Summary: We cannot investigate whether Mr K’s current care plan meets his needs because this is part of court proceedings. There was no fault when the Council refused to reassess Mr K’s care, or how it responded to his mother’s concerns about his care and finances. The Council also properly considered whether Mr K’s mother has support needs as a carer and has explained its conclusions to her.

The complaint

1. Mrs B complains about how the Council has dealt with her adult son, Mr K’s care and support needs, and how it has dealt with her support as her son’s carer. In particular Mrs B says:
• The Council assessed her needs as a carer but wrongly concluded she had no support needs.
• Mr K’s current support plan does not meet his needs and the Council refused to reassess him when she told it her son’s needs had changed.
• The care plan is not being implemented properly and neither the care provider nor the Council have done enough to make sure that Mrs B has the agreed contact with her son.
• The Council has failed to ensure that Mr K has the right support when he stays at her house, and does not allow him enough spending money to support this.
2. Mrs B says that as a result of the Council’s shortcomings, her son is not receiving the right care and she is left unsupported.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
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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What I have and have not investigated

5. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
6. The Court of Protection held a hearing in April 2023. It decided that as Mr K does not have capacity to decide where he should live or what care he should receive, and the Council and his parents could not agree on this issue, it should make a decision in his best interests.
7. The court order sets out that Mr K should continue to live in his supported living unit. He will have contact with his parents in accordance with the schedule agreed by the court. The Council will ensure that Mr K received care in accordance with his care and support plan dated October 2022, and his positive behaviour plan dated June 2023, both of which were attached to the final order. The court appointed a representative for Mr K to monitor the implementation of his care plan. The Council must consult Mrs B when it reviews his care plan and the behaviour plan. The Council should also carry out some short-term support for Mrs B to help her when her son comes to stay with her.
8. I have not investigated Mrs B’s concerns about whether her son should be living at the supported living unit, nor her concerns about her son’s 2022 care and support plan or the 2023 behaviour plan. This is because these matters have all been considered by the court.
9. I have investigated how the Council implemented the court order where this has not been reviewed by it. I have investigated whether there is fault in how the Council assessed Mrs B’s needs as a carer and the support it offered her. I have also investigated how the Council considered Mrs B’s request for it to reassess her son’s needs; how it considered what support Mr K should have when he stayed with his mother and how much money he should have there; and how it implemented the contact plan.

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How I considered this complaint

10. I considered the information provided by Mrs B and discussed the issues with her. I considered the information provided by the Council including its file documents and the court order and judgment. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement. I have taken into account all comments received before issuing this final decision.

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What I found

The law and guidance

The role of the Court of Protection

11. 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.
12. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
13. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Carer’s assessment

14. 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.
15. 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)

Care Plans and reviews

16. 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. 
17. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans 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. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Direct Payments

18. 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.

What happened

19. Mrs B’s son is a disabled adult. He lives in a supported living unit. In April 2023, a hearing at the Court of Protection ordered that he should continue to live there with the care set out in his current care and support plan and in a new positive behaviour plan. The court also ordered that Mr K should visit his mother’s home in accordance with the agreed contact schedule.

The carer’s assessment and carer support needs

20. The Council had assessed Mrs B’s support needs as a carer at the beginning of 2022. It decided that as Mr K lives in a supported living home with a full package of care, Mrs B did not have support needs.
21. In April 2023 the court ordered that the Council provide Mrs B some short-term support sessions to deliver the care plan while he visited her at home. The Council’s case notes show that it considered what was required to implement this part of the court order in consultation with its legal advisor.
22. The Council decided it would offer six weeks of support to Mrs B and then review what she would need going forward. The Council started to search for an agency to deliver the support in May 2023. By June 2023, the Council had found a care provider who would observe Mrs B while her son visited her and identify her further support needs. The Council said it would then discuss these with Mrs B and decide how best to support Mrs B and Mr K during his contact visits.
23. The support worker shadowed the care Mr K receives in his supported living home and then visited Mrs B on Mr K’s visits to her. The Council liaised with the support worker about how the sessions were going. In October and November, the Council reviewed whether this work had shown that Mrs B needs support in the home to deliver the care plan when her son visits her.
24. During this time, Mrs B was asking the Council to do another carer’s assessment. The Council said that it had already done this and there had been no support needs. It asked Mrs B what she thought had changed in that time.
25. Mrs B complained to the Council about various aspects of her son’s care and that the Council had not completed another carer’s assessment when she asked. In October, the Council agreed it would review the carer’s assessment. It made arrangements for this and completed a new carer’s assessment, in conjunction with Mrs B, in December 2023. In the assessment it also made reference to the outcome of the support sessions that had taken place in her home when her son was visiting.
26. The carer’s assessment concluded that Mrs B does not have carer’s support needs as a result of providing necessary care for a disabled adult. The Council’s assessment sets out that Mrs B can meet her needs herself outside of her contact time with her son. The assessment says Mrs B does not have to meet her son’s needs as he has a full package of care at his supported living home. It says Mrs B chooses to have contact with her son in her home but could also visit him where he lives. The Council’s assessment says that Mrs B is unlikely to have carer’s support needs in the future unless her son comes to live with her.

There is no fault in how the Council assessed Mrs B’s support needs as her son’s carer. Initially, it explained to Mrs B that it would not reassess her because the situation had not changed and her son still had a full package of care in his supported living home. It did not dismiss Mrs B’s concerns without consideration however, and invited Mrs B to explain why she thought the situation now warranted another assessment. The assessment document is comprehensive and sets out the difficulties and the Council’s considerations of her carer support needs. There is no fault in how the Council assessed Mrs B’s carer needs and so there is no basis for me to criticise the outcome of the assessment.

The current care plan, Mrs B’s requests that the Council review this and the Council’s approach regarding contact between Mrs B and her son.

27. Mrs B says that her son’s care plan is not meeting his needs, it is not being implemented correctly by the care provider, and neither the Council nor the provider are doing enough to make sure that Mrs B has contact with her son as agreed.
28. The court decided that it was in Mr K’s best interests to remain living at the supported living home rather than at either of his parents’ homes. The court said that it could only decide this by also considering his care package. The court judgment meant that the Council lodged with the court Mr K’s care and support plan and a positive behaviour support plan which gave more detail of how Mr K’s needs would be met.
29. As both the care and support plan and the behaviour plan are part of the court proceedings, I cannot investigate whether there was any fault in how the Council developed and decided these plans. I also note that both plans were developed in consultation with Mrs B and the Council took her comments into consideration.
30. I have investigated how the Council responded to Mrs B’s requests for a reassessment and how it made sure that Mr K was receiving care in accordance with the plans. Mr K lives in a supported living home and his care needs are met by the care provider acting on the Council’s behalf. The Council remains responsible for making sure Mr K’s needs are met.
31. Mrs B raised concerns about various aspects of Mr K’s care and asked the Council to reassess his needs. Mrs B said her son’s nighttime needs had increased and that this was a result of his needs not being met. Mrs B also became aware that her son was displaying some unwanted behaviour in his room that impacted on his dignity. The Council considered the information from the care provider and from Mrs B. It decided that there were no additional nighttime needs and that the other behaviour had been discussed as part of the court proceedings and taken into account when it developed the care and support plans. In other words, this was not new behaviour that warranted a reassessment. The Council said it would take this into account at Mr K’s next review. There was no fault in how the Council dealt with Mrs B’s requests that it reassess her son’s needs.
32. In other emails to the Council, Mrs B raised incidents where her son was in dirty clothing; that his iPad (which is important to meet his care needs) had not been charged or loaded properly; and that his dental and nail trimming needs had been neglected. The Council addressed this and other similar concerns with the care provider. The case notes show that there is a high level of communication between the care provider and the Council’s social worker, and that the Council challenged the care provider where it considered the case recording could have been better.
33. Mrs B also said that her son needed various medical assessments such as of his auditory processing needs. The Council said that this had been done earlier and fed into his plans that were part of the court order. Mrs B asked about some other medical referrals and the Council clarified any outstanding referrals with the GP and liaised with the dentist.
34. Mrs B raised valid concerns with the Council about her son’s care. However, the Council investigated these properly with Mrs B and the care provider and found that it was implementing the care plan and the behaviour plan. It responded to Mrs B on each of her concerns.
35. The court also ordered that Mrs B have contact with Mr K where he would visit her home according to an agreed schedule. The Council lodged the schedule with the court, together with a contact protocol of what the care provider should do if Mr K said that he did not want to go to Mrs B’s house.
36. It is open to Mr K to say whether he wants to go on his visit to Mrs B. There were times when Mr K did not want to because he wanted to do something at home instead. The case notes show a high level of communication between the Council and the care provider, and so it had a very good understanding of what was taking place. The Council made sure that Mr K had been told what activities Mrs B had planned for the weekend. If he refused, the Council made sure the care provider had offered alternatives such as a day trip or shorter trip, and also explained with a calendar that it would mean he would go a longer time without seeing his mother. The Council made sure a script was added to the protocol so that the provider dealt with each incident the same way.
37. I appreciate that it must be very difficult for Mrs B when she is told that her son does not want to go on his contact visit, and I realise that she is concerned that he has limited capacity to understand his decisions and that the care provider may not be encouraging him correctly. However, the court was clear that Mr K can decide whether he wants to go on these visits and so all those involved need to respect his wishes. The Council has taken steps to plan how to respond when Mr K refuses and has made sure that the care provider implements the protocol. Although I can see it is very distressing for Mrs B, there is no fault by the Council in how it and the care provider have responded to her concerns.

Support for Mr K during his contact time with Mrs B, and the funding of his contact time.

38. The court did not make an order as to what support Mr K should have when he visited Mrs B at home. It noted that Mrs B said she did not want to be a carer, and wanted to have paid support in her home for her son’s visits. The Council considered this, but its starting position was that Mr K had a full package of care at his supported living home and the hours of his support was considered by the court to be enough to meet his needs. The Council said that if Mrs B could not support him in her home, she could take him back to his supported living unit. The case notes show that it did take into consideration that Mrs B did not want to provide that level of support on Mr K’s visits.
39. The Council did however provide support for Mrs B to implement the care plan. From the observations of the support worker who visited Mrs B and Mr K at her home, the Council has offered Mrs B direct payments to have a personal assistant to support Mr K for ten hours per weekend visit. Mrs B says the amount on offer is not sufficient. However, she needs to make that complaint to the Council before it can be considered by the Ombudsman.
40. Mr K does not have capacity to manage his finances and the court of protection appointed the Council to do this on his behalf. Mrs B says the Council does not give Mr K enough spending money to cover the things he wants to do when he visits Mrs B. The Council has explained that it has carefully looked at Mr K’s finances. He only has benefit income and the Council must make sure that he can meet all his essential expenditure as well as save for bigger things like holidays. There is no fault in how the Council has approached the money it allows Mr K to spend when he is with Mrs B. If she thinks the Council is mis-managing Mr K’s money then she can raise a concern with the Office of the Public Guardian about this.

Conclusions

41. I can appreciate that Mrs B works very hard to make sure that her son is getting the right care and is treated properly. I can see that this situation is very difficult for Mrs B. However, there is no fault by the Council in the matters that I am able to investigate.

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Final decision

42. I have completed my investigation. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman