Summary: Mrs X complained on behalf of the Y family that Plymouth City Council and Livewell Southwest did not put support in place, recommended by an independent social worker. We consider they missed opportunities to consider Miss Y’s ability to make decisions about her support. The Council delayed arranging a review of Miss Y’s direct payment. Also, Livewell significantly delayed Miss Y accessing occupational therapy, and speech and language therapy. Those faults caused Miss Y and her family uncertainty, anxiety and frustration. The Council and Livewell have agreed to apologise and take action to remedy their injustice.

The complaint

1. Mrs X, a legal advisor, complains on behalf of Mr, Mrs and Miss Y. Mr and Mrs Y are unhappy that despite agreeing to, Plymouth City Council (the Council) and Livewell Southwest (Livewell) have not considered or implemented any recommendations from an independent social work (ISW) report to support their daughter, Miss Y. They say Miss Y has missed out on crucial support for her physical and mental health needs, and she has lost her independence. Also, Mr Y has provided all of Miss Y’s support which has caused him and his wife carer strain. Mr and Mrs Y would like the Council and Livewell to fully consider the ISW’s recommendations and implement support to their daughter.
2. Mrs X also says the Council have not carried out a review of Miss Y’s direct payment despite agreeing to in its April 2023 complaint response. The family say the Council should increase the direct payment following Miss Y’s increased needs. They wish for the Council to carry out that review and backdate the direct payment.

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The Ombudsmen’s role and powers

3. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
4. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. If it has, we may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
6. 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. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
7. When investigating complaints, if there is a conflict of evidence, we may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
8. If we are satisfied with the actions or proposed actions of the organisations that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

9. I considered evidence provided by Mrs X, Mr, Mrs and Miss Y and the organisations, as well as relevant law, policy and guidance.
10. Mrs X, Mr, Mrs and Miss Y and the organisations had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

Care planning and support

11. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan in the case of a carer). 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 type of care and support may be available in the local area.  When preparing a care and support plan the council must involve any carer the adult has. The care and support plan may include a personal budget, which is the amount of money the council has worked out it will cost to arrange the necessary care and support for the person.
12. Direct payments also give service users choice and control over their care and support. They are cash payments given to service users or their representative by councils so they can buy community care services. The payments must be enough to enable the service user to buy services to meet their eligible needs, and must be spent on services that meet eligible needs.
13. People who receive direct payments may need particular support when they first take on responsibility for managing their own or somebody else’s care or become employers for the first time. Councils should give the person support and written information about what receiving direct payments will involve as early in the process as possible. In order to make an informed decision, people need to understand what is involved in managing direct payments A person does not have to choose direct payments. They can choose instead to receive services that are provided or arranged by a council.

Mental Capacity Act and Best Interests decisions

14. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
15. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.
16. 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 done, or made, in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision-makers must follow to determine what is in a person’s best interests. The decision-maker must also consider if there is a less restrictive option available that can achieve the same outcome.

The Independent Social Worker

Background

17. Miss Y suffers with complex physical and mental health issues, a learning disability and autism.
18. In 2010, Mr, Mrs and Miss Y moved from the Devon local authority area into Plymouth. The Council picked up Miss Y’s care and support. Mr and Mrs Y wanted Miss Y to be more independent and live by herself.
19. By 2020, Mr and Mrs Y did not feel the Council’s care and support met Miss Y’s needs. Mrs X sent a judicial review of the Council’s actions and sought an assessment by an ISW.
20. In June 2021, the Council commissioned an ISW to assess Miss Y’s needs. The ISW carried out a robust assessment, which said the Council needed to decide whether to support Miss Y in her own home or in alternative accommodation. The Council should assess if Miss Y could make that decision. If the Council decided to support Miss Y at home, the ISW recommended any care agency should preferably use a Positive Behavioural Support Plan (PBSP) and have experience managing people with similar complex needs. That would help manage Miss Y’s anxiety and challenging behaviour.
21. Between June 2021 and May 2022, the Council asked its contracted care agencies if they could support Miss Y, as per the ISW’s recommendations. Many providers could not support the complexity of her needs.
22. The family refused Care Agency 1 following an earlier negative experience.
23. Care Agency 2 missed a meeting with the family. The family decided they were not competent, so it did not go further.
24. The family agreed for Care Agency 3 to support Miss Y. However, in January 2022, the family had concerns about agency staff not being vaccinated against COVID-19, so it did not support Miss Y.
25. Following that, the Council recommended Care Agency 4 in February 2022. Mr and Mrs Y said it ‘required improvement’ following a recent Care Quality Commission (CQC) inspection, so did not feel they were right to support Miss Y. The Council agreed to keep that choice open for a month. By April, the Council decided to consider other agencies, but said the choices were limited.
26. Mr and Mrs Y preferred Care Agency 5, based in Cornwall. However, they could not support Miss Y because she lived outside the Cornwall region.
27. Between May 2022 and December 2022, the Council noted the family had stopped engaging with them.
28. In January 2023, Mr and Mrs Y told the Council it had found two bespoke care providers (Care Agencies 5 and 6) willing to support Miss Y, so was unsure why the Council struggled to.
29. Between January 2023 and March 2023, the Council said Care Agency 4 was still available and noted it had responded positively to the CQC inspection report.
30. Mrs X complained on behalf of the family to the Council in April 2023. The Council responded a month later.
31. Mrs X then approached the Ombudsmen in November 2023.

Analysis

32. In response to my investigation, the Council and Livewell said:
• It was (and is) committed to implement the ISW’s recommendations, and did not disagree with them.
• It reviewed Miss Y following the ISW’s report to ensure her needs had not changed.
• It missed an opportunity to properly consider Miss Y’s capacity to decide her care and support needs.
• It recognised there was no contingency plan in place, if Mr Y had to stop caring for Miss Y.
33. I have considered the Council, Livewell and the family’s extensive records.
34. First, in June 2021 the ISW was clear what Miss Y’s needs were, and how they should be met – at home or in alternative accommodation. The Council decided to support Miss Y at home with a care agency, which would remove the continuing carer burden to her parents (especially, Mr Y). I do not consider the Council made that decision with fault. It correctly considered the needs of all the family when deciding how to support Miss Y.
35. The Council offered Care Agencies 1, 2 and 3. I consider the family presented reasonable concerns about each agency to be able to confidently support Miss Y. The Council accepted those concerns and continued its search.
36. Care Agency 4 was a specialist domiciliary care service focused on supporting people like Miss Y, with learning disabilities and autism. I consider, on the balance of probabilities, its staff would have been appropriately trained to support Miss Y.
37. I do not consider the Council acted with fault by offering Care Agency 4. Councils can still commission support from care providers with a CQC rating of ‘requires improvement’, unless the CQC impose conditions preventing that. There was no embargo stopping the Council doing so in this case.
38. I understand the family’s concerns about the potential quality of Care Agency 4’s care. The CQC noted Care Agency 4 had clearly improved its service despite making further recommendations around staff training and learning from accidents. However, I am persuaded the Council considered the family’s view, spoke to Care Agency 4, and satisfied itself it had learnt following the CQC’s inspection report. So, I do not consider the Council acted with fault when it decided Care Agency 4 could appropriately support Miss Y.
39. However, by April 2022, it was clear the family were not going to accept Care Agency 4. I consider by that point, the Council missed an opportunity to carry out a Mental Capacity Act assessment of Miss Y’s ability to decide how to receive support. It was clear by then, with limited choices available, Miss Y’s needs would continue not being met, which would likely continue the carer burden on Mr Y also. So, it would have been appropriate for the Council to consider if Miss Y understood the impact of refusing Care Agency 4.
40. The Council has agreed it did not explore Miss Y’s capacity robustly. It said staff did not consider her capacity had changed from an earlier assessment years before. But the Council accepted it did not capture that accurately. I agree that was fault.
41. I cannot say what the result of any Mental Capacity Act assessment (and potential Best Interest decision) would have been in April 2022. Also, Mr and Mrs Y would likely have challenged any decision to impose care and support from Care Agency 4 in Miss Y’s best interests. But that still leaves Mr, Mrs and Miss Y uncertain if the outcome may have been different.
42. In response to my investigation, the Council told me since May 2024, it had assigned a new Social Worker to explore Miss Y’s capacity to decide about her care and support. It will also tell staff about this fault and consider if there any training needs. I am happy the Council has recognised that fault and taken action to improve its service. However, I consider the Council and Livewell should take further action to remedy the family’s injustice.
43. The Council decided that Care Agency 5 (Mr and Mrs Y’s preferred choice) could not support Miss Y. They were based outside the Council’s area, and Care Agency 5 agreed it could not support her. I do not consider the Council acted with fault by refusing that choice.
44. Following my draft decision, Mrs X said the Council did not consider Care Agency 6 despite the family raising that verbally in late 2022 and early 2023. The family also said in a letter to Miss Y’s Social Worker on 6 January 2023: “If we managed to find two bespoke care providers [Care Agencies 5 and 6] for [Miss Y] over this past year, why have you been unable to?”.
45. I asked the Council why it did not consider Care Agency 6 as an option to support Miss Y. It said it could not find any evidence the family specifically raised Care Agency 6. I do not doubt Mr and Mrs Y’s version of events as they remember them, but on the balance of probabilities, I am not persuaded the family clearly presented Care Agency 6 to the Council as an option to support Miss Y. Therefore, I do not consider the Council acted with fault by not considering them in 2022 and 2023.
46. In response to my enquiry, the Council said Care Agency 6 is based outside their area. However, because Care Agency 6 was open to supporting Miss Y, the Council would consider them as an option. Therefore, I would encourage Mrs X and Mrs and Mrs Y to raise Care Agency 6 directly with the Council following this decision.
47. I will now consider the ISW’s recommendation for a contingency plan for Miss Y.
48. The ISW said a contingency plan was important if Mr Y could not provide any support to Miss Y. The Council told me it did not have a specific contingency plan in place, but in a crisis, it would use duty staff to support her.
49. It is clear without a commissioned care agency, Mr Y provides most of Miss Y’s support. I have not seen any evidence the Council recorded a contingency plan in Miss Y’s care plans, even to say it would use duty staff to support her. That was fault, which would have caused Miss Y and Mr and Mrs Y further uncertainty.

Livewell

Background

50. From 2010, an NHS Trust in Devon supported Miss Y’s health needs.
51. In August 2021, Miss Y’s GP referred her to Livewell’s Community Mental Health Team (CMHT).
52. In October 2021, Mrs X wrote to Livewell. Miss Y had recently changed GP to access Livewell’s services.
53. A month later, Livewell’s Community Learning Disability Team (CLDT) decided they should support Miss Y but needed details from her previous NHS Trust.
54. In December 2021, Livewell agreed to assess Miss Y because it was not clear what her needs were.
55. In February 2022, an Occupational Therapist (OT) and Speech and Language Therapist (SALT) assessed Miss Y at her home. The OT’s support would focus on Miss Y’s sensory processing needs and her anxiety. The SALT support would consider her communication needs.
56. The same month, Livewell placed Miss Y on a waiting list for OT, SALT and a psychiatry assessment.
57. In April 2022, a Psychiatrist assessed Miss Y. They had concerns about the lack of a social care package.
58. In October 2022, an OT assessed Miss Y. Between November and January 2023, the OT supported Miss Y to attend groups in the community. The OT then discharged Miss Y and agreed to contact her when a cooking group started.
59. In June 2023, a Psychiatrist reviewed Miss Y. They said Miss Y needed a stable care agency in place. Once that happened, she would need support from psychologists rather than psychiatrists, to help develop a Positive Behavioural Support Plan (PBSP).
60. The same month, the OT invited Miss Y to attend the cooking group, which she attended (on and off) for a few months.
61. Between July and November 2023, SALT completed a communication assessment and support plan for Miss Y.

Analysis

62. The ISW report made many recommendations focused on Miss Y’s social care needs. That assessment specifically referred to Miss Y’s anxiety and challenging behaviours. The ISW recommended a clinical psychologist, behavioural analyst or learning disability specialist care team to develop a PBSP to manage Miss Y’s anxiety and challenging behaviour. It also added SALT team could support Miss Y’s communication.
63. In response to my investigation, Livewell said:
• It did not miss an opportunity to integrate the social care and health assessments. Each area worked differently so needed to assess her separately too.
• It would complete joint social care and health assessments when necessary, but it was not possible in Miss Y’s case.
• It accepted there were delays Miss Y access OT and SALT support. Its waiting times were long due to reduced staff. It did not consider Miss Y was at risk. However, it agreed to review that process to ensure it keeps people updated on waiting lists.
64. I will consider if Livewell missed an opportunity to integrate the distinct social care and health assessments. I have reviewed the extensive Livewell records, and I am not persuaded it acted with fault. I will explain why.
65. When the ISW assessed Miss Y in June 2021, Miss Y was not under the care of Livewell. So when the Council assessed Miss Y in September, it could not consider any assessments by Livewell. Therefore, I consider it was appropriate to consider her social care and related health needs separately from 2021.
66. Following Miss Y’s referral to Livewell in late 2021, the CLDT decided they were best placed to support Miss Y, rather than the CMHT. I consider that was in line with the ISW’s recommendation.
67. Following the OT and SALT’s home visit in February 2022, Miss Y experienced delays accessing their services, seven and 17 months respectively. Livewell said it could not avoid those delays due to the reduced number of staff. I understand the CLDT had limited resources. However, I consider those wait times were, especially for SALT, were inappropriately long. That was fault. The CLDT also did not keep Miss Y and her family updated about the status of the waiting lists. That again was fault. Those delays would have caused Miss Y much uncertainty and anxiety.
68. The ISW was clear that either a psychologist or behavioural analyst should help develop a PBSP, once she started to receive support from a care agency. I have not seen any evidence that happened. However, I do not consider that was fault.
69. By June 2023, a Psychiatrist noted: “Once [Miss Y] has a stable package of care in place, the main stay of her treatment would be more likely provided by Psychologists and Occupational Therapists”. Therefore, the priority was to get a care agency in place. The care agency would have been responsible for working with Livewell to fulfil a PBSP. So, I do not consider the CLDT acted with fault by not completing a PBSP, before a care agency was in place.
70. Overall, Livewell provided Miss Y’s support in component parts (mainly due the waiting lists). It would have been better if it supported Miss Y’s needs holistically. However, the ISW’s recommendations would have had maximum impact alongside support from a care agency. As we know, between 2021 and 2023 Miss Y did not have a care agency to support her. So, the impact of CLDT’s support would have always been limited without a care agency in place.

The direct payment

71. Since 2010, Mr Y managed a direct payment which he used to support Miss Y.
72. In April 2023, Mrs X complained the Council had not reviewed Miss Y’s direct payment since 2010. In May, the Council said it would agree to review the direct payment.
73. In October 2023, Mrs X told the Council it should increase the hourly rate of the direct payment considering Miss Y’s needs had increased. A month later, the Council told Mrs X “it will be in touch about this [the direct payment review] in due course.”
74. When Mrs X complained to the Ombudsmen, she said that review agreed in May 2023 was still outstanding.
75. I have only considered what action the Council has taken to review the direct payment since it agreed to in May 2023.
76. In response to my investigation, the Council said following its May 2023 complaint response, it chased Mrs X for dates to review the direct payment. She did not respond.
77. I agree that after May 2023, the onus was on Mrs X to suggest a date and time for the review. I have not seen any evidence Mrs X responded to that.
78. The Council also told me that in November 2023, it proposed a full review of the direct payment. But Mrs X did not respond to that proposal. I consider after November 2023 the Council’s actions amounted to fault. It clearly agreed to follow up that letter with Mrs X, but I have not seen evidence it did. I understand that caused the family frustration.
79. The direct payment review is still outstanding. I have recommended the Council take the lead and arrange that review. That review should consider Mr and Mrs Y’s concerns about the rate of pay and any outstanding payments.

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Action

80. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisations should consider this guidance in making the apologies I have recommended.
81. Within four weeks of this decision, the Council should:
• Apologise to Mr, Mrs and Miss Y for the uncertainty caused by failing to decide Miss Y’s capacity to decide her care and support needs. Also, by not detailing a contingency plan if Mr Y could not continue caring for Miss Y.
• Apologise to Mr, Mrs and Miss Y for the frustration caused by not carrying out a review of the direct payment since November 2023.
• Arrange a date with Mrs X and the family to review the current direct payment, and consider their views on it.
82. Within eight weeks of this decision, the Council should review Miss Y’s care plan to decide if there is a contingency plan (in line with the ISW’s recommendation).
83. Within four weeks of this decision, Livewell should apologise to Mr, Mrs and Miss Y for the uncertainty and anxiety caused by the delays accessing OT and SALT services. Also, by not updating the family while they waited.
84. Within eight weeks of this decision, Livewell should develop an action plan to tackle the significant waiting times for OT and SALT services in the CLDT. If Livewell has already taken action, it should confirm to us what it has already and/or currently doing.
85. The organisations should provide us with evidence they have complied with the above actions.

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Decision

86. I find fault causing injustice. The organisations have agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman