Summary: The complainant (Mr X) said the Council failed when preparing his care and support plans and reassessing his care needs between August 2020 and April 2021. He also complained about the Council’s refusal to refund the cost of his supported work placement, provide reasonable adjustments and its complaint handling. We found fault with the way the Council managed the various reviews and assessments. These failings caused Mr X an injustice. We did not find fault with other issues raised in this complaint or the failings found did not cause Mr X an injustice. The Council agreed to apologise and take action to remedy the personal injustice to Mr X. The Council also agreed to introduce a policy on communication principles with people for whom somebody else holds a Lasting Power of Attorney (LPA).

The complaint

1. Mr X represented by his mother Ms C says the Council failed in the process of preparing care and support plan for him in August 2020 by:
1. Failing to involve Mr X and his parents;
2. Arbitrarily reducing Mr X’s Personal Budget (PB);
3. Failing to include all Mr X’s needs identified in his care needs assessment and to specify how Mr X’s care needs would be met through a PB;
4. Not providing any support for Mr X’s employment needs.
2. Ms C also says the Council failed when reviewing Mr X’s care and support plan in October 2020 (a light-touch review) by:
1. Delaying preparing a report;
2. Carrying out Mr X’s care needs reassessment at the same time as the review of his care and support plan and, despite no change in Mr X’s care needs since his last assessment, failed to send the new needs assessment plan to Mr X and his advocates/carers;
3. Reducing Mr X’s PB while stating his care needs had not changed since his last care needs assessment;
4. Failing to involve Ms C and Mr C in the process while not providing Mr X with an independent advocate;
5. Failing to prepare a post–review care and support plan and send it to Mr X and his advocates/carers;
6. Allowing the same social care worker who was complained about to complete the review.
3. Ms C complains about the way the Council carried out Mr X’s Mental Capacity Assessment (MCA) in April 2021 and specifically:
1. Not telling Ms C and Mr C of their son’s MCA taking place;
2. Disregarding medical and psychological evidence
3. Failing to send it to Mr X and his advocates/carers.
4. Ms C complains about the Council’s refusal to refund the cost of Mr X’s work and fund it through direct payments.
5. Ms C also complains about the Council’s alleged failings to take into account Mr X’s substantial difficulties when involving him in carrying out its functions and to apply reasonable adjustments when communicating with Mr X.
6. Ms C raises the issue of the Council’s complaint-handling. She says the Council failed by:
1. Initially refusing to accept her complaint;
2. Appointing decision makers to deal with it.

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What I have and have not investigated

7. I have not investigated anything which happened before July 2020, although looked at the earlier events as the background for Mr X’s complaint. Ms C brought Mr X’s complaint to us in July 2021, therefore any issues raised about events which happened before July 2020 would be late and there is no good reason to exercise our discretion to investigate them. I mention certain earlier events as the background but my findings relate only to the Council’s actions from the care and support plan review in August 2020 until Mr X’s care and support plan review completed in November 2021.
8. Although the issue of the Council’s refusal to refund the cost of Mr X’s unpaid employment was not part of his original complaint, I decided to investigate it. The Council had an opportunity to investigate this matter and reply as we included it in our enquiries.
9. I have not investigated anything which happened around Mr X’s care and support plan review completed in November 2021 and any later events as they happened after Ms C complained to the Council and so the Council has not had an opportunity to respond.

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The Ombudsman’s role and powers

10. 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)
11. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
12. 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)
13. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
14. We cannot find that an organisation has breached the Equality Act. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act.
15. We cannot find that an organisation has breached the Human Rights Act. However, we can find an organisation at fault for failing to take account of its duties under the Human Rights Act.
16. If we are satisfied with an organisation’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

17. I spoke with Ms C and considered the information and documents she provided.
18. I considered the information and documents the Council provided.
19. I reviewed the Council’s complaint policy.
20. 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

Legal and administrative background

Councils’ statutory duties

21. When exercising their social care functions councils must follow the Care and Support Statutory guidance (Statutory Guidance) issued by the Department of Health and Social Care, which is based on the Care Act 2014, unless they have very good reasons not to.

Care and support plans

22. Councils have a legal responsibility to provide a care and support plan. 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. The support plan must 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. (Care Act 2014 Schedule 24)
23. The guiding principle for care and support planning is that the person be actively involved and is given every opportunity to influence the planning and subsequent content of the plan in conjunction with the local authority, with support if needed. (Care and Support statutory guidance paragraph 10.32)
24. In preparing a care and support plan councils must involve:
• The adult for whom it is being prepared;
• Any carer;
• Any person whom the adult asks the council to involve or, where the adult lacks capacity to ask the authority to do that, any person who appears to the authority to be interested in the adult’s welfare. (Care Act 2014 Schedule 25 (3))
25. Where a person has substantial difficulty in being fully involved in their care planning or lacks capacity to agree and consent to the care plan, they may be supported by family members or friends. If a person has no family or friend who is able to facilitate the person’s involvement available and willing to do so, then an independent advocate must be appointed. A friend or family member is not appropriate to facilitate the person’s involvement if the person has capacity to decide who they wish to support them and chooses not to be supported by that individual. (Care and Support Statutory Guidance 2014 paragraph 10.66)

Reviews

26. Councils should keep care and support plans under review. Councils should review plans at least every 12 months. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one. (Care Act 2014 Schedule 27, Care and Support Statutory Guidance 2014 paragraph 13.32)
27. Reviews will help to identify if the person’s needs have changed and can in such circumstances lead to a reassessment and other circumstances which may have changed. The review must not be used as a mechanism to arbitrarily reduce the level of a person’s personal budget. (Care and Support Statutory Guidance 2014 paragraph 13.5)
28. There are occasions when a change to a plan is required but there has been no change in the levels of need. In these circumstances it may not be appropriate for the person to go through a full review and revision of the plan. Councils should respond to these ‘light-touch’ requests in a proportionate and reasonable way. (Care and Support Statutory Guidance 2014 paragraph 13.6 and 13.7)
29. Councils must arrange an independent advocate to facilitate involvement of a person in the review of their care plan when:
• If an independent advocate were not provided, the person would have substantial difficulty in being fully involved, and
• There is no appropriate individual available to support and represent the person’s wishes who is not paid or professionally engaged in providing care or treatment to the person. (Care and Support Statutory Guidance 2014 paragraph 7.4)
• Councils cannot consider a relative an appropriate individual to support the person who has capacity and expressed their wish not to be supported by this relative. (Care and Support Statutory Guidance 2014 paragraph 7.34)
• It is the local authority’s decision as to whether a family member or friend can act as an appropriate person to facilitate the individual’s involvement. It is the local authority’s responsibility to communicate this decision to the individual’s friends and family where this may have been in question and whenever appropriate. The overall aim should be for people who need advocacy to be identified and when relevant, receive consistent support as early as possible and throughout the assessment, the care and support planning and the review processes. (Care and Support Statutory Guidance 2014 paragraph 7.40)

Personal Budget

30. The amount that the local authority calculates as the personal budget must be sufficient to meet the person’s needs which the local authority is required to meet under section 18 or 20(1), or decides to meet under section 19(1) or (2) or 20(6) and must also take into account the reasonable preferences to meet needs as detailed in the care and support plan, or support plan. (Care and Support Statutory Guidance 2014 paragraph 11.24)
31. In cases where making a direct payment is a more expensive option to meet needs, the care plan should be reviewed to ensure that it is accurate and that the personal budget allocation is correct. The authority should work with the person, their carer and independent advocate (if there is one) to agree on how best to meet their care and support needs. (Care and Support Statutory Guidance 2014 paragraph 11.28)

Direct payments

32. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs.
33. Councils must consider requests for direct payments made at any time and have clear and quick procedures in place to respond to them. After considering the suitability of the person requesting direct payments against the conditions in the Care Act 2014, the council must decide whether to provide a direct payment. In all cases, the council should consider the request as quickly as possible.
34. The council must provide interim arrangements to meet care and support needs to cover the period in question. Where accepted, the council should record the decision in the care or support plan. Where refused, the council should explain its decision in writing to the person who made the request. It should also tell the person how to appeal against the decision through the local complaints procedure. (Care and Support Statutory Guidance 2014)

Mental capacity assessment

35. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make 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.

36. A 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.
37. 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 the following:

• 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?

38. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
39. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

Reasonable adjustments

40. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any organisation which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
41. Service providers are under a positive and proactive duty to take steps to remove or prevent obstacles to accessing their service. If the adjustments are reasonable, they must make them.

Lasting Power of Attorney

42. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.

Social services complaints

43. Where a complaint is made about the social services to the council it should:
• Make a written record of the complaint and provide a copy to the complainant;
• recognise it within three working days, offering the time to discuss the complaint:
1. how the complaint will be handled;
2. the period within which the complaint is likely to be completed and the response is likely to be sent to the complainant. (The Local Authority Social Services and National Health Service Complaint (England) Regulations 2009 regulation 13)
3. Councils must designate a person to be responsible for ensuring compliance with the complaint arrangements under the Regulations as well as a complaints manager. The functions of this person and the complaints manager may be performed by any person authorised by the council to act on their behalf. (The Local Authority Social Services and National Health Service Complaint (England) Regulations 2009 regulation 4)
44. Councils must:
• Investigate the complaints in a manner appropriate to resolve it speedily and efficiently. The response should be sent within six months from the day when the complaint was received;
• Keep the complainant informed as to the progress of investigation. (The Local Authority Social Services and National Health Service Complaint (England) Regulations 2009 regulation 14)
45. When sending its response to the complainant the council should include information on the right to take the complaint to us. (The Local Authority Social Services and National Health Service Complaint (England) Regulations 2009 regulation 14 (2)(c))

What happened

Background

46. Mr X has severe mental impairment caused by an acquired brain injury and Autistic Spectrum Disorder (ASD). He struggles with complex or multiple instructions and has executive function difficulties. He also has some physical health difficulties, including corrected heart condition and chronic renal failure. In 2010 Mr X had a kidney transplant.
47. Adult Social Care involvement with Mr X started in 2012.
48. Ms C and her husband (Mr C) hold LPAs for Mr X both for Health and Welfare and Finance and Property matters.
49. From September 2013 to July 2016 Mr X attended a specialist residential college. Adult Social Care contributed towards the cost of Mr X’s residential placement for 38 weeks and set up a budget for the remaining 14 weeks of the year of £733.25 a week. This was paid by direct debit across a year at £197.41 a week. After finishing college, Mr X returned to his family home. He and his parents understood it was a short-term arrangement as they agreed Mr X should live independently. Mr X’s care and support plan was not reviewed when he started living at home and he continued receiving £197.41 a week through four weekly payments of £788.
50. In January 2019 the Council carried out a care needs assessment for Mr X. The Council found out:
• Mr X appeared to communicate well but his parents felt he lacked insight into his support needs. His cheerful personality might mask his significant difficulties;
• Mr X’s disabilities impacted on his ability to make decision. His parents felt he would need support when making decisions;
• When parents were not available to support Mr X he would need an independent advocate;
• During the assessment Mr X showed some capacity in the awareness of his care and support needs, he was also able to weigh up pros and cons of his potential new placement;
• Mr X’s parents believed he overestimated his abilities – the view which, they said, was supported by professionals including Educational Psychologist (EP) and Occupational Therapist (OT);
• Due to Mr X’s ASD and disabilities he needed to receive information at his level of understanding, in easy-to-read format and with other appropriate reasonable adjustments;
• A mental capacity assessment was required to assess Mr X’s understanding of the support he needed.
51. In the assessment report Mr X was allocated 14 hours divided into two days per week of 1:1 support for activities. This was to be reviewed. The Council specified Mr X’s individual indicative budget as £682.
52. Ms C told me after finishing the three-year course in a residential college and returning home Mr X had attended a local college for a year, after which he had completed a supported internship aimed at preparing Mr X for a paid employment. This training did not lead to an offer of paid work. Mr X was assessed by the Department for Work and Pensions as permanently unfit to work. From September 2019 to March 2020 Mr X did a traineeship which also did not lead to the paid job.

Care and support plan review in August 2020

53. In 2020 the Council found Mr X a Supported Living placement (the Supported Living placement) nearby his parents’ house. In the first week of July the provider of care for the Supported Living placement (the Care Provider) sent Mr X’s Social Worker (Social Worker 1) the weekly cost of the provision with seven hours of 1:1 support which totalled £708. This included support from a job coach for Mr X’s employment.
54. Ms C contacted the Social Worker before the end of July expressing her wish to be involved in preparing Mr X’s care and support plan. She wanted to ensure his PB would be enough to meet all his needs. She was concerned about the lack of Mr X’s participation in the process. Social Worker 1 sent Ms C the arrangements agreed with the Supported Living placement and explained that after six to eight weeks the Council would carry out a review of Mr X’s care and support plan in the new placement.
55. Six days before Mr X’s move to the Supported Living placement a meeting with his parents, the Supported Living Care Provider and the Council took place. The attendees discussed the details of the new support arrangements for Mr X. Ms C was not happy about reducing the number of individual support hours for Mr X from 14 to seven as she did not consider his needs could be met within these reduced hours. After this meeting the Social Worker 1 asked Ms C to send her and Mr X’s views on the proposed arrangements.
56. Mr X’s involvement with a specific traineeship scheme was mentioned in the support plan as well as his wishes for a job once the traineeship was completed. This was outdated information as in March 2020 Mr X completed his traineeship, which did not lead to a paid job.

Light touch review and reassessment of Mr X’s care needs

57. In September 2020 Mr X’s Social Worker changed. In October a new Social Worker (Social Worker 2) on a few occasions explained the purpose of the review to Ms C.
58. During a telephone conversation in mid-October Social Worker 2 got Ms C’s views on the support Mr X needed. When communicating about the review of Mr X’s care and support plan, Ms C asked Social Worker 2 to amend a part of Mr X’s care needs assessment of January 2019 by removing the statement that Mr X was independent in finding and undertaking employment. In mid-February Ms C asked for clarification that the Council would carry out a proportionate assessment of Mr X’s care needs rather than a complete reassessment.
59. As part of the review of Mr X’s care and support plan Social Worker 2 met Mr X in October and December 2020 and talked to him on the phone at the end of February 2021 and in mid-April 2021. Mr X:
• consistently expressed his satisfaction with the number of individual support hours he had;
• accepted he needed some prompting for every-day hygiene routine activities;
• was keen to restart his activities which were not possible because of the COVID-19 pandemic and
• was happy for the Council to contact him directly, saying that for big decisions he would ask others to be involved.
60. At the beginning of November 2020 Ms C sent Social Worker 2 her parental contribution to the review, a nursing assessment, one page profile and a hygienist’s advice. She was pleased Social Worker 2 met Mr X in person.
61. Responding to Ms C chasing the outcome of the review, Social Worker 2 confirmed they were reviewing Mr X’s care and support needs by using a strength-based approach rather than carrying out a new assessment. Once the report was completed it would be shared with Mr X and his parents.
62. At the beginning of March representatives of the NHS and Ms C took part in a meeting which contributed to the review of Mr X’s care and support needs and resulted in the NHS issuing Mr X’s Health Action Plan.
63. Social Worker 2 completed Mr X’s care needs assessment and support plan review on the same day in April as Mr X’s MCA took place. The relevant documents were issued two weeks later.
64. The assessment document mentioned Mr X’s parents had attended his assessment. Mr X was described as able to make his own decisions about whom he wished to attend meetings to discuss his care and support needs. The document clarified for any complex decisions about his care and support Mr X would need support in line with the Mental Capacity Act 2005.
65. Mr X’s support plan review stated he:
• needed appropriate, proportionate and practicable support to enable his full participation in discussions and decision-making. He would need support with making important decisions;
• could not access and engage in work or volunteering independently and would need supervision, direction and support;
• would need support with travel to and from the work place;
• was happy with the current 1:1 support for seven hours per week, an hour per day;
• expressed his interest in the supported work placement offered by the Council (Work Placement 1) and was placed on the waiting list;
• would start voluntary work (Work Placement 2) for one morning a week;
66. Social Worker 2 sent the care act assessment and the reviewed support plan to Mr X at the beginning of May.

Mental Capacity Assessment

67. At the end of April 2021 Social Worker 2 carried out Mr X’s MCA to find out his ability to make decisions on his care and support. Social Worker 2 held a face-to-face meeting with Mr X in the presence of the Care Provider’s Manager (Ms K).
68. The MCA report included:
• description of Mr X’s disabilities and medical conditions;
• details of LPAs held by Mr X’s parents;
• details of reasonable adjustments needed and applied for Mr X;
• Ms K’s views that Mr X had the ability to make decisions on his care and support needs.

Direct payments for meeting employment needs

69. In February 2021 Social Worker 2 contacted Work Placement 1 to check the details of its potential offer for Mr X. Work Placement 1 responded they had no available places but could put Mr X on the waiting list. The cost of a session at Work Placement 1 would be £50.
70. At the end of April Social Worker 2 asked Work Placement 1 to add Mr X to their waiting list.
71. Mr X was planning to restart his voluntary work in Work Placement 2 for one morning a week, which had to stop during COVID-19. At the end of June Mr X’s parents told the Council Work Placement 2 was not available any more for Mr X. The Council offered to refer Mr X to its employment and community services.
72. Mr X’s parents supported him in finding supervised work for three mornings with a different provider (Work Placement 3). Mr X started Work Placement 3 in August 2021.
73. Several times from the end of September 2021 and throughout October Ms C asked the Council to refund the costs of support provided to Mr X at Work Placement 3 from the date when he started working there. She told the Council the cost was £16 per session. Ms C argued these were the costs of meeting his employment needs which would have otherwise been unmet.
74. The Council refused to pay the costs of Mr X’s work in Work Placement 3. It said Mr X’s employment needs could be met at no extra cost to the Council through its Wellbeing and Employment service. The Council offered to make a referral but Mr X’s parents discarded this option. The Council also mentioned Mr X was on the waiting list for Work Placement 1.

Complaint

75. At the end of March 2021 Ms C raised concerns with the Council about:
• a false statement in Mr X’s care needs assessment of January 2019 which was contradictory with other parts of the document;
• unsatisfactory support for Mr X since he moved to the Support Living placement;
• not sufficient PB in the care and support plan of August 2020 without any reference to Mr X’s care needs assessment;
• no individual support available for Mr X in the evenings to attend events and complete activities;
• delays in reviewing Mr X’s care and support needs following the review in October 2020;
76. Having received no response, Ms C wrote to the Director of Adult Services. The Director clarified why the Council had failed to respond to Ms C’s complaint. During a telephone conversation with Mr X, Social Worker 2 found out Mr X was not aware of his parents complaining on his behalf. Mr X did not wish to give his consent for the complaint.
77. Ms C was not happy that her complaint had not been formally considered by the complaint team and Mr X had not had an independent advocate to support him during a telephone conversation with Social Worker 2.
78. At this stage the Council carried out Mr X’s MCA – see the paragraphs 67 to 68 of this decision.
79. In the second week of May Social Worker 2 again discussed with Mr X the complaint lodged by his parents. Mr X seemed to understand the content of the complaint and was firm he did not want the Council to continue with it. Mr X disagreed with his parents’ view he needed more support.
80. A week later the Council refused to consider Ms C’s complaint because of the lack of Mr X’s consent. Ms C stated she had received a verbal consent from Mr X. Besides she was concerned Mr X had not had an independent advocate and the Council had failed to apply reasonable adjustments when getting his views on the complaint.
81. At the beginning of June Mr X sent a letter to the Council giving consent for his parents to act on his behalf when complaining to the Council. He also asked for a weekly plan of activities and raised the issue of the lack of two days of 1:1 support.
82. The Council held a meeting with Mr X’s parents at the end of June to discuss Ms C’s complaint. Ms C recognised she had received some outstanding paperwork before the meeting but said she was not happy with how the Council had carried out Mr X’s MCA. She mentioned Work Placement 2 was no longer a possibility for Mr X so Ms C asked the Council for more information on work opportunities.
83. At the end of July the Council recognised Ms C’s complaint, made for Mr X and said it would respond by mid-August.
84. In its response sent two weeks after the due date the Council apologised for the delays in progressing Mr X’s review and ineffective communication but did not uphold the rest of the complaint.
85. In mid-September Ms C complained about Mr X’s MCA and in particular lack of independent support and lack of parental involvement when carrying out this activity.
86. When expressing her dissatisfaction with the Council’s response to her complaint Ms C raised again the issue of the Council’s alleged failings about the April 2021 MCA. She was also concerned about the delays in considering her complaint.
87. The Council issued its response, not upholding Ms C’s complaint about Mr X’s MCA in mid-October, but Ms C received this at the end of November.
88. In the third week of April 2022 Ms C extended her complaint about the Council to include the Council’s refusal to refund Mr X’s costs of work from August 2021.

Events relevant to assessing injustice

89. The Council assigned a new Social Worker (Social Worker 3) from mid-July 2021. After Mr X had sent a letter to the Council asking for more support, providing him with assistance to go swimming and a weekly timetable of activities, Social Worker 3 arranged to meet him to discuss his requests and to consider the need for an independent advocate for him.
90. At the meeting which took place in Ms K’s presence at the end of September, Mr X said he was happy with his support and did not wish to have any more activities, including swimming.
91. Following discussions with Ms C the Council referred Mr X to the Independent Advocacy Service at the beginning of October 2021. Three weeks later an advocate met Mr X and discussed his needs with him. The Council appointed the advocate for Mr X to help and support him at the next care and support review meeting. In the second week of November Mr X contacted the Council advising that back in July 2021 he had said he had not wanted or needed an advocate. After this communication the Independent Advocacy Service closed the case.
92. In the third week of November 2021 the Council issued a reviewed support plan. It provided Mr X with PB of £708, which consisted of core hours, sleep hours and seven hours of 1:1 support weekly. Ms C told me she was not aware of any reviews of Mr X’s care and support plan taking place after April 2021.

Analysis

Care and support plan review in August 2020 – paragraph one

93. During Mr X’s care and support plan review the Council failed to involve Mr X and his parents by discussing with them details of the support arrangements for Mr X in the Supported Living placement. This is fault. Although Mr X, Mr C and Ms C knew the content of the reviewed care and support plan, as they met with Social Worker 1 in August 2020, they had little opportunity to contribute to it.
94. This caused Mr X and Ms C injustice as it did not allow Ms C to challenge amendments to Mr X’s support arrangements and adjustments to his PB. The impact on Mr X of the Council’s failing was limited for the following reasons:
• Mr X’s needs had not changed, as confirmed by Ms C, since his assessment in January 2019;
• The Council intended to carry out a light-touch review within six to eight weeks from the date of Mr X’s move to the Supported Living placement, which meant Mr X and Ms C could address any potential flaws of the plan within a short period of time from its issuing. Mr X and his parents were aware of that.
95. The evidence does not support Ms C’s claim the Council arbitrarily reduced Mr X’s PB in his care and support plan issued in August 2020. The Council amended Mr X’s PB because of the change of his support arrangements but it was still higher than the indicative PB included in Mr X’s care needs assessment of January 2019 of £682. Mr X’s support changed in line with his new accommodation, which he would share with three other people, having a member of the Supported Living placement staff available all the time with 1:1 support for seven hours a week.
96. There was no fault in the way the Council listed Mr X’s eligible needs in his care and support plan with the outcomes for him to achieve and the allocation of resources to meet these needs. The Council followed the steps we expect, considering the need for flexibility of 1:1 support for Mr X.
97. The Council considered Mr X’s employment aims. The plan provided for support with voluntary work to address Mr X’s eligible need. Mr X’s PB included support from a job coach.
98. All Mr X’s care needs, named in his care needs assessment of January 2019, were matched with the support arrangements in his care and support plan. The need for a new health action plan was also mentioned as well as the need to help manage Mr X’s health and medical appointments.

Light touch review and reassessment of Mr X’s care needs – paragraph two

99. When carrying out a light-touch review and reassessment of Mr X’s care needs the Council failed by:
• Extending the process throughout six months and delays in issuing a reviewed care needs assessment and care and support plan. In its response to our enquiries the Council explained the light-touch review for Mr X was delayed because of the difficulties in getting Mr X’s real views as well as the absence of the member of staff. These reasons cannot excuse the process lasting six months. This is fault. The delay did not cause injustice to Mr X, though, as Mr X’s needs and the level of support to meet them remained the same.
• Delay in sending Mr and Ms C post-review and reassessment documents. Even though the Council might have queried the appropriateness of Mr and Ms C supporting Mr X when expressing his views and wishes, as holders of LPAs they should have been provided with all the documents and information which law and Statutory Guidance prescribes to be provided to the service users and their representatives. On some occasions the Council considered it was sufficient to contact Mr X directly as he had been assessed to have mental capacity to make decisions about his day-to-day care and support. At the same time, however, the Council recorded Mr X’s need for support when making complex decisions. Therefore it would be unreasonable to assume Mr X had capacity to have a general oversight of his support arrangements and, as the holders of the registered LPAs for Mr X, his parents should have been given the information to allow them this oversight. Moreover there is no record of the Council checking Mr X’s ability to conduct his affairs independently, including any possible legal challenge if things went wrong, and for such matters the LPAs holders would have the powers to represent him. The Council’s failing to consistently send Mr and Ms C documents about Mr X was fault, which caused him and them injustice. The Council’s failing made it impossible for Mr and Ms C to challenge the content of the documents at the time, they caused damage to their and Mr X’s relationship with the Council and caused distress.
• Not providing Mr X with a suitable independent person to support him during the review of his support. During the light-touch review and the re-assessment of Mr X’s care needs the Council decided it would not be appropriate for Ms C to help Mr X as she was expressing her views on the support he needed which seemed to differ from his wishes. Besides Mr X said he did not wish to always involve his parents. In such circumstances it was legitimate for the Council to try to find a different help for Mr X. By looking for it the Council seemed to have accepted Mr X would have substantial difficulty in being fully involved in the review and reassessment without any support. The Council secured help from the Supported Living placement Manager. As explained under paragraph 29 of this decision anybody who is paid or professionally engaged in providing care or treatment to the person cannot support and represent them. The Council’s failure to find proper support for Mr X is fault and it caused him injustice. Although his support arrangements did not change significantly in relation to his care and support plan from August 2020, the plan issued in August had been agreed to be a temporary one as Mr X and his parents were not fully engaged in preparing it. The lack of suitable representation throughout the review process caused uncertainty whether the plan correctly identified support arrangements needed by Mr X to address his needs in the Supported Living placement.
100. Ms C disputed whether the telephone communication between Social Worker 2 and Mr X, mentioned in paragraph 59 of this decision, had taken place as the Supported Living placement did not confirm this had happened. Having reviewed the Council’s case notes I consider it is more likely than not, on the balance of probabilities, that these telephone conversations have taken place. Besides, in the first months of 2021 whenever the Council contacted Mr X in the absence of his parents, he consistently stated his position on the level of support he needed.
101. Ms C objected to the Council reassessing Mr X as part of his light-touch review. She said it was disproportionate as Mr X’s care needs had not changed since January 2019. In the autumn of 2020 she did, however, asked for the assessment plan to be amended by removing comments on Mr X’s ability to independently access employment. I do not find fault in carrying out a reassessment of Mr X’s care needs as part of the light-touch review. Although Mr X’s care needs might not have changed, he moved to the Supported Living placement, and new challenges of identifying his desired outcomes for support as well as defining his needs in the context of a new placement could justify the reassessment. Moreover Ms C asked for Mr X’s care needs assessment to be amended, which prompted Social Worker 2 to carry out reassessment, using a strength-based approach as explained to Ms C. In such circumstances I do not consider the Council acted unreasonably when it carried out a reassessment of Mr X’s care needs.
102. Although I did not find fault with the Council for carrying out a reassessment of Mr X’s needs, the failings with Mr X’s support during his interactions with the Council described under the final bullet point in paragraph 99 apply in the same way to the light-touch review and the reassessment process.
103. Ms C complained about the statement used in the reassessment document that Mr X’s parents attended his assessment. Although it lacked precision and could be seen as misleading, this statement reflected parental involvement and contribution to Mr X’s reassessment as specified under paragraphs 57 to 62 of this decision.
104. I cannot criticise the Council for continuing Social Worker 2’s involvement with Mr X. The Council is accountable for how its staff performs its functions under the Care Act 2014, but it has flexibility when allocating cases to the members of its teams. If there were any specific concerns about the conduct of a particular member of staff, this should have been addressed separately and Social Work England would be better placed to consider such concerns.

Mental Capacity Assessment – paragraph three

105. Similar to the failings identified under paragraph 99 I found fault with the Council for:
• Lack of notice given to Mr and Ms C as the holders of LPAs for Mr X;
• Lack of appropriate support for Mr X during MCA – see comments under the final bullet point in paragraph 99.
106. The Council’s fault caused injustice by further damaging the relationship between Mr and Ms C and subsequently Mr X and the Council. As noted by the Council in the autumn 2022, strained relationship between Mr X’s parents and the Council had a negative effect on Mr X.

Direct payments for meeting employment needs – paragraph four

107. Mr X’s need for support with work or employment was identified in his care and support plan of August 2020 and the reviewed plan issued in April 2021. After making enquiries in February 2021 with Work Placement 1, at the end of April Social Worker 2 enrolled Mr X on the waiting list for this placement.
108. The Council refused to fund Mr X’s supported work at Work Placement 3, offering to refer Mr X to its employment and community services through which Mr X could access work placements without additional costs.
109. Although Ms C did not consider this option as viable due to Mr X’s inability to undertake paid employment, the Council followed the correct process by considering Ms C’s request, providing its response without unreasonable delay and explaining why it refused Ms C’s request. As there was no fault in how the Council made its decision, we cannot criticise the actual decision made about direct payments.
110. I recognise, however, the Council’s failings listed in paragraphs 93 and 99, which contributed to the deterioration of communication between the Council and Mr X’s parents, might have had a negative impact on the process of identifying support to meet Mr X’s eligible needs for employment. It would be advisable, therefore, to revisit this matter during the next care and support plan review for Mr X.

Reasonable adjustments – paragraph five

111. Mr X’s care needs assessment plan of January 2019 contained a list of reasonable adjustments to ease his access to the Council’s services. These were also included in his care and support plans.
112. The evidence available, in particular meeting notes and case notes, show members of the Council’s staff considered adjustments when communicating with Mr X and specifically:
• Sent him questions before meetings;
• Provided him with the advances notice of meetings and asked whether he wanted anybody to support him at these meetings;
• Considered using easy-read script;
• Made effort for Mr X to know members of staff who represented the Council and feel at ease with them;
• When talking to Mr X at every stage checked his understanding.
113. I found no fault by the Council in its consideration of reasonable adjustments. When communicating with Mr X it acted in the way we would expect to overcome any obstacles Mr X might have in using the Council’s services.

Complaint – paragraph six

114. There were some delays in acknowledging Ms C’s complaints and communicating the Council’s plan how to handle them. The evidence shows some of the delays were caused by the Council trying to find out whether Mr X had mental capacity and if so, whether he had given his consent to Ms C to bring the complaint on his behalf.
115. When checking Mr X’s mental capacity and getting his views on the complaint the Council failed to ensure he was supported by an independent person, who would not be paid or professionally involved in providing care or treatment to Mr X. This is fault. It did not cause injustice to Mr X, however, as after the change in Mr X’s position, the Council carried out its investigation.
116. When dealing with Ms C’s complaints the Council failed by:
• Delays in acknowledging her complaints and providing its response;
• Advising her of her right to complain to us.
117. Although the Council’s failings amount to fault they did not cause Mr X’s injustice as:
• The delays were not significant;
• Both complaints were investigated and responded to within six months;
• Ms C brought her complaint to us in July 2021, so she was aware of her right to take her complaint further if unhappy with the outcome of the Council’s investigation.

Human Rights

118. Ms C said the Council breached Mr X’s human rights by its failing to:
• ensure Mr X’s participation in his care arrangements review;
• notify her and her husband, as Mr X’s carers and holders of LPAs, of the meetings and decisions;
• ensure appropriate support for Mr X during telephone calls and at the meetings.
119. As explained under paragraph 15 we cannot decide whether the Council breached the Human Rights Act when performing its functions for Mr X under the Care Act 2014. I have, however, looked whether the Council failed to take account of its human rights duties. I do not consider the Council was at fault because:
• despite its failings in ensuring appropriate support the Council was engaging with Mr X and made efforts to provide him with support;
• there is no evidence the Council deliberately withheld information and documents from Mr X, Ms C and her husband.

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Agreed action

120. To remedy the injustice caused by the faults identified, we recommend the Council within four weeks of my final decision complete the following:
• Send a written apology to Mr X and Ms C;
• Prepare, share with Mr X and his parents as well as place on Mr X’s records a plan, specifying:
1. what Mr X’s parents are entitled to under Lasting Power of Attorney they hold for him;
2. which decisions Mr X must be supported with;
3. the process of identifying an appropriate person to support Mr X when the Council does not consider Mr C or Ms C would be appropriate;
• Pay Mr X £300 to acknowledge distress caused to him by the Council’s failings.

The Council should provide us with evidence it has complied with the above actions.

121. We also recommend the Council within four months of the final decision complete the following:
• Carry out a Mental Capacity assessment for Mr X following the Mental Capacity Act 2005 before the next review of his care and support plan;
• Review the reassessment of Mr X’s needs document dated 4 May 2021 ensuring during this process Mr X is supported either by his parents or an appropriate person;
• Review Mr X’s most recent care and support plan ensuring during this process Mr X is supported either by his parents or an appropriate person. The review will include discussions on the support arrangements to meet Mr X’s employment and health needs.
122. We also recommend the Council within six months of the final decision introduce a policy, clarifying communication principles when providing social care services to people for whom others hold a Lasting Power of Attorney.
123. The Council should provide us with evidence it has complied with the above actions.

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Final decision

124. I uphold part of this complaint. I found fault with the way the Council carried out Mr X’s review of care and support needs, light-touch review, reassessment of his needs and his mental capacity assessment as well as how it shared the documents. These failings caused Mr X injustice. I also found fault with the complaint handling but these failings did not cause him injustice. I did not find fault with the remaining issues of Mr X’s complaint. The Council has accepted my recommendations, so this investigation is at an end.

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Investigator's decision on behalf of the Ombudsman