticise the Council for that.
- Mr D made two safeguarding referrals relating to Mr E in February 2020. He said:
- On 17 February 2020 Mr E’s GP prescribed drops to put in Mr E’s ears to address a build-up of wax. The GP also prescribed cream to put on Mr E’s sore nails and dry skin. Mr D found out on 28 February 2020 that the care provider had not administered the drops or the cream.
- A support worker sent photos to the GP which showed blood on Mr E’s toilet.
Ear drops and cream
- The prescription for the ear drops and cream said they should be given ‘as required’.
- This meant that a manager had to write a care plan with instructions so that staff would know when to administer the medication. Unfortunately, there was then a breakdown of communication which meant that nobody wrote the care plan or checked that the necessary action had been taken following the GP visit.
- As a result, Mr E did not receive his medication until 28 February 2020.
- The allegation of ‘neglect’ had been substantiated.
- Medication training was scheduled for June 2020.
- The care provider had to discuss the incident with staff and review its process and structure so that there would not be a repeat of the incident.
- Mr E suffered some blood loss related to a medical condition. A support worker took photos of the blood (which was in the toilet and on the floor) and showed them to the GP. Part of the bottom of Mr E’s leg could be seen on the photo.
- The staff member who took the photos said the intention was to show the extent of the blood loss to the GP as they were concerned about Mr E’s well-being. They made an instant judgment but agreed that, on reflection, it may have been better to seek guidance and record it as a best interest decision.
- The investigation concluded that the photographs taken were in Mr E’s best interest. Mr E had not suffered any harm as a result, but the care worker should have made a best interest decision and consulted others.
- The manager said that, as a result of the complaint, she had spoken to the staff about the use of phones to take photographs and that decisions such as this one needed consultation with others.
- The Council has already upheld the complaint about the medication and I agree there was fault. The care provider failed to administer the medication that was prescribed. This was partly because its policy said a manager had to draft a care plan if a medication was to be administered ‘as required’ and, partly, because of poor communication, nobody thought the matter was their responsibility.
- The Council has made recommendations to ensure that this problem is avoided in the future. These include a review of the process and the structure of the care provider.
- Although these recommendations should prevent the problem happening again, they do not address the injustice Mr E suffered. The delay in the medication meant Mr E suffered the problems with his blocked ears and dry skin longer than he should have. I recommend the Council pays Mr E £150 as a symbolic amount to reflect the distress this caused him.
- In terms of the photos, I agree with the Council that the support worker should have obtained authorisation before sending the photos. However, Mr E has not suffered any significant injustice as a result of the support worker’s actions. Everybody agreed that it was in Mr E’s best interest for the GP to see the photos as it was necessary for the GP so that they could best assist Mr E.
- The Council has agreed to take the following actions within one month of the final decision. The Council will:
- Apologise in writing to Mr D and Mr E for the faults.
- Check Mr E’s records for 2019 and find out the incidents when Mr E’s money was used to pay for staff members’ food and drink and reimburse Mr E with this amount.
- Pay Mr E £150 to reflect the injustice suffered by the poor care provided in relation to the medication.
- Contact any other resident/their representative who has been affected by the policy (payment of staff members' food and drink) and inform them of the Ombudsman's decision and ask them whether they wish to make a complaint.
- I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.
Parts of the complaint that I did not investigate
- Mr D said the court decided Mr E should stay at his current placement (despite Mr D’s objection to the placement) but said the care plans should be reviewed. He said the Council also waited on the court decision to provide a climbing frame and trampoline. He said the Council had breached the order and there was a delay in providing the climbing frame.
- He said the court criticised the Council for imposing communication restrictions on him and criticised a secret internal memo with comments made by the Council.
- I have not investigated these complaints as they relate to court proceedings and are therefore out of the Ombudsman’s jurisdiction.
Investigator's decision on behalf of the Ombudsman