Summary: The Council failed to conduct a proper review of Mr D’s care and support plan. It did not gather information from his carer, it made changes to the support plan without considering all available evidence, and without a proper transition plan in place. This led Mr D to disengage and refuse support, so he was not formally receiving the support the Council assessed he needed. Ms C provided Mr D with informal support; the Council did not offer a carers' assessment to support her in this role. The Council delayed closing a safeguarding action against Ms C and delayed taking action to keep Mr D safe online. The Council’s failures lead to uncertainty about whether the situation might have been different if properly reviewed and any changes to support properly planned. Ms C has been anxious and has had time and trouble complaining. The Council will take the action detailed at the end of this statement, which involves apologies and payments to Ms C and Mr D, and reminders to relevant staff to improve service.

The complaint

1. The complainant, who I will call Ms C, says the Council is failing to meet her son, Mr D’s, assessed care needs and failed to provide prompt and adequate support to keep him safe online. The Council is not providing the support it assessed Mr D needs, he currently receives four of the 28 support hours on his care and support plan. The Council has taken Court of Protection proceedings about Mr D’s use of the internet, which Ms C thinks could have been taken much sooner. Ms C says the Council failed to consider the least restrictive option regarding managing Mr D’s use of the internet to keep him safe.
2. The removal of Mr D’s internet, and the lack of support hours, leaves him socially isolated. This increases Mr D’s anxiety, makes him withdrawn and increases his verbal aggression. Ms C says the Council has tried to force face to face meetings, and changes in care support, on Mr D at a time he did not want to meet with people because of Covid-19. This increased his anxiety and made him more withdrawn. Ms C says the Council changed Mr D’s support package overnight, despite his Autism meaning routine is important and change is difficult to cope with. Ms C says the Council blamed her for Mr D’s disengagement.
3. Ms C feels the Council has tried to blame her for not removing Mr D’s electronic devices, for him withdrawing from services, and saying she did not provide adequate support when she was acting as his personal assistant. The Council started a safeguarding investigation, but later withdrew it. Ms C says none of this was properly explained to her, and the communication from the Council has been poor throughout with lack of explanations and not responding to her correspondence. Ms C is stressed and having disturbed sleep. Ms C says she is in financial difficulty as she cannot seek paid employment while providing a high level of informal support to Mr D.

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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. I considered:
• Information from Ms C, including during a telephone conversation.
• Information from the Council in response to my enquiries.
• The Care Act 2014 and associated statutory guidance.
• The Mental Capacity Act 2005 and associated statutory guidance.
• The Care and Support (Direct Payments) Regulations 2014.
8. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

Care planning under the Care Act 2014

9. 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 or whether the local authority thinks an individual has eligible needs. 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.
10. Where local authorities have determined that a person has any eligible needs, they must meet these needs.
11. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what 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. When preparing a care and support plan the local authority must involve any carer the adult has. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
12. Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. As well as the duty to keep plans under review generally, the Act puts a duty on the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one.

Advocacy

13. Section 67 of the Care Act 2014 places a duty on local authorities to arrange independent advocacy if the authority considers an individual would experience ‘substantial difficulty’ in participating in (amongst other things) their assessment and / or the preparation of their care and support plan. The duty does not arise if the local authority is satisfied that there is some other person who is an appropriate representative (provided that person is not engaged in providing care or treatment for the individual in a professional capacity or being paid to do so).

Direct payments

14. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to arrange their own care and support to meet their eligible needs. The local authority has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the Council should support them to use and manage the payment properly.
15. The person can use their direct payment to employ a personal assistant to meet their care and support needs. You cannot employ a relative who lives in the same household unless the Council grants an exception.
16. The Council should review the direct payment account at least annually, and review whether it is an appropriate way to meet the adult’s needs. The Council has the power to terminate agreements if it considers there has been a breach of the agreement.

Mental Capacity Act 2005

17. 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 Act (and the Code of Practice 2007) describes 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.
18. 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.

19. 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.
20. 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?

21. 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.
22. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests. The decision maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
23. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the court of protection might need to decide what is in the person’s best interests.

The Autism Act 2009

24. The Adult Autism Strategy provides guidance on the implementation of the Autism Act 2009. It says when acting under the Care Act 2014 CSSG councils must:-

• Ensure that any person carrying out a needs assessment has the skills, knowledge, and competence to carry out the assessment in question and is appropriately trained. Where the assessor does not have experience in the condition, the local authority must ensure that a person with that expertise is consulted.
• Carry out a supported self-assessment of the care and support needs of an adult with autism if that is what the adult wishes (providing they have capacity to consent);
• Involve individuals (including those with autism and their carers) when carrying out certain care and support functions in respect of them, such as when conducting needs or carers assessments, preparing care and support, or support plans (and when revising such plans);
• Where required provide access to an independent advocate to enable the individual’s engagement in determining their support;
• Identify the outcomes individuals (including those with autism) wish to achieve for their day to day lives in their needs assessments and carer’s assessment.
• Exercise their care and support functions with a view to ensuring the integration of care and support provision with health provision and the provision of other services that may influence health (such as housing accommodation) where they consider this would, for adults in their area, promote well-being, improve the quality of care and support, or help prevent or delay the development of needs.
• Provide or arrange services, facilities, or resources, or take other steps, which they consider will contribute to preventing or delaying the development of care and support needs of adults in their area and support needs of carers, including the care and support needs of adults with autism and the support needs of their carers, regardless of whether they are eligible for social care.

What did happen

25. Mr D lives alone. Mr D has a Learning Disability and Autism. Mr D cannot manage his daily needs, such as managing his nutrition and maintaining his home.
26. The Council assessed Mr D’s adult social care needs in accordance with the Care Act 2014 and produced a support plan and personal budget to show how it would meet Mr D’s eligible care and support needs. The Council reviews this each year.
27. In 2020 the plan was for Mr D to employ Ms C as his personal assistant for 28 hours per week, and a care agency for 2.5 hours per week. Ms C had been employed as Mr D’s personal assistant since 2015.
28. Mr D was in trouble with the Police, who had seized his electronic devices. Ms C, the Police, and professionals involved with Mr D were concerned about what Mr D was posting on the internet, and his personal safety because of this. Mr D had received threats from members of the public in reaction to what he was posting.
29. The Council held a professionals meeting in April 2020. The Council completed an assessment under the Mental Capacity Act and found Mr D does not have capacity around his use of social media. The Council decided Mr D needs educating on the consequences of his online activities and needs more structured routine. The Council would contact Ms C to discuss, which it did. Mr D has a Learning Disability nurse who is supporting him with educational work around his use of the internet. The Council decided to review Mr D’s care and support plan.
30. The Council had no telephone number for Mr D. When the Council asked Ms C for Mr D’s number, she told the Council Mr D did not want it to have his number. Mr D did not want a face-to-face meeting because of the Covid-19 pandemic. The Council arranged to complete the review by video call. The Council suggested it provide an advocate for Mr D, but Ms C said this was not needed because she could ensure Mr D’s voice was heard.
31. The Council was concerned Ms C might be blocking its access to Mr D, or speaking for him, on the basis it could not contact him directly. Without speaking with Mr D, the Council could not know whether Ms C was expressing Mr D’s views or was speaking for him.
32. There was a conflict of interest here because Ms C was a parent but also a paid carer. The Council wished to speak with Mr D without his paid carer present, which is normal practice. However, Ms C wished to support her son with assessments and reviews as a parent. The Council recognised there was also a conflict of interests for Ms C to continue managing the direct payment and paying herself as Mr D’s personal assistant.
33. Due to technical difficulties the Council completed Mr D’s review by telephone call in July rather than video calls, and provided an advocate for Mr D. The Council had threatened to take the case to the Court of Protection to decide whether a face-to-face assessment was necessary because of differing opinions between the Council and Mr D/Ms C but it never took this action. Ms C is concerned the Council did not involve her in the review. Mr D was happy with the support he was receiving.
34. The Council decided the current support plan was not working because Mr D was constantly getting into trouble with the police. Mr D told the Council he did not know how many hours Ms C was currently working with him. The Council thought there was no structure or boundaries with the current support package. The review stated Mr D either needed constant supervision when online, or to have no internet connection at all. The review decided Mr D needed 10.5 hours of care and support at home, and 14 hours for social inclusion and support outside the home.
35. The Council decided Ms C was not providing acceptable support based on what Mr D said during the telephone review, as he said Ms C came a few days a week and sometimes would only stay a few hours. Ms C disputed this statement when the Council raised it with her a month later. The Council did not ask Ms C for any time sheets or evidence of the support she was providing. The Council decided Ms C was not meeting Mr D’s needs on the basis he said if he did not want to cook then Ms C did it for him; the Council concluded Ms C was not supporting Mr D to be independent. The Council did not seek any information from Ms C on this point, and how regularly she was completing tasks for Mr D. The Council later learnt from another interaction with Mr D that he did not fully understand time, so it is possible what he said about Ms C’s support was untrue.
36. There was a conflict of interest in Ms C being employer and employee. The Council’s view was that Mr D had become too reliant on Ms C and there needed to be a change. The Council said it would provide a notice period for the change. Mr D and Ms C were concerned the Council was removing Mr D’s choice, that he did not want multiple people coming to his home during Covid-19, that he needed consistency and did not like change. Mr D asked to keep Ms C as his personal assistant and for someone else to manage the direct payment.
37. The Council spoke with Ms C and said it did not think it was right for her to be employer and employee and so it would give her 30 days’ notice. There is no evidence of consideration given to Mr D’s wish to keep Ms C as his personal assistant and have someone else manage the direct payments. Ms C then gave two weeks’ notice but said she would continue to support Mr D unpaid until the Council found new carers. Ms C says she did this because she felt the Council thought she was abusing the system and thought her motives were financially motivated. By withdrawing as a paid carer Ms C hoped to prove she was not financially motivated, and just wanted what was best for Mr D, despite this meaning she no longer had an income. However, she did not expect the situation to go on as long as it has, and to still be providing a high level of informal support due to a lack of sufficient formal support.
38. The carer who was already providing the 2.5 hours could not increase their hours, so the Council sourced somebody else. Mr D was not happy to accept this change and refused support. Mr D continued to tell the Council he just wanted to be supported by Ms C. Mr D was also preoccupied by what was happening with the continuing Police investigation. Ms C was worried about Mr D’s mental state and told the Council this. Ms C was constantly in contact with the Council trying to arrange suitable support for Mr D. Ms C continued to support Mr D.
39. The Council decided Ms C was deliberately controlling access to Mr D. The Council wrote to Ms C and told her this and that it was starting a safeguarding investigation. The Council said Ms C had not been providing the hours of support to Mr D that she was paid for, the support she provided had not contributed to Mr D’s independent living skills, had not prevented him offending online, and had not helped him access support. The Council closed this two months later because of insufficient evidence.
40. In January the Council completed another review of Mr D’s care and support. Because Mr D was declining support, he was not receiving the support the Council assessed he needed. Though Ms C was continuing to provide natural support. I do not have a copy of the review; it seems the Council decided Mr D needed assessment by an Occupational Therapist to assess his functional needs.
41. Mr D got into further trouble with the police. The Council applied to the Court of Protection seeking the removal of all internet devices. The Council says it thought since the police had seized Mr D’s devices that he could not get online, and there was an injunction against Ms C to prevent her providing Mr D with internet-capable devices. Ms C disputes the Council did not know Mr C had access to devices over that time. Ms C argues removing all devices is not the least restrictive option, and queries whether use of the internet can be limited to certain sites for example. The Council says Ms C did not raise this until later in the court case.
42. The Council referred Mr D for supported living accommodation, completed an Occupational Therapy assessment, and gathered information from Ms C about Mr D’s abilities around completing tasks independently. The Occupational Therapist (OT) visited Mr D, but he did not engage well and would not complete any tasks while the OT was present. The OT decided Mr D could do tasks himself but lacked motivation and needed prompts.
43. Throughout 2021 the Council gradually increased Mr D’s support as he got to know new care workers. The Council discussed with Mr D ways of keeping him safe online, such as accessing the internet at a neighbourhood centre, which Mr D declined. Mr D was not keen on the idea of supported living, and the supported living manager did not think it was viable as Mr D’s online activities could be a risk to other residents. So, the referral for supported living was closed.
44. The Court decided the parties should jointly commission an expert report into how to limit Mr D’s internet access on his devices. The Council suggested some controls, but Mr D was anxious about this and just wants his devices to be as they are. Because Mr D lacks capacity to decide how to keep himself safe online, and because the Court had ordered it, the Council acted in Mr D’s Best Interests and had his technology devices inspected by a specialist company. The issues on complying with the Court of Protection, and keeping Mr D safe online, are continuing.

Was there fault causing injustice?

45. I must now consider whether there was fault by the Council which caused an injustice to Ms C and Mr D. If I find there was fault causing injustice, I will recommend actions the Council can take to acknowledge this.

Care planning

46. Mr D employed Ms C as his carer; this is allowed because she does not live in his house. Ms C acted as Mr D’s Personal Assistant for five years, and the Council picked up no concerns at annual reviews. However, Ms C was the authorised person managing the direct payment. Therefore, Ms C was employing herself. This causes difficulty for accountability. How can an employer discipline themselves as employee, make decisions about awarding themselves a pay rise, or making themselves redundant? The Council allowed this to carry on for several years before it decided it was not right. The Council should have addressed this much sooner. Though based on the reviews of the care support and direct payment account, this has caused no injustice to Ms C or Mr D.
47. The Council at first wanted to complete Mr D’s 2020 review in person, Mr D did not want to do so because of the Covid-19 pandemic. The Council was entitled to pursue the issues about face-to-face assessment to the Court of Protection, because there was a dispute about whether this was needed/appropriate. I understand this caused concern to Ms C and Mr D, but I cannot say that concern was caused by any fault of the Council.
48. At the 2020 review the Council was correct to want to speak with Mr D directly about whether the current support arrangements were meeting his needs. The Council was correct to say that as Ms C was a paid employee it wanted to meet/speak with Mr D alone or with an advocate other than Ms C. Ms C is concerned the Council spoke with Mr D for two hours without her knowledge, but that is not fault. The Council’s duty is to Mr D, and there was no requirement to tell Ms C. It is presumed Mr D had capacity at the time to decide on his care and support arrangements. I would expect the Council to also involve Ms C in the review at a separate time, to gather her input as a paid employee and as natural support. The July 2020 review document does not list Ms C as a person consulted in the assessment, only Mr D and his advocate. This is fault; it is not in line with Care Act guidance or the Autism Act which is to include carers. The Council spoke with Ms C a month later, where she disputed what Mr D had said about the support she was providing.
49. Following the review, the Council decided Ms C was not meeting Mr D’s needs. I find the Council’s process for making its decision about whether Mr D’s support package was meeting his needs was flawed. The Council should not have simply taken Mr D’s word about the support he was receiving, and should have asked for information and evidence from his support worker – Ms C. The Council could have kept this under review rather than deciding without evidence that Ms C was not meeting Mr D’s needs. The concerns about not keeping Mr D safe online were not part of the care and support plan and did not form part of Ms C’s role as Mr D’s Personal Assistant, so were not a reason to dismiss her from the role. The Council should have considered whether the blurred lines was a sufficient reason to terminate employment, or whether there was another way to resolve that issue.
50. The Council ended Ms C’s employment without a transition plan in place for Mr D’s continued support. This meant Mr D did not receive the 24.5 care and support hours the Council assessed he needed. However, as Ms C continued to support Mr D, the impact to him is minimised. The impact on Ms C was greater, as she says Mr C’s mood and behaviour declined because of the changes to his support, and the continuing Police investigation. The Council did not offer Ms C a carer's assessment to see what support it could give her in her unpaid caring role.
51. The Council’s actions leave Mr D and Ms C with uncertainty about whether the outcome might have been different had the Council sought more information/evidence on the support Ms C was providing, and if the transition to changes in support arrangements was better planned.
52. Ms C says the Council’s actions have caused her financial difficulty as she cannot seek paid employment whilst providing a high level of informal support to Mr D. I find that although the Council terminated Ms C’s employment, she also resigned. I understand Ms C had her reasons for this action, and she was not expecting to provide informal support for so long, but I do not find the Council’s actions caused her financial injustice. The Council has tried to source support for Mr D, but he has refused it as prefers support from Ms C. Therefore, Mr D’s actions contribute to the level of informal support Ms C chooses to provide. I also note the Council did approach Ms C to once again be a paid carer for Mr D, but at the time she could not commit regularly to the full support hours as was also providing informal support to another family member.
53. The Council did try to increase support to meet Mr D’s care and support needs, but he refused that support. Mr D had capacity to make those decisions, even if they are unwise. The Council could not force him to accept support. Mr D’s care and support is now being considered by the Court of Protection.

Safeguarding

54. The Council has a duty to protect vulnerable adults who are experiencing, or at risk of, abuse or neglect and cannot protect themselves. This is safeguarding.
55. The Council started a safeguarding investigation against Ms C because of concerns of controlling behaviour and not meeting Mr D’s care and support needs that she was being paid for. I cannot say this was fault.
56. I do not have evidence the Council then followed its safeguarding process to investigate the concerns. The Council withdrew the safeguarding action two months later because of a lack of evidence. The Council says on the balance of probability Mr D could have told Ms C he did not want the Council to have his telephone number. The Council felt it did not have proof to formally pursue the concerns of ‘coercion and control’. I find it is more likely than not the Council could have taken this decision much sooner and prevented some of Ms C’s anxiety and distress.

Keeping Mr D safe online

57. Ms C argues the Council did not do enough to keep Mr D safe online, and I agree. The Council’s review in July 2020 stated Mr D either needed constant supervision when online, or to have no internet connection at all. I have seen no evidence the Council took any action about this. It was seven months later the Council applied to the Court of Protection about removal of internet enabled devices, and that was triggered by Ms C’s actions rather than the Council’s findings at review. I find the Council should have acted sooner on the findings of its July 2020 review.
58. The Council said Ms C in her role as Mr D’s personal assistant was failing to stop Mr D offending. This was not part of the care and support plan so was not Ms C’s responsibility in her role as a paid carer. Ms C was employed 28 hours per week, which left Mr D plenty of free time to spend online. Ms C was not employed to watch Mr D 24 hours per day, nor should she be expected to. After the July 2020 review the Council reduced the care and support hours to 24.5 per week, which would leave Mr D more free time to spend online. If the Council wanted the care and support plan to distract Mr D from offending it should have included this within it and provided suitable support hours to achieve that.
59. Ms C queries whether the Council’s actions about Mr D’s internet usage is the least restrictive option. This is an issue that will be determined by the Court of Protection. I find no fault in the Council referring the matter to the Court to decide what is in Mr D’s best interests about his internet usage, though find this could have been done sooner.

Communication

60. I find the Council provided Ms C with explanations for its actions and tried to answer her concerns, but these were sometimes delayed and prompted by Ms C asking for them. I find there were times when Council staff did not respond to Ms C and she had to escalate her concerns to management.

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Agreed action

61. To acknowledge the impact on Ms C and Mr D, and to prevent future failings, the Council will:
• Apologise to Ms C and Mr D for not gathering information from Ms C for Mr D’s care and support review in July 2020, and for making changes to Mr D’s care package without sufficient transition planning. Apologise to Ms C for delays in the safeguarding process, and for not always responding to her correspondence promptly.
• To acknowledge the impact caused by its errors, pay Mr D £150 and Ms C £350.
• If it has not done so within the last year, offer Ms C a carers assessment. Ms C is entitled to this as an unpaid carer.
• Remind relevant staff that they must involve relevant carers, whether they are paid or unpaid, in adult social care assessments and reviews to gather all useful information available. This is in accordance with section 10.49 of the Care and Support statutory guidance.
62. The concerns about Mr D’s level of support, and how to keep him safe online, are being considered by the Court of Protection, so I make no recommendations on these issues.
63. The Council should complete the agreed actions within one month of the Ombudsman’s final decision and provide evidence of its compliance.

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Final decision

64. I have completed my investigation on the basis the agreed action is enough to acknowledge the impact on Ms C and Mr D, and to prevent future failings.

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Investigator's decision on behalf of the Ombudsman