Decision : Upheld
Decision date : 23 Aug 2023
Ms Y complained the Council failed to arrange the necessary support to help meet Mr Z’s social care and housing needs. As a result, she says Mr Z’s health and wellbeing rapidly deteriorated, and he was eventually detained in hospital under the Mental Health Act 1983 (MHA).
The Ombudsman’s role and powers
2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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 may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by their personal representative (if they have one), or someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)
Adult social care
4. 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.
5. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
Section 6 of the Care Act 2014
6. Section 6(4)(b) of the Care Act 2014 places a duty on councils to ensure co-operation with housing. Paragraph 15.23 of the Care and Support Statutory Guidance’ (CSSG) says, “Local authorities must make arrangements to ensure co-operation between its officers responsible for adult care and support, housing, public health and children’s services” and paragraph 15.24 says, “… it is important that local authority officers responsible for housing work in co-operation with adult care and support, given that housing and suitability of living accommodation play a significant role in supporting a person to meet their needs and can help to delay that person’s deterioration”.
7. The Mental Capacity Act 2005 (MCA) is the framework for acting and deciding for people who lack the mental capacity to make certain decisions for themselves. The MCA (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.
8. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established that 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.
9. Councils 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. 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?
10. 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.
Best interest decision making
11. A key principle of the MCA is that any act or decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker must consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the MCA provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
Independent Mental Capacity Advocate (IMCA)
12. The Mental Capacity Act: Code of Practice describes an IMCA’s role as one which will “… provide independent safeguards for people who lack capacity to make certain important decisions and, at the time such decisions need to be made, have no-one else (other than paid staff) to support or represent them or be consulted”.
13. The MCA Code says an IMCA may be instructed to support someone who lacks capacity to make decisions concerning care reviews, where no-one else is available to be consulted. This is echoed in paragraph 6.11 of the CSSG, which says, “An individual may be unable to request an assessment or may struggle to express their needs. The local authority must in these situations carry out supported decision making, helping the person to be as involved as possible in the assessment, and must carry out a capacity assessment. The requirements of the Mental Capacity Act and access to an Independent Mental Capacity Advocate apply for all those who may lack capacity.”
14. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. Councils must notify the applicant of the assessment. Councils should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help the applicant keep or secure suitable accommodation. These steps should be tailored to the household, and follow from the findings of the assessment, and must be provided to the applicant in writing as their personalised housing plan. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)
15. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation. This is referred to as’ the main housing duty’. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)
16. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household. This duty applies to interim accommodation and accommodation provided under the main homelessness duty. (Housing Act 1996, section 206 and (from 3 April 2018) Homelessness Code of Guidance 17.2) Councils should avoid using bed and breakfast accommodation. It should only be used as a last resort in an emergency and then for the shortest time possible. (Homelessness Code of Guidance paragraph 17.24 and from 3 April 2018 17.30)
17. Homeless applicants may request a review of the suitability of accommodation offered to them after the main housing duty has been accepted. Applicants can request a review of the suitability of accommodation whether or not they have accepted the offer and should do so within 21 days of the offer letter.
18. Our ‘Guidance on Jurisdiction’ says, “Even if there is a right of appeal, reference, review or remedy by way of proceedings in any court of law, s26(6) contains a “proviso” that the Ombudsman may conduct an investigation if in the particular circumstances it is not reasonable to expect the person to resort to it.
19. The guidance says, “In each case it must be considered carefully, taking account of all the circumstances of the complainant and the facts of the complaint. Discretion must not be exercised (or not exercised) “automatically” and in every case the question to be asked is “Is it reasonable to expect this complainant in the circumstances of this case to use the alternative right or remedy?”
20. The Human Rights Act 1998 (HRA) sets out the fundamental rights and freedoms that everyone in the UK is entitled to including: the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education.
21. The HRA requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights. Not all rights operate in the same way. Instead, they break down into three separate categories.
Absolute rights: those which cannot be taken away under any circumstances.
Limited rights: those that can be taken away in certain circumstances.
- Qualified rights: those rights where interference may be justified to protect the rights of others or wider public interest. Note that any interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.
22. Our remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act (1998) – this can only be done by the courts. But we can decide whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
23. We consider Article 8 of the HRA: ‘right to respect for your private life, your family life, your home and your correspondence’ is engaged during the matters complained about.
24. We produced this report after examining relevant documents and information, including:
Ms Y’s written complaint to us and any supporting information she provided, including emails with the Council;
the responses to Ms Y’s complaint made to the Council;
information provided by the Council in response to our written enquiries;
any relevant law, guidance or procedures as referred to in this report; and
our internal guidance, such as our Guidance on Jurisdiction and Guidance on Remedies.
25. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments we received were taken into account before the report was finalised.
26. Ms Y complained about the lack of support given by the Council to her brother, Mr Z, when he had early onset dementia. Ms Y represented the complaint on behalf of Mr Z because at the time of making the complaint, he had limited cognition and was non-verbal. During this investigation Mr Z sadly died.
27. The records show the Council first became aware of Mr Z’s potential support needs on 4 October 2021 when his GP made a referral to social services due to Mr Z’s vulnerability and increased confusion. The GP explained that Mr Z was homeless and living in hotels funded by his father and ex-partner who was also helping him to apply for relevant welfare benefits.
28. The following day a housing officer contacted Mr Z by telephone to complete a housing assessment. This concluded that Mr Z was vulnerable, had health needs and required immediate assistance with housing. The Council decided it was necessary to arrange and fund a hotel stay for one night, after which point Mr Z would need to move to a local hostel for interim accommodation.
29. Mr Z refused the Council’s offer of interim hostel accommodation and said he would prefer to sleep in his car until the Council found permanent housing. Mr Z told the Council that his father had paid for a hotel room until 8 October 2021. The records show the Council agreed to fund an extended stay until 18 October.
30. On 18 October the Council planned for Mr Z to move into an emergency refuge placement in a setting which is managed 24 hours a day. The housing officer emailed the Council’s social care department to relay the news and to express that Mr Z may need social care support in the longer term.
31. Mr Z attended the refuge on 19 October. The notes show he was shown to his self-contained flat. Mr Z quickly declared that he did not want to stay there and would rather sleep in his car. The housing officer tried to reassure Mr Z that this was a temporary measure pending his assessment for permanent housing. Despite this, Mr Z maintained his refusal.
32. The Council arranged and funded another hotel placement for Mr Z from 21 October. Mr Z told the Council he was able to manage his personal care independently and would oversee his own grocery shopping once he received money. The Council supported Mr Z in applying for Housing Benefit. Mr Z also received Universal Credit payments.
33. On 5 November Ms Y contacted the Council to confirm Mr Z’s dementia diagnosis. Following this, the Council said Mr Z needed a Care Act assessment.
34. The Council wrote to Mr Z on 10 November to confirm its decision that Mr Z was homeless and eligible for assistance. The letter explained the Council’s duty to take reasonable steps over the following 56 days to help secure suitable accommodation. The Council included a personalised housing plan and noted that Mr Z continued to be housed in interim hotel accommodation.
35. Meanwhile, the Council allocated a social worker for Mr Z’s case on 11 November. The social worker called Mr Z and Ms Y to introduce themself.
36. The allocated social worker visited Mr Z at the hotel. The notes of that visit show that Mr Z struggled at times to find the right words and did not know what day it was. The social worker arranged for an ongoing meal allowance via the hotel restaurant, funded by the Council. Ms Y says the meal allowance was not appropriate because Mr Z struggled to make choices and would eat the same meal every day. The hotel relayed concerns and said they were not a care home. The social worker assured hotel staff that arrangements were temporary until “more firm plans were put in place”.
37. The Council’s housing department referred Mr Z’s case to a supported living setting. The notes show the provider refused the referral due to the high level of Mr Z’s needs and inappropriate comments made during an assessment.
38. The social worker noted a visit to Mr Z on 18 November to start a Care Act assessment of his social care needs. The records show that Mr Z struggled to maintain focus during the conversation and the social worker was not sure if Mr Z had understood questions asked during the assessment. There is no evidence of this assessment being finalised.
39. Following the concerns noted about Mr Z’s inability to retain and understand information, the social worker completed a formal assessment of Mr Z’s mental capacity on 26 November. The assessment document says the purpose was to decide whether Mr Z had capacity to make decisions about his long-term accommodation and to agree arrangements for social care support.
40. The outcome of the assessment was that Mr Z lacked mental capacity to decide about housing and care support. The forms said the Council needed to make a best interests decision. However, the assessment document did not record any outcomes or considerations regarding a best interests decision.
41. The allocated housing officer called Mr Z in early December to discuss his housing options. Records show Mr Z insisted that he needed a two-bedroom property to accommodate his two daughters because they sometimes stayed with him. The officer told Mr Z that this had to be verified in writing by their mother. Only then would the Council consider whether to assign a two-bedroom need.
Mr Z did not agree to this.
42. Some days later the housing officer contacted Mr Z about a possible two-bedroom property. The records show this did not progress because of a lack of photographic ID.
43. The housing officer also referred Mr Z through the Council’s ‘Single Point of Access’ on 7 December due to concerns about Mr Z’s ability to live independently and to manage his medication. The Single Point of Access receives all referrals for mental health services in the Council’s area and directs them to the appropriate person or team.
44. Two days later the housing officer spoke with a social worker about Mr Z’s case. The notes show the Council agreed a best interests decision would be needed if Mr Z lacked capacity to make decisions about his accommodation.
45. The social worker met with Mr Z at the hotel to discuss accommodation and his financial situation. The notes show that Mr Z was unable to discuss anything in detail and unable to think about future arrangements.
46. On 16 December the social worker called Mr Z’s housing officer to relay their decision that Mr Z did not have capacity to make decisions about finances and accommodation. The social worker expressed their view that Mr Z could live independently, but only with the provision of daily social care support. The social worker said this could be arranged once Mr Z had permanent housing.
47. The Council wrote to Mr Z on 21 December confirming that it owed a full housing duty because it was unable to resolve his homelessness. The letter confirmed that Mr Z was housed in temporary hotel accommodation and explained his right to appeal the suitability of this accommodation.
48. Following this, the Council allocated Mr Z ‘gold’ banding for housing allocations. This meant that Mr Z had highest priority for an allocation of social housing from the Council’s housing register. The housing officer placed bids to express interest for properties on Mr Z’s behalf throughout November and December. On 22 December the records show Mr Z was in position one for a one-bedroom property in his preferred location.
49. On 30 December the social worker formally considered Mr Z’s eligibility for support under the Care Act. The social worker decided Mr Z had eligible needs, “… there is a high priority need to assist [Mr Z] to identify accommodation which is suitable to his needs and which will be intended to provide a sense of long-term stability”. It went on to say, “once [Mr Z] moves into his own rented accommodation he will initially require daily support from a PA [Personal Assistant] to help build his daily living skills to promote his sense of independence… due to the nature of the diagnosis [Mr Z] will continue to require long-term support to maintain his safety whilst at the same time promoting his welfare and ability to make choices for himself”.
50. Around this time the allocated social worker left the Council’s employment. The Council says a team leader took oversight of Mr Z’s case.
51. Meanwhile the housing officer continued to bid on Mr Z’s behalf and on 4 January Mr Z was again placed first for a one-bedroom property. The housing officer said they would need to check if Mr Z could afford the property, but in the meantime made an offer in writing to Mr Z which a friend responded to, on his behalf, to accept.
52. On 6 January 2022 the housing officer thought Mr Z was “declining rapidly” and needed the support of an allocated social worker. The social care department received contact in early January from the NHS ‘Intensive Support’ mental health team and a mental health nurse, however there was not a social worker allocated to Mr Z’s case at the time.
53. The housing officer also noted a call from the mental health team on 12 January to express concerns about Mr Z’s increased confusion, vulnerability and risk. Mr Z had recently been attacked in the community following an altercation with a member of the public. The housing officer also recorded their concerns about Mr Z being bypassed for suitable properties due to his financial status and inability to afford a tenancy. The housing officer suggested a professionals meeting take place to determine the next steps.
54. A ‘Multi-Disciplinary Team’ (MDT) meeting took place on 17 January. Those in attendance were: a Council manager from the Adults with Additional Disability team (AAD), a Community Psychiatric Nurse (CPN) two people from the NHS’ Intensive Support Team (IST), a housing support worker, and officers from a Housing Association and Emergency Housing. Ms Y says she was not invited.
55. The notes of this meeting show that professionals were increasingly concerned about Mr Z’s refusal to take his medication and the IST were visiting Mr Z’s hotel every day to support him. Ms Y says Mr Z became increasingly isolated because he had no support or stimulation. Professionals discussed Mr Z’s behaviour and that he was regularly presenting at both the police station and hospital in a confused state.
56. The MDT meeting also noted that Mr Z was unlikely to be offered housing until his finances were organised and affordability was established. This is because Mr Z had several bank accounts and various unpaid loans and overdrafts. This was a barrier to the provision of social care because the Council felt that Mr Z needed a permanent placement so that an ‘in-depth’ assessment of his needs could take place. The professionals agreed to meet again in four weeks.
57. The Council allocated a new social worker to Mr Z’s case on 20 January. The social worker visited Mr Z the following day and explained they needed to check Mr Z’s finances to see how much he could afford to pay for housing. The hotel manager expressed their concerns about the suitability of the hotel for Mr Z. The social worker asked the hotel manager to make contact if Mr Z left the hotel later than 10pm. They also asked cleaning staff to check Mr Z’s fridge for any out-of-date food items.
58. The social worker contacted the housing officer. They said that Mr Z’s housing application was on hold due to concerns about his inability to independently manage a tenancy because it was not clear yet what social care support Mr Z needed. The social worker discussed other options, such as an ‘extra care’ scheme or sheltered accommodation.
59. Several days later, the social worker met with Mr Z again to go with him to the bank to get statements of his accounts. Although the social worker was able to help Mr Z obtain these, Mr Z did not allow the social worker to keep copies.
60. Around this time, the CPN expressed their concerns about Mr Z’s behaviour and his tendency to engage in inappropriate discussions with other hotel guests. Both the nurse and the hotel staff relayed their view that the hotel was not suitable for Mr Z. The housing officer agreed to call the hotel regularly to check in on Mr Z and to address any incidents. The hotel confirmed they would ask Mr Z to leave if his behaviour impacted other guests.
61. Mr Z’s financial position improved in February following an award of Personal Independence Payments (PIP). Despite this, Ms Y says Mr Z lost the ability to access his money and use cashpoint machines. The application for social housing remained on hold pending the outcome of a social care assessment.
62. A second MDT meeting took place on 24 February. Professionals agreed that Mr Z continued to deny his dementia diagnosis and as a result they felt it was unlikely he would accept a package of care in his own accommodation. The MDT concluded the likelihood of independent living was ‘bleak’. The meeting recorded the potential for Mr Z to move into a local ‘extra care’ setting when it opened in May.
63. The Council arranged for Mr Z to visit a nearby extra care setting in March to gauge his willingness to move in May. The notes of the visit show that Mr Z refused to enter the building because he noticed vehicles in the car park with blue badges and remarked that he was not disabled.
64. Ms Y emailed the Council to express her concerns and said that professionals and the family needed to work together to persuade Mr Z to accept one of the options available to him, either an extra care placement or permanent housing with a package of care. Ms Y queried whether Mr Z had capacity to make his own decisions about choice of accommodation.
65. The social worker continued to visit Mr Z at the hotel, but their relationship became strained, and Mr Z was increasingly hostile. On occasions Mr Z would refuse to speak with the social worker or became verbally abusive.
66. The local Community Mental Health Team (CMHT) withdrew their support to Mr Z due to his lack of compliance and because he had broken into a secure lockbox of medication. The CMHT said it would re-engage once Mr Z was permanently housed.
67. In mid-March the housing officer emailed Mr Z’s social worker to say, “we need to speed things up in terms of housing as he has been in temp [accommodation] too long and B&B is not suitable accommodation for [Mr Z] considering his behaviour is deteriorating”. Around the same time, Ms Y spoke with the housing officer to express her concerns about Mr Z’s refusal to consider independent living with a care package. She queried what the next steps would be.
68. The social worker spoke with Ms Y and agreed they should contact her more frequently to keep her updated with developments. The social worker tried to visit Mr Z’s hotel twice in March and April, but he was either not in or refused to answer the door. It is clear from the notes that Mr Z was no longer engaging with the social worker.
69. On 19 May the housing officer spoke with Mr Z’s social worker. The officer relayed concerns about their inability to house Mr Z and questioned whether social care could act under Section 3 of the Care Act 2014 to accommodate Mr Z.
70. The Council received notification on 26 May that Mr Z was in hospital following his detention under the MHA. A member of hospital staff explained that Mr Z had presented at a friend’s house in a confused state. The friend called the police who then took Mr Z to hospital. The staff member said Mr Z’s behaviour was volatile and colleagues had called upon hospital security to help.
71. The following day, the ‘Adults with Additional Disability Team’ at the Council wrote a management note in Mr Z’s records. In summary, this said:
Mr Z’s case to CMHT was closed recently because they could not support Mr Z without a permanent address;
the housing officer said it was “appalling that [Mr Z] has been in temporary accommodation for eight months with no plan or prospect for moving”;
Mr Z would not accept support services;
Mr Z’s housing case was put on hold because the Council considered he needed a substantial package of social care support to manage a tenancy. Mr Z would not engage with the assessment or care planning process;
private landlords expressed concern about Mr Z’s lack of social care support; and
- Mr Z refused to consider an ‘extra care’ living placement because he was not disabled.
72. In July the hospital made a referral for advocacy support following Mr Z’s detention. Between September and November, the hospital undertook a mental capacity assessment. This concluded that Mr Z was not able to understand, weigh up or retain information about the management of his finances. The assessment said, “… this decision should be made on [Mr Z’s] behalf by the local authority under the best interests pathway of the MCA 2005”.
73. Mr Z was due to move to a residential care home specialising in Elderly Mental Impairments (EMI) in March 2023. However, an assessment concluded that Mr Z was too unwell to move. He subsequently went to hospital and died six days later.
74. Ms Y complained to us because she considers that fault by the Council adversely affected the outcomes for Mr Z. She believes that Mr Z’s wellbeing and mental health would not have declined as rapidly as it did if the Council had supported him with getting the care he needed and a permanent address.
75. In response, the Council says Mr Z’s dementia progressed at a pace not anticipated by professionals. Although the Council accepts the long-term use of temporary accommodation may have adversely impacted Mr Z, it says this alone would not have altered the eventual outcome due to the nature of Mr Z’s rapidly progressing dementia.
76. In response to Ms Y’s complaint, the Council acknowledged that it did not maintain an appropriate level of contact with Ms Y who was an integral part of Mr Z’s life and should have been consulted at all stages of the Council’s involvement with his case. In light of this, the Council suggested a financial remedy for distress; £250 for Mr Z and £250 for Ms Y.
77. We have considered the Council’s proposal. In our view, the suggested payment does not go far enough in remedying the significant injustice caused by the fault we have found which is set out below.
The Council failed to follow-up its November 2021 capacity assessment with a best interests decision.
There is no evidence to show how the Council kept Mr Z’s advocacy needs under review. Although we know that Ms Y was involved in her brother’s case, we note that she lived a considerable distance from Mr Z and may not have had availability to attend meetings or assessments with Mr Z. The Council should have considered whether it needed to appoint someone to help support and advocate for Mr Z.
Although the Council began a Care Act assessment for Mr Z, there is no evidence of its conclusion in an assessment document. This was likely due to the temporary absence of an allocated social worker.
The records show a lack of joined-up and collaborative planning by the Council. It is clear throughout the documents that colleagues in housing felt that Mr Z could not manage a permanent tenancy without a package of care. On the other hand, Mr Z’s social worker said they could not assess Mr Z until he had permanent accommodation. Although the Council held two MDT meetings, neither service area took the lead, and the meetings did not help to progress Mr Z’s case.
- There is no evidence to show the Council had due regard to Mr Z’s right to have respect for his private and family life. We consider Article 8 of the Human Rights Act was engaged because Mr Z lived in unsuitable accommodation for longer than necessary which, for the reasons explained above, had a significant impact on the enjoyment of his private and family life.
78. The fault caused significant injustice in the form of uncertainty. Had the Council followed the correct process, it is likely that officers would have accessed Mr Z’s finances to clarify how much he could afford for housing and social care. The absence of this information was a significant barrier in Mr Z’s case.
79. This contributed to Mr Z’s prolonged residency in hotel accommodation. During this time, Mr Z did not have access to cooking facilities. We note the Council paid for Mr Z’s meal vouchers however this is not comparable to having kitchen access. Furthermore, Mr Z did not always have access to NHS mental health services who were integral in managing Mr Z’s medication.
80. We know that Mr Z had a statutory right of appeal against the suitability of the hotel accommodation once the Council had accepted the main housing duty. Our guidance says we may exercise discretion to investigate suitability in cases where the complainant has already left the accommodation in question and appeal rights under S26(6)(c) are no longer available to them. We must also consider if they could have reasonably asked for a review or appealed when in occupation.
81. The November 2021 capacity assessment concluded that Mr Z was unable to make decisions about accommodation. Therefore, due to Mr Z’s lack of cognition and the absence of any advocacy support, we do not consider that Mr Z could have reasonably understood and exercised his appeal rights.
82. We have therefore exercised our discretion to consider whether the long-term use of hotel accommodation was suitable for Mr Z in his circumstances. After considering the available evidence, we have decided there was fault by the Council when it placed Mr Z there for the following reasons.
Access to medical facilities and support. The CMHT and CPN both expressed concerns about their inability to support Mr Z and ensure appropriate use of medication whilst living in the hotel. The CMHT and NHS IST withdrew their services. Ms Y says this was key to Mr Z’s deterioration because he was not consistently taking essential medication.
Safety and inappropriate behaviour. Professionals noted Mr Z sometimes acted inappropriately towards other guests. Mr Z was therefore vulnerable to retaliation. This was a credible concern because Mr Z was attacked in December 2021 following an altercation with a member of the public.
Access to social care. Mr Z’s social worker regularly noted the unavailability of permanent housing as being a barrier to the assessment and support planning process.
- These views are echoed throughout the records by key professionals, such as the social worker, housing officer and nurse. They all note the unsuitability of the hotel, and the housing officer goes further in expressing that they are appalled by the length of time Mr Z stayed there for.
83. We would usually recommend a financial payment to recognise the distress caused by a lack of suitable housing. In Mr Z’s case, this distress was further exacerbated by a lack of social care support. We are aware the Council offered Mr Z a placement in an emergency refuge in October 2021 which he refused. We also acknowledge that Mr Z’s case was complex and sometimes challenging.
84. However, with the benefit of hindsight, we know it is more likely than not that Mr Z did not have the capacity to make an informed decision to refuse this placement. There is no evidence to show the Council ensured Mr Z was supported to make an informed decision and to weigh up the consequences of his refusal. We therefore maintain our finding of fault regarding the suitability of the hotel placement.
85. When someone has died, our Guidance on Remedies says we will not normally seek a remedy for injustice caused to that person in the same way as we might for someone who is still living. We would not expect a public or private body to make a payment to someone’s estate. Therefore, if the impact of a fault was on someone who has died, we will not recommend an organisation make a payment to recognise that impact whilst they were alive. This is because the person affected cannot benefit from such a payment.
86. However, if we consider the person who has complained to us has been adversely affected by seeing the impact on their relative, we can recommend a symbolic payment to them as a remedy for their own distress.
87. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)
88. In addition to the requirements set out above, to remedy the injustice caused the Council has agreed to:
- pay £750 to Ms Y. This is to recognise the significant distress she experienced when her brother lived in unsuitable bed and breakfast accommodation without a package of care to meet his eligible needs. Ms Y also experienced avoidable time and trouble and as a result of the Council’s failure to keep her appropriately updated about Mr Z’s housing and care and support needs;
- apologise to Ms Y for failing to invite her input at key times, for example during any assessments of Mr Z’s housing or care needs or when he had a right of appeal. This was particularly important due to the absence of any other person in place to represent or advocate for Mr Z;
deliver training to relevant officers in social care and housing about the requirements of Section 6 of the Care Act 2014 and the need to ensure cooperative working between services; and
provide us with evidence showing what service improvements the Council will make to ensure that cases – such as Mr Z’s – which engage both the services of housing and social care are progressed appropriately and collaboratively.
We have completed our investigation with a finding of fault causing injustice for the reasons explained in this report. In our view, the above actions provide an appropriate remedy for the injustice caused by fault.