Summary: The complaint is made on behalf of Mr H, an autistic service user with learning difficulties. It is about a review of his care and support plan, including changes to the times of support and increased support to monitor Mr H take his medication. We uphold the complaint. Our view is the Council was not at fault for seeking to assess whether Mr H could gain more independence – a key aim of the Care Act. But the way the Council implemented short-term changes did not sufficiently consider how Mr H’s autism might affect his response to questions and his reaction to the changes. There was also fault in medicine administration records.

The complaint

1. The complainant, whom I shall refer to as Mr H, is represented by his sister (Mrs J). Mrs J complains:

• The Council was unjustified in its decision to reduce Mr H’s package of care.
• The Council did not give reasons why it disregarded findings from a psychiatrist’s report. This noted Mr H’s disabilities were lifelong.
• One of the report’s findings was that Mr H could often not give a considered answer to questions. Yet a social worker telephoned him to ask if he could prepare his own meals. He, predictably, answered he could. And, based on the telephone conversation, the Council stopped its lunchtime support.
• The Council proposed stopping direct support that was in place to prompt Mr H to take his heart medication. This was despite a letter from a cardiologist which stressed the importance of Mr H always taking his medication. Mrs J says support workers have reported they have found tablets on Mr H’s floor. This shows he needs direct support to take his medication.

2. Mrs J says, ideally, she would like the Council to carry on providing the care it currently does. While she would like Mr H to move to supported living, she is concerned it must be somewhere that is suitable for him to continue to attend his job.
3. Mrs J says she is also concerned about the Council’s proposals for training, further assessments and referrals to other organisations, including an advocate. On the latter point, she doubts whether the advocate would be truly independent of the Council.

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The Ombudsman’s role and powers

4. 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)
5. 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)
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. As part of the investigation, I have:
• considered the complaint and the documents provided by Mrs J;
• made enquiries of the Council and considered its responses;
• spoken to Mrs J;
• sent my draft decision to Mrs J and the Council and considered their responses.

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What I found

Legal and administrative background

The Care Act

8. A council must 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 outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9)
9. If a council decides a person is eligible, it should prepare a care and support plan which specifies the needs identified in the assessment. (Care Act 2014, sections 24 and 25)
10. One of the key aims of the Care Act is to promote the independence of a service user.
11. A person with eligible care needs can have a council arrange their care. Or, if they wish, they can arrange their own care using a payment the council gives them (a ‘direct payment’). They can also choose a combination of these options. (Care Act 2014, section 31)
12. A council must keep a care and support plan and personal budget under review, generally and on a reasonable request from the person to whom the plan relates. A council can revise a care and support plan if circumstances have changed in a way that affects the plan. If doing so, it must involve the person. The council must take reasonable steps to reach agreement with the adult concerned. (Care Act 2014, sections 27 and 28)
13. The Care and Support Statutory Guidance (CSSG) explains a council should review a care and support plan at least every year. (Care and Support Statutory Guidance, Paragraph 13.32)
14. The CSSG has a checklist of broad elements to cover in a review:
• have the person’s circumstances and/or care and support or support needs changed?
• what is working in the plan, what is not working, and what might need to change?
• have the outcomes identified in the plan been achieved or not?
• does the person have new outcomes they want to meet?
• could improvements be made to achieve better outcomes?
• is the person’s personal budget enabling them to meet their needs and the outcomes identified in their plan?
• is the current method of managing it still the best one for what they want to achieve, for example, should direct payments be considered?
• is the personal budget still meeting the sufficiency test?
• are there any changes in the person’s informal and community support networks which might impact negatively or positively on the plan?
• have there been any changes to the person’s needs or circumstances which might mean they are at risk of abuse or neglect?
• is the person, carer, independent advocate satisfied with the plan?

The Care Act and advocacy

15. The CSSG says:

‘No matter how complex a person’s needs, local authorities are required to involve people, to help them express their wishes and feelings, to support them to weigh up options, and to make their own decisions.’

16. The Care Act says councils should ensure service users have access to an independent advocate, if they would have substantial difficulty in being fully involved in the process.
17. The CSSG says ‘[t]he role of the independent advocate is to support and represent the person and to facilitate their involvement in the key processes and interactions with the local authority and other organisations…’.

Autism Act

18. Under the Autism Act 2009, assessors trained in autism should conduct a Care Act assessment for someone who has autism. If the assessor lacks experience of autism, the assessor should consult someone with the necessary experience. Statutory guidance issued under the Autism Act provides detail on the specialist knowledge and skills assessors should have. This includes being aware of the common difficulties people on the autism spectrum face in dealing with personal, social, educational, and work circumstances.
19. The 2015 Autism Act statutory guidance:
• places a requirement on local authorities to provide general autism awareness training for all frontline staff;
• expects council to have made good progress on providing specialist training for those in particular roles, including those undertaking needs assessments;
• says councils must provide or arrange access to an independent advocate for people with autism, to help their involvement in the assessment process.

Medicine administration

20. The National Institute for Health and Social Care (NICE) publishes guidance: ‘Managing medicines for adults receiving social care in the community’ for social care practitioners, including care workers. It says it expects practitioners to take the guidance into account when delivering care. The guidance advises:

‘care workers must record the medicines support given to a person for each individual medicine on every occasion, in line with Regulation 17 of The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. This includes details of all support for prescribed and over-the-counter medicines, such as:

• reminding a person to take their medicine
• giving the person their medicine
• recording whether the person has taken or declined their medicine…’
1. The Council has a joint Health and Social Care Medicines Policy, with the local NHS clinical commissioning group.

Mental capacity assessment

22. One of the key principles of the Mental Capacity Act 2005 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.
23. 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 behaviour.
24. The two questions to be asked when professionals are assessing a person’s capacity are:
• Is there an impairment of, or disturbance in, the function of the person’s mind or brain?
• If so, is the impairment or disturbance sufficient to cause the person to be unable to make that particular decision?

What happened

Background

25. The Council has been providing Mr H with a care package since 2011. From 2015 this has been a mixture of directly commissioned care and care provided by a personal assistant, via a direct payment. Mr H has multiple health issues, including learning difficulties, autism and a heart condition. He is 62 years old.
26. In 2013 Mr H had a heart attack and is now on several medications relating to managing that condition. Mrs J says that, after his heart attack, Mr H moved to part-time working (four days a week). Mr H’s job was at a church some way from his home. Mrs J says he could get there by bus, following a set route he learned many years ago.
27. Mrs J cites a 2014 psychiatrist report, which she is concerned the Council has not fully considered when dealing with Mr H. The report followed a referral from Mr H’s general practitioner, due to concerns about Mr H taking his medication. It notes Mr H:
• appeared to have mental capacity to make decisions about his medical treatment;
• needed a lifetime of social, medical and occupational support, due to his autism and leaning difficulties;
• needed time to digest information and respond;
• would be at a high risk of neglect without support;
• needed long-term support to ensure medication compliance;
• needed support when meeting new people and dealing with new situations.
28. The report is in the Council’s file.

The 2019 care and support plan review

29. The Council’s previous care and support plan review was in 2018. Mr H’s support plan after that was:
• support for lunch preparation and other tasks (from a personal assistant) on the three days a week Mr H was not at work;
• support for domestic tasks one day a week.
30. In addition to the support the Council was providing, district nurses were visiting Mr H every evening to support him with taking his heart medication. Mrs J says this started after Mr H’s heart attack and was arranged by Mr H’s general practitioner.
31. In early 2019, Mr H was due for a review of his care and support plan. The district nurse team had decided around this time to stop its support (from June 2019). The district nurse team’s view was Mr H could manage his own medication, with the aid of assistive technology. (The Council had, some years ago, provided Mr H with some remote monitoring technology. Mrs J reported that Mr H never used this and did not know how to).
32. The new care and support plan recommended visits every evening to support Mr H with his evening meal, to take his medication and preparation for the following day. It also agreed agency support for shopping and domestic tasks once a week. And for personal assistance support twice a week.
33. The overall hours of support were an increase in the Council’s total provision. But this included a decrease in Mr H’s personal assistant support.
34. The care and support plan review document noted:
• Mr H and Mrs J’s views;
• Mrs J’s concerns about Mr H’s capacity to manage his medication, food and clothing.
35. Mrs J is concerned that, in April, during the care planning, the Council’s social worker telephoned Mr H to ask him if he could prepare a meal for himself. Mrs J says as a result of this conversation, the Council cancelled a previous plan to continue to provide Mr J support at lunchtime.
36. Mr J says because of his autism, Mr H will agree to questions asked of him. She says Mr J often says he has not eaten when she speaks to him.
37. The Council’s records confirm the social worker did make investigations about Mr H’s cooking skills. This included:
• contacting Mr H by telephone to ask him about cooking. She asked him how he would cook a quiche and what he would do in an emergency. Mr H gave answers to those questions;
• speaking to Mr H’s personal assistant who said she did not have concerns about Mr H not eating;
• Mr H had not lost any weight, suggesting he was eating enough.
38. The social worker’s report for the Council’s funding panel noted Mr H:
• was able to independently carry out some of his daily living tasks, due to training over the years;
• took a long time to learn a new task or adjust to a change;
• enjoyed having a routine and did not easily adjust to change;
• often said yes to things, without understanding the implications;
• gave the appearance of being able to carry out more than was actually the case;
• had needed support at time from carers with issues like losing supply from utilities;
• appeared not to be able to use the technology in place to allow him to call for support if needed;
• had a heart condition. And medical professionals had advised he was at risk of heart attacks if pressured to undergo too much change;
• required a lot of prompting due to his autism.
39. The Council’s funding panel agreed an increase of three hours in the directly provided hours, so carers could observe Mr H taking his medication from the date the nurses stopped providing that support. But it recommended a 30 minute decrease in the direct payment. This resulted in an increased budget. The record says this was intended as a short term measure.
40. Thinking of the longer term, the Council recommended:
• a holistic assessment of Mr H’s housing options. (Mrs J’s view was Mr H would benefit from some sort of supported housing, although Mr H was resistant to moving);
• a mental capacity assessment to determine Mr H’s capacity to decide himself where he wanted to live;
• carers to support Mr H twice a week in learning how to use the remote monitoring technology.
41. The Council made referrals for extra services for Mr H:
• to the health service for an occupational therapy assessment. (An assessment in 2017 had recommended a range of skills training for Mr H. But Mrs J had said it was not appropriate at the time, so the referral was closed).
• a Care Act Advocate, so that Mr H’s voice could be heard;
• for support and training in using the monitoring technology.
42. The planned holistic assessment, support in using the technology, referrals to other agencies and an advocate have been delayed. Firstly by the complaint and later by the onset of the COVID-19 pandemic.

The mental capacity assessment

43. The social worker did carry out a mental capacity assessment. The assessment concluded Mr H could weigh up the pros and cons of a move into supported housing. It found he had capacity to make a decision on where he lived.

Mrs J’s complaint

44. Mrs J complained on Mr H’s behalf. The Council’s complaint responses advised:
• its view was Mr H could express his own views. It cited conversations about his food preferences. And those conversations had led it to increase the length of time of his evening call;
• it wanted to refer Mr H to a Care Act Independent Advocate to help ensure Mr H’s voice was heard;
• Mr H’s care agency liaised regularly with the relevant Council team. It expected the agency to report any concerns about Mr H’s welfare and well-being;
• to promote Mr H’s independence, the Council wanted to refer Mr H to an OT service;
• monitoring Mr H’s use of the assistive technology would help to understand Mr H’s needs in relation to the long-term plan for him to move into alternative accommodation;
• it would only consider using the remote monitoring service to assist Mr H take his medication if it was shown to be suitable and as part of a risk assessment.
45. Mrs J complained to the Ombudsman on Mr H’s behalf. She reported the concerns outlined in the complaint summary. One of those was about the medicine administration. She told me Mr H's cardiologist stressed the importance of him taking medication every day. But, since the Council took on responsibility for the role, Mr H’s personal assistant had found medicines on the floor. And the care provider had not kept a record of the medicines it gave to Mr H.
46. In response to our enquiries, the Council advised:
• since June 2020 a new care agency had taken over care provision, for the directly commissioned part of Mr H’s support package, including the medicine administration. This was following ‘quality issues’ with the old care provider;
• the new agency had started to use a medical administration record. The Council has not sent me any records of medical administration for the old care provider’s provision;
• Mr H’s allocated social worker had experience working with adults with autism for many years, including autism training in 2018 (the Council sent me evidence of this);
• the Council’s autism awareness training refresher arranged for staff was cancelled due to COVID-19. Follow up training had been re-arranged;
• work on the Council’s draft autism strategy was suspended due to COVID-19 lockdown.

Updates from Mrs J and the Council

47. Mrs J says that in March 2020 she asked the Council to reinstate its lunchtime visits to Mr H. It agreed. So Mr H now gets that support, as well as the evening visits. The Council’s records confirm it agreed to this support because, at the start of the COVID-19 pandemic, Mr H’s personal assistant could not provide support, as she was self-isolating.
48. The Council advised that in January 2021 it had agreed to reinstate another lunchtime visit, as Mr H was not going back to work. Its social worker had also agreed with Mrs J that Mr H had an extra support need – to help him take exercise, replacing exercise from work.
49. The Council says it was due to review Mr H’s care needs in January 2021. But face to face meetings were not then suitable (due to the COVID-19 lockdown). So it had postponed the review.

The Council’s response to my draft decision

50. The Council responded to my draft decision. It advised:
• it would risk assess any proposals to change Mr H’s support;
• its social worker had telephoned Mr H, as his voice not being heard. Its subsequent decision was informed by Mr H’s information that he could prepare himself lunch. The social worker role was to empower Mr H;
• it did have monitoring mechanisms in place. It expected the care agency to contact Mrs J and the social worker if there were any issues;
• it agreed the NICE guidance was clear. So its ‘adult social care and commissioning colleagues will be reviewing the medication policy to ensure at the point agencies are commissioned there is clear commitment to adhering to the regulation and NICE guidance’;
• it agreed the care provider should have kept medicine administration records. So the agency should have been able to provide them. It would ‘…review the policy and procedures in place for all the agencies to ensure that they are aware of their contractual and regulatory reasonability’s and that their own polices follow’;
• ‘The team had recently shared papers on Core Capabilities Framework for Supporting Autistic People and Autism Framework briefing paper and there is a plan to have an a more in- depth discussion at a [team meeting]’;
• the team had identified autism training as a need;
• the Council agreed to provide Mrs J with a list of independent advocates. These were not directly commissioned by the Council. It would also offer Mrs J her own advocate;
• Mr H had refused advocate support;
• Its review of its autism strategy was due in June 2021.

Analysis

The care and support planning

51. It is not our role to decide if a person has social care needs, or if they are entitled to receive services from the Council. Our role is to establish if the Council assessed a person’s needs properly and acted in accordance with the law.
52. A key aim of the Care Act is to seek to promote, as much as possible, independence. So the Council was right to seek to provide Mr H help – in the form of technology, referrals and support – to aid his independence. Mrs J has her doubts about, for example, whether Mr H could make more use of assistive technology – she says he cannot use it. That may be so. And I note the social worker agreed Mr H did not appear to be able to use the technology currently. But this does not mean the Council was at fault for seeking to find out if Mr H could learn to make more use of it, through training.
53. In the context of wanting to explore whether it could do more to aid Mr H’s independence, the Council had valid reasons for wanting to refer Mr H for an OT assessment. I note an earlier assessment had recommended a range of skills training.
54. Mrs J is concerned the Council may seek to withdraw support and introduce change that would not be appropriate for Mr H. She notes that change makes him anxious – something that he should avoid, due to his heart condition.
55. I understand Mrs J’s concerns and agree her concerns are valid. But the social worker has herself noted all these concerns in her report for the Council’s funding panel. I would expect the Council to take account of Mr H’s capabilities (for example to take his medication and use any technology) when making any decision to change the way it provided this support – seeking clarification from professionals, carers and others as needed.
56. The Council says it would not impose a change in how it supports Mr H to take his medication, without testing Mr H’s use of it and carrying out risk assessments. Logically any risk assessment would consider the concerns about Mr H’s anxiety about change and the dangers that poses; because of his heart condition. So, while I see no fault in the Council’s proposals, I would expect any future decision to change his support to have regard to all these issues.

The effect of Mr H’s autism

57. Mrs J places significance on a 2014 psychiatrist’s report about Mr H’s disabilities – showing they were life-long. The Council has a copy of the report on its file. I would expect it to have regard to this and other reports, in its assessment and interactions with Mr H. And I can see, most noticeably in the social worker’s submission to the Council’s funding panel (see paragraph 38), it was alert to the issues the report raises.
58. One of the report’s observations is that Mr H needs time to digest information before replying. That is consistent with a general understanding of the needs of autistic service users. So, on this point, I agree with Mrs J that telephoning Mr H to ask him questions was not an appropriate way to proceed. A telephone call could not sufficiently involve Mr H. Or allow him to express his wishes and feelings and weigh up his options, about changes to his lunchtime provision.
59. I also agree with Mrs J that the Council should have treated with caution what Mr H told it during a telephone conversation. The fact Mr H could do something, does not mean he would do it.
60. The Council’s records show the social worker also spoke to carers and noted Mr H had not lost weight. The Council says her role was to empower Mr H. But the fact Mr H was managing before the support was withdrawn does not preclude the fact that a change might affect Mr H’s nutrition habits.
61. It is not for the Ombudsman to say the Council could never change its support. But I would have expected to see more analysis of why the Council’s view was Mr H could manage the change in routine a withdrawal of lunchtime support would entail. As well as new people visiting in the evening (which was unavoidable given the district nurses’ decision) he also lost some support from people he was familiar with. To not consider more the possible consequences of that was fault.

Medicine administration

62. The Council agrees its care provider should have been able to provide medicine administration records. To not have these was fault. It has advised it and the clinical commissioning group were revising their medicine administration policy.

Advocacy

63. Mrs J is concerned that Mr H cannot give informed answer to questions posed to him. The complaint shows she has been a source of support for him in this respect. But that does not rule out the role an independent advocate could play. So my view is it was correct for the Council to seek to appoint a trained advocate to work with Mr H to make sure his own views were part of the assessment planning.

Autism

64. The government published the latest version of Autism Act statutory guidance in 2015. It said it expected councils to have made good progress in providing specialist autism awareness training for those in particular roles, including those undertaking needs assessments.
65. In response to my draft decision, the Council has advised of autism awareness training the social worker attended in 2018. It has also advised it is updating its autism strategy. So I do not agree with Mrs J that the social worker did not have sufficient autism awareness.

Did the faults cause an injustice?

66. For clarity, it is not fault for the Council to want to explore what it can do to support Mr H to more independence. So its suggestions of training to use technology and for an OT assessment are not evidence of fault. I note an earlier OT report did make suggestions about ways to support Mr H.
67. It is also not fault for wanting to use an advocate to assist Mr H. This is a key recommendation both in the CSSG and the guidance supporting the Autism Act.
68. But the Council’s records suggest it did not take enough account of Mr H’s likely specific needs – for routine, for a chance to digest information, when it proposed changes to Mr H’s package of support. That creates uncertainty about what would have happened but for the fault.
69. But the onset of the COVID-19 pandemic meant moving Mr H’s assessment forward from the short term provision was delayed. And the Council agreed then to also reinstate the lunchtime support.

Agreed action

70. As a remedy for the faults I have identified, I asked the Council to, within one month of my final decision, apologise to Mr H and Mrs J for the faults I have identified. It has agreed to do this.
71. It also agreed to (and has already done so) provide Mrs J with information about how independent advocacy could allow Mr H to express his own feelings and views.
72. The Council has also advised it would be ensuring its procedures for commissioning care providers makes them aware of the need to follow the Regulations and NICE Guidance when part of their role involves medicine administration.
73. It has advised the relevant team would be discussing autism at a team meeting. And it would be commissioning training around this.
74. The Council has also advised us when it will produce a report on updating its autism strategy.

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Final decision

75. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman