Summary: Mr X complained about how the Council managed his adult son, Mr Y’s care needs, assessed his capacity to make decisions about his care and supported him and Mr Y’s mother as Mr Y’s carers. The Council delayed in resolving concerns about Mr Y’s capacity, failed to issue an up-to-date carer’s support plan and did not ensure Mr Y’s care needs were met. This caused Mr Y uncertainty and meant Mr and Mrs X had to provide additional care without appropriate support. The Council will apologise for the injustice caused, make symbolic payments to Mr Y and Mr and Mrs X and take action to resolve its concerns about Mr Y’s capacity.

The complaint

1. Mr X complained about how the Council managed his adult son, Mr Y’s care needs. Specifically Mr X complained the Council:
1. will not accept a mental capacity assessment a health professional involved in Mr Y’s care completed;
2. did not properly consider Mr Y’s care needs when it issued a care and support plan in November 2023;
3. failed to issue updated carer’s support plans for himself and Mr Y’s mother, Mrs X, in line with his updated care and support plan; and
4. provided a poor response to his complaints about the matter.
2. Mr X said this caused Mr Y distress and he had insufficient care, and Mr and Mrs X were providing additional unpaid care which was affecting their health, wellbeing and ability to take paid employment. Mr X wanted the Council to update the care and support plans.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We consider whether there was fault in the way an organisation made its decision. 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)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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

7. I read the documents Mr X provided and discussed the complaint with him on the telephone.
8. I considered the documents the Council sent in response to my enquiries.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

Assessment

10. 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.

Care Plan

11. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what needs 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. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.

Carer’s Assessment

12. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
13. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)

Personal Budgets

14. Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the plan. The personal budget must always be enough to meet the person’s care and support needs.
15. There are three main ways a personal budget can be administered:
• as a managed account held by the council with support provided in line with the person’s wishes;
• as a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes; or
• as a direct payment.

(Care and Support Statutory Guidance 2014)

Direct payments

16. Direct payments are monetary payments made to individuals who ask for them to meet some or all of their eligible care and support needs. They enable people to arrange their own care and support to meet those needs. The council must ensure people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the council should support them to use and manage the payment properly. The council must be satisfied in making direct payments that the person is capable of managing the direct payments, either by themselves, or with whatever help the person needs to access and that it is an appropriate way to meet the person’s needs.
17. The Care and Support (Direct Payments) Regulations 2014 prevent direct payments being used to pay for care from a close family member living in the same household, except where the council considers this necessary. Although close family members can, if the council considers it necessary, provide management or administrative support to the direct payment holder. Carer’s Budgets and Respite
18. The Care Act 2014 says the council may meet the carer’s needs by providing a service directly to the adult needing care. The carer must still receive a support plan which covers their needs, and how the council will meet them. The carer’s personal budget must be an amount that enables the carer to meet their needs to continue to fulfil their caring role. It must also consider what the carer wishes to achieve in their day-to-day life. Part of the planning process should be to agree how the carer will use the personal budget to meet their needs. (Care and Support Statutory Guidance 2014)

Mental Capacity Act

19. 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.
20. A person aged 16 or over must be presumed to have capacity to make a decision unless it is 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; 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.
21. 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.
22. 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?
23. 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.
24. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

What happened

Background information

25. Mr Y was previously receiving direct payments to fund 15 hours of personal assistant support per week during term time, while he attended an educational placement, and 30 hours of support during holidays.
26. The Council completed an assessment of Mr Y’s care needs in July 2023. By this time Mr Y was no longer attending the educational placement. The assessment recorded Mr Y had autism spectrum condition and needed social and mental health support. It recorded Mr Y was not able to safely manage his finances independently. Mrs X, Mr Y’s mother, managed finances on his behalf. It found Mr Y needed support in all areas of his life during the day and night. Mr and Mrs X were providing a high number of support hours which it said was not sustainable in the short or long term.
27. The assessment found Mr Y would benefit from either a mix of personal assistant support and day services during the week or five days of day services such as day centres and activities. Specifically it recommended:
• Mr Y’s direct payment include 50 hours of one-to-one support;
• 50 nights of respite a year;
• Direct payments to cover certain therapeutic activities and a gym membership; and
• A mental capacity assessment for care and accommodation, finances and direct payment decisions.
28. Following a separate investigation by the Ombudsman we recommended in September 2023 the Council issued an updated care and support plan to reflect the July 2023 assessment. We also recommended if it considered there was doubt Mr Y had capacity to make a specific decision it should start a mental capacity assessment.

Events subject to this investigation

29. Following a meeting in mid-October 2023 the social worker told Mr and Mrs X that they were going to find an independent person to complete an assessment of Mr Y’s capacity to make decisions about his care and support, finances and direct payments. Mr and Mrs X wanted to be paid as Mr Y’s carers through the direct payments that Mrs X managed on Mr Y’s behalf. The social worker said they could not make a decision on that until it had done a capacity assessment.
30. The Council told Mr X in October that it would include the cost of a membership to a Council Leisure Centre in the direct payments. Mr X had previously told it the Council leisure centre would not meet Mr X’s needs as it did not have the same facilities that Mr Y liked to use. The Council considered Mr X’s comments and told Mr X it considered the leisure centre would meet Mr Y’s needs. It said Mr Y could pay the additional cost to use a commercial gym if he wished.
31. Mr X sent the Council a letter from a health professional involved in Mr Y’s care in October. He said Mr Y did not want to have any more capacity assessments. The letter said the professional had assessed Mr Y’s capacity to make decisions about where he wanted to live, whether he wanted to access short breaks respite care, whether he wanted support from carers, what day services he wanted to access, and whether he wanted to receive direct payments. It said based on the questions they asked, Mr Y retained the information and was consistent in his answers and had capacity to make decisions on those points.
32. The Council told Mr X at the end of the month it had considered the letter but it did not meet the standard required as it did not show how Mr Y’s capacity was explored.
33. Mr and Mrs X submitted carer’s self-assessment reviews in November. They said they could not continue in their caring roles. They said the Council had agreed Mr Y needed 50 hours of support but had not finalised his care and support plan so he was only receiving 15 hours of support and they were providing the rest. Mrs X said she was providing support all day and overnight, which was impacting their own health and wellbeing and they were struggling financially as they were unable to work full time. Mr and Mrs X asked for more support and said they needed ‘replacement of our caring roles’ as Mr Y would not use respite services.
34. The Council increased Mr Y’s direct payments that month. However it indicated the increase was to cover Mr Y’s care agency as it said it need to provide two-to-one care, instead of the one-to-one care that was previously in place. It did not increase the hours of care and support Mr Y received.
35. The Council completed a carer’s support plan at the end of November. It proposed two nights a week respite and a personal budget for Mr and Mrs X to use towards a holiday. The Council said it had no record it sent the carer’s support plan to Mr and Mrs X.
36. The Council issued an updated care and support plan for Mr Y in November 2023, as a result of the assessment it completed in July 2023. The plan recorded Mr Y had a direct payment to meet his care needs which could cover personal assistant support in the community, day services and therapeutic activities he attended. It stated it reflected the increase in payments to cover the two-to-one support. It said it would cover the cost of a gym membership to the local leisure centre and a one-off payment for a desktop computer.
37. The plan recorded it was under regular review and was not the final plan as a mental capacity assessment was still required to determine Mr Y’s ability to make decisions about his support plan and direct payments and whether direct payments could be used to pay Mr and Mrs X to provide his care.
38. Mr X complained to the Council in mid-December. He said the Council had not:
• issued a carer’s support plan and so he and Mrs X were not properly supported as carers;
• finalised Mr Y’s care and support plan so it could not be implemented;
• accurately identified Mr Y’s needs;
• accepted the health professional’s capacity assessment;
• included Mr X’s alternatives for respite in the care and support plan as 50 nights of short break was not appropriate as Mr Y wanted to stay at home.
39. Mr X later added to his complaint the Council had restricted Mr Y to only using a local authority leisure centre, which did not meet his needs.
40. The Council’s internal records show it considered Mr Y’s case in January 2024. It recorded it needed to update the care and support plan once respite was agreed. Mr X had told the Council Mr Y only wanted respite in the family home and so Mr and Mrs X requested direct payments paid to them so they could reduce their working hours and avoid the need for external respite providers. It recorded there was a finalised support plan on the Council’s system but the mental capacity assessment issue remained outstanding.
41. The Council responded to Mr X’s complaint at the beginning of February. It said it had reason to doubt Mr Y’s capacity to make decisions about his care and offered an independent capacity assessment. It said in the interim it had increased Mr Y’s direct payments to ensure sufficient funding for the care agency to provide two-to-one care, the personal budget covered the gym membership and should be used flexibly, and it was willing to consider respite alternatives for Mr and Mrs X.
42. Mr X told the Council it had not mentioned Mr and Mrs X’s carer’s support plan, and Mr Y was feeling threatened to take a capacity assessment.
43. The Council reiterated its previous response. Dissatisfied with the Council’s response Mr X asked us to investigate.
44. In response to my enquiries in June 2024 the Council said it had been unable to complete a care and support plan as it has not been able to complete a suitable mental capacity assessment for Mr Y. It stated it intended to write to Mr and Mrs X explaining why a capacity assessment was required and consider if it should make an application to the Court of Protection about the matter.

My findings

Mental capacity assessment

45. The Council considered there was doubt about Mr Y’s mental capacity to make decisions about his care and accommodation and about his finances and direct payments. The Council has a duty to assess Mr Y’s capacity to make those decisions. This was particularly important as Mr X said Mr Y wanted to use direct payments to pay Mr and Mrs X as carers, as Mrs X manages Mr Y’s finances and direct payments that could be a conflict of interests and not in line with the regulations.
46. Mr X wanted the Council to accept a medical professional’s assessment of Mr Y’s capacity, however the Council set out why it considered that assessment was insufficient. There was no fault in how the Council made that decision and so I cannot question its outcome.
47. Although the Council was not at fault for not accepting the health professional’s capacity assessment, it was at fault for the drift and delay in establishing Mr Y’s capacity. We recommended the Council start a mental capacity assessment in September 2023 following a separate investigation. The Council has known since the end of 2023 that Mr X had reported Mr Y did not wish to engage with any further capacity assessment. Mr X declined its offers of an independent capacity assessment in October 2023 and February 2024. The Council said in June 2024 it intended to consider making an application to the Court of Protection, which is the appropriate action to take where there is a conflict about capacity.
48. The Council should have taken positive action to resolve the issue of capacity which has now been outstanding for over 11 months. The failure to do so was fault. It caused Mr X, Mrs X and Mr Y avoidable uncertainty about what would have happened if Mr Y’s capacity had been established. The Council said it had been unable to update Mr Y’s care and support plan until it resolved the capacity issues, which has caused injustice identified below.

Care and support plan

49. The Council’s assessment of need in July 2023 recommended Mr Y received 50 hours of support, or 5 days of day services, and 50 nights of respite care. While Mr Y’s capacity has been in question the Council has not updated Mr Y’s care and support plan meaning he was receiving only 15 hours of support, which was fault. The Council did not seek to provide an alternative to direct payments to provide Mr Y’s care during that time. This did not cause Mr Y an injustice as Mr and Mrs X provided the additional support as unpaid carers. However, the fault caused ongoing injustice to Mr and Mrs X as they had to provide an additional 35 hours of care per week between them for Mr Y for 11 months, which had a significant impact on their lives.
50. Mr X complained the Council had restricted Mr Y’s gym membership funding which was not allowing flexibility. The Council consider a leisure centre membership would meet Mr Y’s needs. Mr X explained why he believed it would not. The Council considered Mr X’s comments but did not change its decision. It informed Mr X that Mr Y could use the direct payments to attend a different gym and make up the shortfall from his own income. There was no fault in how the Council made that decision and so I cannot question the outcome.

Carer’s support plans

51. The Council’s assessment of Mr Y’s needs in July 2023 recognised Mr and Mrs X’s caring roles were not sustainable in the short or long term. Mr and Mrs X completed carer’s self-assessment in November 2023 and said they were struggling to provide the additional care for Mr Y and asked for support, particularly as Mr Y would not use respite services. The Council wrote a support plan in November 2023 proposing two nights a week respite, and budget towards a holiday. This was not appropriate as Mr Y would not use respite services. Mr and Mrs X had suggested alternatives to respite for Mr Y, it is for the Council to consider and decide if the alternatives were appropriate. The Council did not consider Mr and Mrs X’s suggestions or propose suitable alternatives. The Council did not consider the additional support Mr and Mrs X were providing as identified in the above paragraph, or that it had already considered their caring roles were not sustainable. The Council did not send Mr and Mrs X that carer’s support plan.
52. The Councils failure to properly consider Mr and Mrs X’s needs as carers and provide them with a carer’s support plan was fault. It caused Mr and Mrs X frustration and uncertainty about the support they would have received had the Council properly considered it, and meant they continued in their unsustainable roles for a further 13 months.

Complaint handling

53. Mr X complained to the Council about a number of matters, including the lack of carer’s support plan. The Council did not consider that part of Mr X’s complaint. That was fault and caused Mr X frustration and time and trouble in reiterating his complaint.

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Agreed action

54. Within one month of this decision the Council will:
1. Write to Mr Y and apologise, and pay him a symbolic amount of £300 to recognise the avoidable uncertainty caused to him by the Council’s drift and delay in establishing his capacity to make decisions about his care.
2. Write to Mr and Mrs X and apologise, and pay them a symbolic amount of £500 each to recognise the impact of the caring roles they have carried out as a result of the Council’s fault and the frustration and uncertainty caused.
3. Consider how it will meet Mr Y’s assessed needs and discuss alternatives to direct payments with Mr and Mrs X and Mr Y to ensure appropriate care is in place while Mr Y’s capacity is established.
4. Offer and complete a reassessment of Mr and Mrs X’s needs as carers, considering all of the care they provide, and issue a carer’s support plan that accurately reflects their needs and Mr Y’s refusal to access respite outside the family home.
55. Within two months of this decision the Council will contact Mr X and Mr Y and explain its position on the capacity assessment and then either complete a capacity assessment with Mr Y’s agreement, or refer the matter to the Court of Protection.
56. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council will consider this guidance in making the apologies I have recommended.
57. The Council will provide us with evidence it has complied with the above actions.

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Final decision

58. I have completed my investigation. I found fault causing injustice and the Council agreed to my recommendations to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman