Summary: Mr and Mrs C complained about the way the Council dealt with concerns its care provider was not meeting their son’s communication needs, falsifying documents relating to his mental capacity assessment and allowing financial abuse to continue. They say their son was put at avoidable risk of harm and financial abuse and they remain anxious about his care and suffered unnecessary distress. We have found fault by the Council in the way it dealt with a safeguarding enquiry but consider the agreed action of an apology, £200 and review of procedure provides a suitable remedy.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs C, complain the Council has failed to properly investigate and take appropriate action in response to their concerns about its care provider from May 2020. In particular, that the care provider is not meeting their son (X’s) communication needs, falsified documents relating to his mental capacity assessment and allowed financial abuse to continue.
2. Mr and Mrs C say because of the Council's fault, their son was put at avoidable risk of harm and financial abuse and they are anxious about his care and have suffered unnecessary distress.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. Part 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
6. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
7. 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

8. I read the papers provided by Mr and Mrs C and discussed the complaint with them. I have also considered information from the Council and provided a copy of this to Mr and Mrs C. I have explained my draft decision to Mr and Mrs C and the Council and considered the comments and further information received before reaching my final decision.
9. I have exercised the discretion available to me to investigate events from May 2020 although Mr and Mrs C did not complain to the Ombudsman until April 2022 as the matters were ongoing.

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What I found

Background and legislation

Mental capacity

10. 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.
11. 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.
12. 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?

13. 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.
14. 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.

Safeguarding

15. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

Key events

16. Mr and Mrs C’s son X lives in a supported living property commissioned by the Council.

Communication needs

17. Makaton is a language programme that uses symbols, signs and speech to enable people to communicate. Mr and Mrs C raised a specific concern with the Council in March 2021 that X was becoming deskilled in his use of Makaton.
18. A referral was made to the Council’s Speech and Language Therapy (SLT) service in July 2021. It was noted there had been a significant amount of previous speech and language assessment and this information was reviewed.
19. A therapist visited X in August to both observe X and discuss communication with staff at the home. The therapist noted that they when they used Makaton signs X would respond with speech and he also used and was able to understand Makaton signs and used writing on one occasion. The therapist assessed that X was able to use speech, writing and Makaton to communicate his needs and that he understood Makaton signs, writing and speech. It was noted staff should use an animated tone of voice and humour to build rapport with X.
20. It was noted that X had a good rapport with staff and they were using strategies to support his communication and were trained in Makaton. It was considered that no further assessment or intervention was needed but the therapist provided guidelines to help staff to continue to build rapport with X.
21. I have found no evidence of fault in the way the Council responded to Mr and Mrs C’s concerns about X’s communication needs.

Mental Capacity Assessment

22. The provider emailed Mr and Mrs C in early May 2020 to say it had carried out a Mental Capacity Act assessment (MCA) with X in April. This did not relate to a specific decision but was looking at whether X understood the concept of harm from an illness (COVID-19). The document recording the best interest decision says that a manager and Mr and Mrs C attended the assessment.
23. Mr and Mrs C raised concerns with the provider on receiving a copy of the assessment. The provider provided a response in July and apologised for the delay. The provider explained the assessment had been completed remotely by a worker who was shielding with the help of care staff with X. The provider accepted the assessment should not have been signed as complete without the involvement of Mr and Mrs C and should not have listed them as participants. The provider also provided details of the Makaton training given to staff and that additional training was being arranged. The provider provided a further response under its complaint procedure in November.
24. Mr and Mrs C raised concerns with the Council towards the end of 2020 about the care and support their son X was receiving. Mr and Mrs C also raised concerns in January 2021 about the MCA and the provider falsifying the document.
25. The Council contacted the provider in January and subsequently raised the issue with its Care Quality Team. The provider explained Mr and Mrs C’s names had been included on the document in advance and the person completing the assessment had forgotten to delete these. The Council considered there had not been a deliberate attempt to mislead but that there was a fundamental lack of understanding about MCAs by the provider. It was noted there had been no need to complete an assessment or best interests decision in the particular circumstances. The Council provided updates to Mr and Mrs C in March and April.
26. The Council agreed a number of actions with the provider including a review of all MCAs to ensure they followed the correct process and contained the correct details, the provision of MCA training and support and advice from its MCA team. The Council provided an update to Mr and Mrs C about the actions taken in May and that these would be monitored by its Care Quality team. This confirmed the provider had accepted it was at fault in including them as being present and set out the explanation provided. The Council noted the provider had already provided an apology which Mr and Mrs C had not accepted.
27. Based on the information provided, I am satisfied the Council took reasonable and proportionate action in response to Mr and Mrs C’s concerns about the MCA documentation. It is appreciated that Mr and Mrs C would have preferred the Council to take formal action against the provider but this is not in itself evidence of fault.

Financial abuse

28. The provider contacted the Council in May 2020 to say Mrs C had advised there were some fraudulent transactions on X’s bank account. The provider could not provide further information as the bank statements were sent to Mrs C. It was noted that the provider supported X to withdraw his weekly budget from the bank to shop but could not do so the last time as the card did not work. There were also more general concerns about the management of X’s finances.
29. The Council raised a safeguarding alert for potential financial abuse and made enquiries under section 42 of the Care Act 2014 to decide if action was needed to protect X from abuse.
30. The Council telephoned Mr and Mrs C in May to discuss the concerns about unauthorised purchases on X’s account which they had reported to the provider. The Council explained the safeguarding process and suggested Mr and Mrs C notify the bank and police in relation to any fraudulent use of X’s finances. The Council also sought further details from Mr and Mrs C about the detail of the allegations.

31. The Council noted that X’s finances were not under the sole control of the provider. Although the provider had arrangements to manage X’s benefits as Appointees, it did not have control over his bank accounts which made financial management difficult. The family had moved money into other accounts without advising the provider or the Council. The Council reviewed the bank statements and concluded there was no evidence of fraudulent activity by the provider.
32. The Council decided in July 2021 not to proceed further with the safeguarding enquiry.
33. The Council has acknowledged that there was a significant delay between the concerns being raised and the decision not to proceed with the Section 42 enquiry and this could have been better communicated with Mr and Mrs C. I consider this constitutes fault which will have caused Mr and Mrs C a degree of uncertainty and time and trouble in making a complaint.
34. The Council has confirmed it had wider concerns about how the provider had implemented and managed the systems they had put in place to manage X’s benefits and payment and whether there was effective and timely management of his day to day finances through its Client Premium Account into which X’s benefits were paid and bills paid out.
35. The Council discussed the provider relinquishing their role as appointee for X and if Mr and Mrs C would consider taking this role on themselves or using a third party to do so. Mr and Mrs C did not wish to take on the role and costs involved in using a third party were considered to be prohibitive. The Council has worked with other family members.
36. During this period the provider advised it was considering moving away from acting as appointees for all their clients. The Council put them in contact with another provider who had recently been through the process of relinquishing appointeeship. This matter is ongoing.
37. The provider contacted the Council in July 2022 to say Mrs C has questioned the withdrawal of £200 from a cash point in May after checking X’s bank statements. This issue was raised after Mr and Mrs C’s complaint to the Ombudsman and was ongoing when the Council responded to my enquiries. As such it has not formed part of my investigation.

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Agreed action

38. The Council will take the following action to provide a suitable remedy to Mr and Mrs C:
1. write to Mr and Mrs C within one month of my final decision to apologise for the delay and its communication when dealing with the safeguarding report from May 2020 about X’s finances;
2. pay Mr and Mrs C £200 for their uncertainty and time and trouble in making a complaint within six weeks of my final decision; and
3. review its safeguarding process within three months of my final decision to ensure it provides a timely response to future reports and communicates the outcome with clear reasons to affected parties.
39. The Council should provide us with evidence it has complied with the above actions.

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Final decision

40. I have completed my investigation as I have found evidence of fault by the Council but consider the agreed actions above provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman