Summary: Mr X complains on behalf of Mrs B and her two sons. He says the Council’s support plan and budget was not sufficient to meet the needs of the sons, Mr C and Mr D. We find the Council fettered its discretion in deciding to refuse some elements of support. We also find some fault in the way the Council decided the budget and handled Mr X’s complaint. The Council has agreed to our recommendations to remedy the injustices caused by these faults.

The complaint

1. Mr X complains on behalf of Mrs B and her two sons, Mr C and Mr D. He says the Council’s support plan and budget completed in 2022 was not sufficient to meet the needs of Mr C and Mr D. Mr X says the Council has not explained why some activities would be funded, but others were not and how it decided that Mr C and Mr D could fund additional activities through their benefits and current one to one support. Mr X also complains the appeal process followed by the Council did not address all elements of the complaint.
2. Mr X says, Mr C and Mr D need activities and structure each day and their wellbeing and development has been negatively affected because of this. He also says Mrs B has been funding some of their activities herself.

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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. 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 provided by Mr X and discussed the complaint with him. I made enquiries of the Council and considered the information it provided.
6. Mr X and the Council had the opportunity to comment on my draft decision. I considered all comments before reaching a final decision.

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What I found

Care and support planning

7. 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 support for that person. (Care Act 2014, Section 24)
8. Councils should keep support plans under review. These reviews should take place at least every 12 months. They should carry out reviews as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. (Care Act 2014, Section 27)
9. Where a council has decided to charge for care it must carry out a financial assessment to decide what a person can afford to pay. It must then give the person a written record of the completed assessment. (Care and support statutory guidance, paragraph 8.16)

Mental capacity

10. The Mental Capacity Act 2005 (MCA) is the framework for acting and deciding for people who lack mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes when and how to assess a person’s capacity to make a decision, and how to make a decision on behalf of somebody who cannot do so.
11. A person aged 16 or over must be presumed to have capacity to make a decision unless it has been 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, 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.

12. If someone’s capacity is in doubt, the council must assess their ability to make a decision. 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 particular time.
13. A key principle of the MCA 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 must 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.

Lasting power of attorney

14. The (MCA) introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An 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”' is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
15. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

Supported living

16. Supported living enables individuals to live independently in their own home, with appropriate support to help them manage and achieve greater freedom and control in their lives.

Background

17. Mr C and Mr D are brothers and share a flat together under a supporting living arrangement. They receive individual one to one support throughout the day, with one support worker shared between the two brothers at night. The support is provided by a care agency dedicated to supporting individuals of the same faith as Mr C and Mr D.
18. It is acknowledged that Mr C and Mr D require a single gender environment in accordance with their religious and cultural needs.
19. In January 2022 Mrs B was granted deputyship by the Court of Protection to make decisions about health and personal welfare for her sons. The Council has explained that in accordance with the principles set out in the MCA, Mr C and Mr D must be supported to make decisions about their care and if they are unable to do so, the deputyship applies, and subsequent decisions should be made in their best interests.
20. The Council’s Integrated Learning Disability Service (ILDS) provides specialist health and social care support to adults with learning disabilities.

What happened

21. Below is a chronology of key events. It is not meant to show everything that has happened.
22. Mr C has been diagnosed with a learning disability, autism, major depressive disorder, epilepsy, fragile x syndrome and attention deficit hyperactivity disorder (ADHD).
23. Mr D has been diagnosed with a learning disability, autism, epilepsy, fragile x syndrome and ADHD.
24. In February 2022 the Council agreed to fund the following activities for Mr C and Mr D:

• culinary skills/baking for 15 hours per week;
• lunch, social skills and personal hygiene training for three hours per week;
• personal trainer (for three months) for 45 minutes per week;

The Council agreed to back date this support to April 2021.

25. The Council did not agree to fund swimming and horseback riding and said these should be funded through Mr C and Mr D’s personal finances. The Council also did not agree to fund opportunities with a social enterprise on the basis that Mr C and Mr D would either be volunteers or employees of a social enterprise.
26. The Council scheduled a review of the support plans for Mr C and Mr D. Mrs B contacted the Council before the review and proposed a weekly budget for activities for Mr C and Mr D.
27. For Mr C, Mrs B suggested a personal trainer; swimming lessons; leisure swim; bowling; horticulture; cooking/chef and art therapy. The total budget proposed by Mrs B was £519.30 per week.
28. For Mr D, Mrs B suggested trampolining; swimming lessons; leisure swim; music lesson; horse riding; bowling; day opportunities; art therapy and cooking. The total budget proposed by Mrs B was £765.80 per week.
29. In April 2022 the Council completed the reviews with a behavioural analyst from the ILDS team. Mrs B and the care agency also attended the review. Mr C and Mr D were present for part of their individual reviews.
30. The reviews stated that a financial assessment was required to ensure that Mr C and Mr D were paying the correct contribution for their care and support. Mrs B managed the benefits and bank accounts for both her sons. The Council says it sent the financial assessments to Mrs B but they have not been completed or returned.
31. The Council recognised the care agency had placed an activity board in Mr C and Mr D’s bedroom with velcro pictures of activities they could choose each day. The week was structured with activities which included bowling, swimming, listening to music, walking, visiting family and music lessons. The Council said this should be regularly updated by the care agency in accordance with Mr C and Mr D’s interests.
32. In relation to the identified need of, accessing and engaging in work, training, education or volunteering, the Council said both Mr C and Mr D had engaged in activities, volunteering and/or employment they enjoyed and this provided a sense of self-determination and confidence. The Council said the care agency should continue exploring volunteering opportunities for Mr C and Mr D within their local community. The Council noted that volunteering opportunities were often free to access, and Mr C and Mr D had one to one support to access them.
33. In relation to the identified need of, making use of necessary facilities or services in the local community, including public transport, and recreational facilities or services; the Council said the care agency continued to support Mr C and Mr D to choose and access local amenities through the daily one to one support hours already provided.
34. The review document noted the information it had received from Mrs B regarding activities for both her sons.
35. The Council agreed to include weekly horticulture and art therapy in Mr C’s support plan. It said Mr C enjoyed these activities and considered they were a therapeutic element to Mr C’s care and support that may support his wellbeing and behaviours that challenge positively. The Council acknowledged that Mrs B had already sourced these opportunities and they were specific to Mr C’s cultural and religious needs.
36. The Council said, personal training, swimming lessons, leisure swim, bowling and a chef (cooking) were all needs and outcomes that could be met through the current one-to-one provision by the care agency. The Council decided that Mr C could fund these activities and others of interest with the money he received from his benefits.
37. The Council agreed to include weekly music therapy and art therapy in Mr D’s support plan. It said Mr D enjoyed attending these sessions at home and now wished to pursue them in the local community.
38. The Council decided that Mr D could fund trampolining, swimming lessons, leisure swim, bowling and cooking with the money he received from his benefits and through his current one to one provision by the care agency.
39. In May 2022 the Council sent Mrs B a copy of the support plans. Mrs B responded. I have summarised Mrs B’s response in relation to the complaint I am investigating. Mrs B said:

• Mr C and Mr D have a high level of need including eligible needs for activities in the community;
• community activities were critical for the wellbeing of both her sons and without the stimulation of structured activities each week both boys were at danger of becoming bored and lethargic;
• it was not clear why the Council included some activities and not others;
• the Council should include the cost of their activities within their personal budgets, not just the one to one support; and
• Mr C and Mr D viewed the carers as their friends, and it was difficult to engage them in activities without an expert leading the activity.

