Summary: Mrs B complains the Council declined to move her son, Y, to an appropriate placement closer to home, following concerns about his existing accommodation. She says the Council suggested accommodation that was not suitable or in line with professional advice. This led to Y living in his existing accommodation for longer than he should have done. The Ombudsman does not find fault in how the Council considered the suitability of accommodation or for delays in moving Y.

The complaint

1. The complainant, who I refer to as Mrs B, complains about the delays finding suitable accommodation for her son, Y. Mrs B says the Council agreed to Y needed to move accommodation. However, its offers of alternative accommodation were not suitable, or in line with medical advice and a statement of needs from his advocate. Mrs B says the Council also refused to move Y close to her home, and insisted he remain in its local authority area or a neighbouring area. She says the Council refused to look for specialist autism provision, which led to Y remaining at his existing accommodation for far longer than he should have done.

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The Ombudsman’s role and powers

2. 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)
3. We cannot question whether an organisation’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)
4. 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

5. I considered the information Mrs B provided and spoke to her about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mrs B and the Council for their comments before making a final decision.

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What I found

Law, Guidance and Local Policies

6. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person 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.
7. Councils’ responsibility for meeting a person’s eligible needs under the Care Act 2014 is based on the concept of ‘ordinary residence’. There is no definition of ordinary residence in the Care Act, therefore, the term should be given its ordinary and natural meaning. There may be some cases where the council considers it proper for the person’s care and support needs to be met by providing accommodation in another authority area. Section 39 to 41 of the Care Act and the regulations set out what should happen in these cases, and specify which council is responsible for the person’s care and support when they are placed in another council’s area.
8. The Care and Support (Disputes Between Local Authorities) Regulations 2014, set out the procedure councils must follow when disputes arise regarding a person’s ordinary residence. If, having followed the procedure set out in the dispute regulations, the authorities are still unable to resolve a particular dispute, the lead authority must apply for a determination to the Secretary of State or appointed person.
9. 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.
10. 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. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
11. 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.
12. The Care and Support and Aftercare (Choice of Accommodation) Regulations 2014 set out what people should expect from a council when it provides or arranges a particular type of accommodation for them. Where the care planning process has determined a person’s needs are best met in a care home, the council must provide for the person’s preferred choice of accommodation, subject to certain conditions. This also extends to shared lives, supported living and extra care housing settings.
13. The person has the right to choose between different providers of particular accommodation provided:
• the accommodation is suitable to meet the person’s needs;
• to do so would not cost the council more than the amount specified in the person’s personal budget for the particular accommodation;
• the accommodation is available; and
• the provider of the accommodation is willing to enter into a contract with the council to provide care at the rate specified in the person’s personal budget on the council’s terms and conditions.
14. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or in certain circumstances the resident is willing and able to pay the additional cost (‘top-up’).
15. The Care and Support Statutory Guidance says:
• ‘In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position... This includes the importance of ensuring that the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value.’
16. The Council has a Fair and Affordable Care Policy and a Choice in Care Policy. The Fair and Affordable Care Policy says the Council may take decisions on a case by case basis, which weigh up the costs of different potential care and support plans, to ensure best value is achieved. The Choice in Care Policy says the Council will consider the person’s preferences and consider how decisions are likely to impact the person’s wellbeing. It says the offer of preferred choice of accommodation is dependent on it being available at best value.

Background

17. Y’s primary diagnosis is autism. In 2012 Y moved to the Council’s area to attend a live-in college. Mrs B lives in a different council’s area.
18. At first, the other council (“Council B”), was responsible for Y. However, when Y left the college in 2015, a dispute developed between the two councils about whether Y was ordinarily resident in the Council’s area, in which case it would be responsible for providing services. The Council therefore agreed to provide services to Mr B on a non-prejudicial basis, while the dispute between the councils was ongoing. Because of the nature of the dispute, it involved the Secretary of State.
19. After leaving college, Y moved into two different shared placements, both of which broke down. The Council then moved Y into a ‘singleton’ supported placement in June 2017.
20. Y was meant to receive 24-hour support, including a 1:1 sleep-in support worker. Early on, however, there was an incident in which Y was left without a carer on site in the evening for two hours. Mrs B raised concerns about this with the Council, and the support provider agreed to reinstate the full 1:1 care until after a further assessment. There was also an incident in which Y suffered an injury on a day trip, which was reported to Council B’s safeguarding team.
21. The Council decided to complete a new care assessment and applied for an independent advocate for Y, as he did not have capacity to make decisions about his care. The Council arranged a meeting in July 2017, to discuss the assessment. Y’s advocate was not in place by this time, but Y’s parents attended the meeting, with social workers and managers from the existing supported accommodation. The Intensive Assessment and Treatment Team (“IATT”) from the NHS also attended the meeting.
22. Before the meeting, Mrs B told Y’s social worker that she was concerned about the care he was receiving and wanted Y to move back to placement close to her home. Mrs B says the social worker reacted aggressively and said she would only consider moving Y to a placement close to the Council’s area. Mrs B says the social worker said she would speak to Y’s GP and the Secretary of State.
23. The Council says the Secretary of State would not be involved in any decisions about specific care. It says there is no written record of the social worker referring to the Secretary of State. However, it apologises if any of its communication was unclear or perceived to be aggressive.
24. The Council provided Mrs B with its assessment shortly before the meeting started. It also sent a copy by email for her comments. The assessment recommended a reduction in Y’s support package, to 24 hours per week of 1:1 support. The assessment said this would enable Y to have more independence and privacy for the remainder of each day. The Council suggested that residential care may be an option to achieve this reduction in 1:1 support. It recommended Y live within a small group home with people of a similar age and disability, with communal areas where he was able to eat meals with others. Mrs B disagreed with the assessment reducing 1:1 supporting and said this would present a risk to Y. Mrs B also believed Y needed to be with a specialist autism provider.
25. Mrs B had another telephone call with Y’s social worker several days after the meeting to discuss Y moving closer to home. The social worker said any decision would need to be made as part of a best interest decision.
26. The Council then had a meeting with Y’s allocated independent advocate. Mrs B says the Council did not give her proper notice of this meeting. The Council says the meeting was only to discuss the current situation with the advocate and was not meant for wider attendees. The advocate arranged to visit Y on the same day.
27. The IATT also completed an assessment of Y. It said that living in a setting of multiple occupancy had been tried and was not a good environment for Y as he was sensitive to noise and busy environments. It recommended that new staff should complete specific training in autism and positive behavioural support planning. Also, that Y live within a small group home with people of a similar age and disability, with communal areas to have opportunities to engage and socialise, and personal areas where Y could break away and relax.
28. At a similar time, Mrs B told the Council about a potential placement she had found closer to where she lived. The Council said it agreed the current support was no longer suitable and it was trying to re-provision but that placing Y in a third county would greatly complicate the already ongoing dispute regarding funding.
29. The advocate completed a report in mid-September 2017. It said Y’s major need was his autism and this should be the priority consideration for staff skills needed in any placement. The advocate said there was little to suggest a reduction of his current care would benefit him and suggested this was reviewed once he was settled into a new place with trained staff. The advocate said the move to the Council’s area was due to education, which had now come to an end. Given Y’s close relationship with his parents the Council should consider and actively pursue a placement nearer to them.
30. In early October 2017 a social worker manager emailed Y’s advocate to say they needed Mrs B’s comments on the outcome statement, to send it out to brokers for placements. I cannot see from the documents provided when the Council received comments. However, another email in early October 2017 shows the social worker give a brief overview of two potential care providers closer to Mrs B. The social worker said she had requested further information but was still of the view it would be best to go to brokerage to see what the options were.
31. In November 2017 a personal broker sent out a tender to multiple providers, the responses for which were due a week later. The initial budget allocated was for £860 per week. The Council held a panel meeting in late November 2017 to discuss funding for a placement. The notes say the Council only received two responses to the tender. One was from Mrs B’s preferred provider but was significantly over budget at £2,700 per week. The other was from a provider that was within budget but no closer to Mrs B. The panel was held to request an increase in funding to £1,000 per week, so that a new outcome statement could go out for tender. The notes show the panel declined the additional funding.
32. In the notes for the panel, the social worker said they had taken account of information and evidence from Y’s parents and IATT. However, their assessment of the risks to Y differed from the IATT worker and parents. The social worker felt Y could be supported in a less restrictive way than 24/7 1:1 support.
33. In December 2017, the Council sent out another tender and had several responses. It narrowed this down to two options it considered appropriate. The social worker visited Mrs B’s preferred placement (“Placement A”) and another placement (“Placement B”) that was closer to Mrs B than the existing accommodation. The social worker noted that Placement B was slightly over the preferred distance to Mrs B but a reasonable distance.
34. The social worker noted that Placement A had two vacancies, one in a room in the main building and another in a self-contained flat with kitchenette. Placement A was a specialist challenging behaviour unit and all staff were trained in autism and learning disabilities. Placement B had one room available. There were two communal kitchens in the building and a sensory room and somewhere to retreat to if needed. Placement B did not currently have any other residents with autism, but staff had experience of previous residents with autism. Staff had a lot of experience with learning disabilities and relevant training in autism and supporting with challenging behaviour.
35. The Council held a further panel meeting to consider the two options. The social worker set out the options and noted that Placement A was Mrs B’s preference. The notes record that Placement A was around £2,700 per week and Placement B was £1,600 per week. The panel recorded that the social worker had found that Placement B met Y’s needs. It therefore declined funding for Placement A but agreed funding for Placement B.
36. Placement B arranged for Y and Mrs B to visit the accommodation in early January 2018 for an assessment. Mrs B says she did not agree the accommodation was suitable. She says Placement B had no exclusive space for Y. She says one of the other residents would often scream and Y would have found this very difficult. The Council says it did not receive any correspondence from Ms B to say that she disagreed that Placement B was suitable. It was aware Placement A was the family’s preference, but it decided on the most cost-effective option.
37. In February 2018, Mrs B emailed the Council to say that Y had been diagnosed with epilepsy and it would need to take this into account when deciding on the care setting. The Council updated the assessment and asked Placement B if it could still meet Y’s needs relating to epilepsy. Placement B provided further information about its staff’s experience and training in this area. The Council was satisfied Placement B could still meet Y’s needs and updated Mrs B.
38. In March 2018 Mrs B’s representatives wrote to the Council to outline her view that Placement B was not in Y’s best interests. They indicated Mrs B would take the matter to the Court of Protection (“CoP”), and in the meantime suggested a best interest meeting be held. The Council declined to hold a best interest meeting. It said that following a clear decision about the most cost-effective option that met Y’s needs, there was only one option available to Y so the Mental Capacity Act and CoP had no more place in determining the matter.
39. In March 2018 the Secretary of State determined that Y was an ordinary resident of Council B. Therefore, the Council informed Council B that it would stop funding Y’s care in early April 2018. Council B would become responsible for funding and decisions about Y’s placement from that point on. Council B appealed the decision. An appeal hearing was held in September 2018, which upheld the original decision that Y was always ordinarily resident in Council B’s area.
40. Council B took over responsibility for Y. Ms B says Council B agreed to fund Placement A.

Findings

41. I do not find fault in how the Council made its decision on the suitability of the placement or for delay in moving Y to new accommodation.
42. The Council accepted the existing accommodation was not suitable. It identified possible alternative providers and sent out a tender. As part of this it considered Mrs B’s preference for Placement A. It found that preference was significantly more expensive than other another option that it also considered were suitable. It held a panel meeting and decided to agree funding for Placement B instead, as it consider Placement B could meet Y’s needs in a more cost-effective way. The statutory guidance, as set out at Paragraph 15, is clear that councils do not always have to follow the person’s preference and can consider which option offers the best value, provided it meets the person’s needs. Therefore, I cannot find fault in the Council considering whether Placement B met Y’s needs for best value, and deciding to fund this rather than Mrs B’s preference of Placement A.
43. Mrs B disagrees that Placement B met Y’s needs. She says the Council ignored advice from IATT and the advocate, which showed Y needed a low arousal environment. She says Placement B had no exclusive space for Y and one of the people there would often scream, which Y would have found very difficult. She says Y was assessed as needing his own kitchenette and Placement B did not provide this.
44. I cannot see any correspondence in which Mrs B raised specific concerns about a resident screaming or the lack of exclusive space for Y. I also cannot see anything in the IATT or advocate assessments that says Y needs a separate kitchenette. The IATT report talks about a low arousal environment being beneficial to Y. However, the social worker set out how they considered the IATT report in the report to the panel and why they disagreed with the overall assessment of risk to Y.
45. I cannot criticise the merits of the Council’s decision, only consider whether there is fault in the way it went about making the decision. The Council has set out in detail the information it obtained from Placement B and why it considered that accommodation could meet Y’s needs. It has set out how it considered the views of Mrs B, IATT and the independent advocate and why it did not entirely agree with their assessment. It held a panel meeting and considered what the best value option was for meeting Y’s needs, which it was entitled to do in line with the statutory guidance. I cannot see evidence Mrs B raised specific concerns to the Council about the suitability of Placement B, so cannot find fault in the Council not taking those concerns into account. The Council properly followed its procedures and the statutory guidance in making its decision, therefore I do not find fault. I understand Mrs B disagrees with the decision it made but, again, I cannot criticise the merits of the decision.
46. Mrs B also says the Council declined to hold a best interest meeting. I cannot find fault on this. The basis of Mrs B’s concern that Placement B was not in Y’s best interests was that it was not suitable for Y. For the reasons already outlined I cannot find fault in how the Council reached the decision it was suitable. It was open to Mrs B to apply to the CoP as her representatives indicated was her intention. However, shortly after this responsibility for funding transferred to Council B.
47. I also cannot see evidence of delays in progressing finding new accommodation. Throughout the period from July 2017 to February 2018, it progressed the case by completing and obtaining the relevant assessments, contacting potential care providers, reviewing their suitability and making decisions about funding. From March 2018 onwards, responsibility for arranging the placement transferred to Council B. Therefore, I cannot find fault with the Council for any further delays in arranging a placement after this point.
48. Mrs B also raised concerns about the social worker reacting aggressively and saying they would only consider placements close to the Council’s area. I cannot make any findings about how exactly the conversations went between Mrs B and the social worker. I note the Council has apologised if there were any difficulties in communication. I can see a different officer from the Council said in an email that finding a placement in a third-party council’s area would complicate the funding dispute further. The funding dispute should not have impeded finding a suitable care provider for Y. However, I note the Council agreed to Placement B, which was in a different local authority area. And I cannot see any evidence that the location of Placement A was a factor in the Council’s decision not to award funding. It was purely the expense compared to Placement B, which the Council believed could meet Y’s needs for better value.
49. Mrs B also says the Council did not agree to provide a personal behaviour therapist for Y. I can see the IATT assessment recommended that new staff should complete training, including on autism and positive behavioural support planning. However, I cannot find there was any requirement on the Council to provide a specific positive behavioural therapist. Therefore, again I do not find fault on this point.

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Draft decision

50. The Council is not at fault in how it considered the suitability of accommodation for Y or for delays in moving Y to different accommodation.

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Investigator's decision on behalf of the Ombudsman