40. The Council reviewed Mrs B’s comments and made some amendments to the support plans but made no changes to the activities for Mr C and Mr D.
41. Mrs B also provided a breakdown of Mr C and Mr D’s weekly expenditure. Mr C and Mr D’s weekly income was recorded as £297.15 each. Their weekly expenditure was recorded at around £280.00 each. The Council queried some of the costs listed by Mrs B.
42. Mrs B said Mr C and Mr D paid £50 each per week for energy and water bills. The Council requested further evidence. It said an average water bill was approximately £35 per month and energy costs for a two-bedroom flat was approximately £68 per month rising to approximately £100 per month during winter months. Mrs B explained the figures were taken from recent bills and asked the care agency to send copies to the Council.
43. Mrs B said Mr C and Mr D spend approximately £100 each per week on food and cleaning products. The Council said the average food shopping costs had increased and was about £50 per week for an adult male. It said £100 per week was excessive. Mrs B explained that kosher food was more expensive than other food. Mrs B asked the care agency to provide copies of bills to the Council.
44. Mrs B said Mr C and Mr D purchased four pairs of trainers each per year. The trainers cost £150 each. Mrs B explained her sons wore a specific brand of trainers suitable for their orthotic needs and were purchased from a specialist store. The Council queried whether the trainers could be purchased from another store. It also said the trainers required replacing after 500 miles of travel. Mrs B explained the store was recommended by an orthopaedic surgeon and asked the care agency to confirm that Mr C and Mr D’s trainers required replacing every six months.
45. In July 2022 Mr X complained to the Council about the outcome of the reviews and decisions around activities. To summarise Mr X said the Council had failed to explain, how it had determined what activities were required to meet Mr C and Mr D’s substantive needs; its decision that Mr C and Mr D could pay for activities from their own income and why it considered that Mr C and Mr D’s one to one carers could support them with accessing additional activities.
46. Mr X said Mrs B had provided substantial evidence that Mr C and Mr D required one to one support in addition to the cost of activities led by professionals. Mr X explained, “Professionals providing activities are not trained to meet their care needs, e.g. for personal care, to support them with eating and drinking, to help them shower and change clothing (for example at the gym or swimming pool), and to administer their medication. Their 1:1 carers have the proper training to provide this care, which [Mr C and Mr D] require all day every day. Equally the 1:1 carers do not have the skills or experience to teach them the skills they are learning from professionals, when cooking, swimming, horse riding etc, and to provide the stimulation and activities they require to meet their eligible needs. Therefore, both the 1:1 and the staff providing the activities are required to meet their assessed needs, and it is not possible to have one without the other”.
47. Mr X also said in 2021 the Council had agreed to fund attendance at a culinary school five days a week for both Mr C and Mr D. The cost of the provision was £500 each, per week. The provision was cancelled in February 2022 when Mr C suffered from multiple seizures. Mr X says in contrast the Council had now agreed to increase Mr C’s budget by £120 and Mr D’s budget by £80, per week. To note, it is the Council’s understanding the provision was cancelled by the provider.
48. The Council said it would consider the complaint under its appeals process.
49. The appeal was completed by a Principal Social Worker (PSW) not linked to Mr C and Mr D’s case. The PSW met with Mr C and Mr D. Mrs B was also present.
50. The PSW spoke to Mrs B during the appeal. It was Mrs B’s view that an increase in the care and support plans for her sons would provide the structure they needed. The key factors for the PSW was whether Mr C and Mr D’s eligible needs had changed; whether these needs could be met through universal services; and if further provision was needed, whether Mr C and Mr D had the capacity to consent to that; and if so, whether they wanted to engage with these additional services by consenting to them.
51. The PSW noted “although my interactions with [Mr C and Mr D] were relatively brief, I can conclude with a high degree of confidence that they can contribute to their care panning and express their views about whether any variations are required.” The PSW concluded there was no evidence that Mr C and Mr D had requested any increase in their provision. Nor was there any evidence to support an increase in care and support or that this should be funded by the Council. The PSW acknowledged that it was possible, that if asked, Mr C and Mr D may want their carers to undertake different activities with them than stipulated in their current plans.
52. The PSW recommended that further person-centred work should be undertaken with Mr C and Mr D to ensure their views and desires about their current care plans were clearly established. Specifically, the PSW recommended:

• a multi-professional person-centred assessment to determine what Mr C and Mr D could do for themselves and areas of their lives they required assistance with;
• person-centred work to determine Mr C and Mr D’s views about their current support plan;
• procedural steps required for care planning consistent with the MCA should be followed and documented in Mr C and Mr D’s files; and
• a review of financial issues including whether the Council’s charging policy had been applied to the provision of support of them both and investigation into substantial rent arrears.

53. In October 2022 the Council completed a further review of the support plans for Mr C and Mr D. The Council explained that during the reviews both Mr C and Mr D showed the social worker their activity planner and how they used this to choose and communicate their daily schedule.

The Council’s response to our enquiries

54. The Council has confirmed its view that activities such as bowling, swimming, and cooking are all outcomes that can be met through the current provision provided by the care agency and can be included in Mr C and Mr D’s activity planner. The Council says the care agency can support Mr C and Mr D with developing their cooking skills and can support them to access swimming and bowling. The Council says it is meeting its duties in providing support for Mr C and Mr D to access activities with one to one support and that it is reasonable to require Mr C and Mr D to meet the costs of admission to activities from their own finances.
55. The Council considered that paying for horse riding and providing a chef within the support plan was not reasonable and proportionate. Mr D has attended horse riding lessons without funding from the Council.
56. The Council said it agreed to fund art classes and music therapy because they were available at point of access within some ILDS teams and the possibility of direct provision of art therapy by ILDS was being considered. The Council said the family, care agency and social worker also considered that presentation of behaviours that challenge both Mr C and Mr D could be addressed through the therapeutic nature of these therapies.

Analysis

57. It is not the role of the Ombudsman to decide if a person has social care needs, or if they are entitled to receive services from the Council. Our role is to establish if the Council assessed a person’s needs properly and acted in accordance with the law.
58. Mr C and Mr D both have eligible care and support needs. This is not disputed. Specific to this investigation the care plans identified the following needs:

• accessing and engaging in work, training, education or volunteering; and
• making use of necessary facilities or services in the local community, including public transport, and recreational facilities or services.

59. The Council involved Mr C, Mr D and Mrs B when deciding about their care and support. I understand that Mrs B doesn’t completely agree with the discussions that took place with Mr C and Mr D, but I find no fault in the way the Council decided they had capacity to engage and contribute. However, the Council has identified there was no evidence the reviews sought Mr C and Mr D’s views about their current support. Therefore, in my view there is uncertainty as to whether the Council developed activities plan that properly involved Mr C and Mr D and considered their wishes. I understand the Council has already taken action to address this through engaging person-centred work with Mr C and Mr D.
60. People can express a wish for a particular service and the Council must have regard to this. However, it is for the Council to decide how best to meet a person’s eligible needs.
61. In November 2021, the Council agreed to fund attendance at a culinary school five days a week for both Mr C and Mr D. Prior to the review Mrs B requested cooking classes with a chef for both her sons. The Council decided their needs in relation to cooking skills could be met through the current one to one provision by the care agency. This is a significant change to the previously agreed package of support, and it is my view the Council has not provided a robust rationale for its decision. This is fault. There appears to have been no significant change in Mr C and Mr D’s needs since November 2021.
62. It is not clear from the reviews how the Council decided to fund some activities and not others. There is no evidence to show whether the Council considered the recommended activities, such as swimming, cooking and horse riding, met Mr C and Mr D’s eligible needs. Rather it concluded that art and music therapy were activities that Mr C and Mr D enjoyed and were a therapeutic element that may support their wellbeing and behaviours that challenge positively. I am unsure how the Council reached such a decision about these activities and not the others proposed by Mrs B. It failed to give any consideration to the benefit Mr C and Mr D may have derived from the other activities. This is not a person-centred approach and contrary to the principles of the MCA.
63. Decisions need to be needs led and the Council should have considered Mr C and Mr D’s specific circumstances. In failing to do so the Council has fettered its discretion. This is fault. This has caused Mr C and Mr D uncertainty, as to whether the outcome may have been different if the Council had adequately considered their needs.
64. The Council said that it was reasonable for Mr C and Mr D to meet the costs of admission to the additional activities from their own finances. Mrs B and Mr X have told the Council that Mr C and Mr D cannot afford to pay for these activities.
65. In response the Council queried some of the weekly costs that Mrs B provided. Mrs B responded. I do not find the Council at fault for wanting to gain some clarity about Mr C and Mr D’s weekly expenditure. The Council has however not explained how it considered this new information when reviewing its decision that it was reasonable for them to meet the costs of admission to the activities from their own finances.
66. However, I cannot say the Council is entirely at fault here, as it requested copies of utility and shopping bills and further information about replacing Mr C and Mr D’s trainers. The Council has not received this information. The Council also asked Mrs B to complete financial assessments for Mr C and Mr D and explain how their benefits and bank accounts were managed. The Council said Mrs B did not provide this information. It is noted that Mrs B disputes this and says she completed financial assessments in May 2022 and August 2022. I have not investigated this issue further, as I am satisfied the Council will require new financial assessments as part of the review of Mr C and Mr D’s activities, as stated in paragraph 70.
67. The Council also said Mr C and Mr D could access these additional activities through their one to one provision. Mr X disagreed and said Mr C and Mr D required one to one support in addition to the cost of activities led by professionals. Mr X provided examples and scenarios in support of his complaint. The Council has failed to consider and respond to this part of the complaint. This is fault. This has caused Mrs B uncertainty, as to whether the outcome may have been different if the Council had properly considered their complaint.
68. Mrs B has requested the Council pays £500 in legal fees for the handling of her complaint. We have already advised Mr X that complainants should not need a professional adviser to complain to us and only exceptionally do we recommend reimbursement of legal costs. This may be when a case is particularly complex, for example. Mrs B’s case was not complex, and she had already been dealing with the Council about this matter. There are no grounds for me to recommend the Council pays Mrs B’s legal costs.

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Agreed action

69. Within one month of my final decision the Council will apologise to Mr C, Mr D and Mrs B for the faults identified in this statement and the uncertainty it caused.
70. Within two months of my final decision the Council will:
1. review Mr C and Mr D’s activities plan, consider the activities proposed by Mrs B and provide a clear rationale for its decision making about which activities it will or will not fund. The Council should ensure it involves Mr C and Mr D in this process and Mrs B as necessary in accordance with the LPA;
2. as part of the review, consider Mr X’s comments that Mr C and Mr D require one to one support in addition to the cost of activities led by professionals. Following the review, the Council should respond to this part of Mr X’s complaint and provide a clear rationale for its decision making;
3. as part of the review, consider Mrs B’s response to the Council’s queries on Mr C and Mr D’s weekly expenditure and whether this affects its decision that they can fund additional activities through their benefits. In order to do this Mrs B should complete a new financial assessment and provide the Council with the information it requires;
4. depending on the outcome of the review, consider if Mr C and Mr D have missed any support, and propose a plan of suitable extra activities. The Council should involve Mr C and Mr D in devising the plan and Mrs B as necessary in accordance with the LPA; and
5. provide an update on progress with the recommendations made by the PSW as recorded in paragraph 52.
71. The Council should provide us with evidence it has complied with the above actions.

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Final decision

72. I have found fault by the Council causing an injustice to Mr C and Mr D. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman