Summary: Mr X complained about the way the Council dealt with Mr Y’s care and support needs. The Council was at fault for delaying in completing a safeguarding enquiry, best interest process and needs review and for inconsistent communication. This caused Mr Y and his representatives distress and uncertainty. The Council should apologise and provide an action plan on how it will complete the best interest process.

The complaint

1. Mr X complains on behalf of Mr Y about the way the Council dealt with Mr Y’s care and support needs. He says the Council:
1. failed to take action on a safeguarding referral;
2. failed to meet Mr Y’s needs as identified in a care act assessment;
3. wrongly claimed Mr Y’s care provider could not meet his eligible needs;
4. proposed to move Mr Y to a care home, without consultation with his support network and against his wishes, despite specialist advice that a move would cause him harm; and
5. wrongly said that Mr Y was aware of its decision for him to move to a care home.
2. Mr X says this caused Mr Y’s family to lose trust in the Council. He also says this will cause Mr Y distress as he will be forced to leave a placement that he has lived in for many years.

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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 future 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)
5. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I have and have not investigated

7. I have not investigated Mr X’s complaint that the Council wrongly said that Mr Y was aware of its decision for him to move to a care home. This is because I cannot see that Mr X complained to the Council about this issue. The law says we cannot normally investigate a complaint. unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply.
8. I have investigated the remainder of Mr X’s complaint.

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How I considered this complaint

9. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
10. Mr X and the Council 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

Legislation and guidance

Reviews

11. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. The Care and Support Statutory Guidance (CSSG) explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. The council should act promptly after receiving a request for a review. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
12. A council should revise a care and support plan where circumstances have changed in a way that affects the plan. Where there is a proposal to change how to meet eligible needs, a council should take all reasonable steps to reach agreement with the adult about how to meet those needs. (Care Act 2014, sections 27(4) and (5))

Mental Capacity Act

13. 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 how to make a decision on behalf of somebody who cannot do so.

Best interest decision making

14. 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.
15. 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.

Safeguarding

16. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect (section 42, Care Act 2014).

Surrey safeguarding adults board

17. The local safeguarding adults board says it has implemented a principle of “no delay” where the safeguarding response is made in a timely fashion with due consideration to the level of presenting risk.

Independent Mental Capacity Advocate (IMCA)

18. An IMCA is a legal safeguard for people who lack capacity to make certain decisions. An IMCA supports the person and represents them in discussions, provides information to help work out what is in their best interests and presents the person’s views to the decision maker.

Background information

19. Mr Y has dementia, a learning disability and mental health issues. He has been living with the same supported living provider (the Provider) for many years. Mr X says when Mr Y moved to the placement, he had a level of independence, but his needs increased following the dementia diagnosis a few years ago.
20. In June 2023, a social worker completed a needs assessment with Mr Y. This concluded that Mr Y now needed 24-hour support with most aspects of his daily living, as his dementia was progressing. Mr Y’s support plan noted he had a care package which included sleeping night staff.

Safeguarding

21. In early September 2023, the Provider made a safeguarding referral to the Council. It said Mr Y had tried to get out of bed several times, setting bed alarms off and later in the night, it found Mr Y on the floor with a grazed face.
22. The same day, the Provider asked the Council to complete an urgent review of Mr Y’s care needs because they considered his needs had changed since June.
23. The Council decided to complete a safeguarding enquiry because there had been an unwitnessed fall that led to Mr Y being injured.
24. As part of the enquiry, a social worker contacted Mr Y’s brother who asked the Council to review Mr Y’s care as he thought he might need a change of provider. Mr Y’s brother however says he did not tell the Council Mr Y might need a change of provider.
25. The social worker finished the safeguarding enquiry in February 2024, deciding there was no evidence of abuse or neglect but recommended a review of Mr Y’s care and support.

Mr Y’s care and support

26. In November 2023 the Provider again asked the Council to complete a review of Mr Y’s care needs.
27. Mr X also says he has evidence that a nurse asked the Council to complete a review of Mr Y’s care needs around the same time.
28. In March 2024, a social worker sent the needs assessment from June 2023 to Mr Y with a covering letter. This said that this assessment explained how the Council had reached a decision about his eligibility. It also said he could approach the Council if his needs changed for a reassessment.
29. Later that month, the Council held a multi-disciplinary meeting, with partners from health, the Provider and an IMCA. During this meeting the Provider said:

• Mr Y needed more support, he could no longer carry out his own personal care and was at high risk of falls, which was unmanageable without waking night staff; and
• it had been providing waking night staff without funding since November 2023, as it felt the risks of harm to Mr Y were too high without this. Mr X said that since this waking night support started, Mr Y had not had any falls and considered this support met his needs.

30. The Council said it needed more evidence from the Provider about this need.
31. The notes of this meeting showed it discussed that Mr Y’s current home would likely be the most appropriate for him longer term, but the Council would need to refer Mr Y to its brokerage team to check if there were any other suitable accommodation options for him. The Council also said it would complete a needs assessment as soon as possible, followed by the best interest process to determine the most suitable accommodation option for Mr Y.
32. Mr X complained to the Council on behalf of Mr Y about the same issues as this complaint in April.
33. Shortly after this, the Council held an internal meeting. The meeting concluded it would be in Mr Y’s best interest to move to a residential care home with 24-hour care. But, a manager decided there was not enough information to make this decision at present and asked a social worker to make a referral to its brokerage team to consider residential options. They also said the social worker should gain further evidence of nighttime incidents from the Provider and consider assistive technology options. It concluded the threshold was not currently met to change funding or the support plan.
34. Internal Council records from June noted that as a best interest meeting had not been held, it could not confirm if/when Mr Y would move from his current Provider. It said this process needed to be followed to make this decision.
35. A few weeks later, the Council held another internal meeting. It decided that although the Provider was happy to continue to support Mr Y, he should move to a residential care home. This was because the Provider was not commissioned to support people with dementia. A Council manager noted they agreed with this decision, but that the best interest process should be completed quickly.
36. The Council responded to Mr X’s complaint at the end of June. It said:

• it apologised that the needs assessment completed in June 2023 incorrectly recorded that Mr Y needed waking night support. It said this was because the social worker had taken the view of the Provider and Mr Y’s family, but did not specify her professional view; and
• it upheld the complaint that there had been a delay in deciding the most suitable accommodation option to meet Mr Y’s needs and added it had now found a suitable option for new accommodation and Mr Y’s family was aware.

37. In early July, a social worker was assigned to complete a best interest decision about where Mr Y should live.
38. Case records from August show that a manager recorded that the Council had been seeking alternative providers for Mr Y, to enable a thorough best interest process to be completed.
39. In mid-October, a social worker completed a needs assessment review. Mr Y, a social worker, an IMCA and two people from the Provider all attended the review meeting and noted:

• there was an ongoing best interest process to decide where Mr Y should live;
• the Provider was still providing unfunded waking night support; and
• Mr Y now needed support with all personal care.

40. Following the review, the social worker updated Mr Y’s support plan, but did not include waking night support funding.
41. Shortly after this, a best interest meeting took place. Mr Y’s IMCA, a nurse and Mr Y’s brother all decided that Mr Y should remain with his current provider. But, the Council decided it was not feasible for Mr Y to remain at the Provider because it could not meet his needs. They named a new identified provider which was a residential care home where he would have his needs met 24 hours a day.
42. The social worker recorded that most professionals believed it was in Mr Y’s best interests to remain at his current placement. The social worker noted she did not share her opinion in this document as she had to discuss with a panel first.
43. The best interest process continued.

Analysis

The Council failed to take action on a safeguarding referral

44. The Provider sent a safeguarding referral to the Council in September 2023. A social worker finished the safeguarding enquiry in February 2024 and decided that a review of Mr Y’s care and support needs should be completed.
45. There is no timeframe in place for how long it should take for a safeguarding enquiry to be finished, but we expect enquiries to be completed within a reasonable timeframe. In this case, the Council delayed completing the enquiry for five months. This delay was fault, which caused Mr Y’s representatives uncertainty about how it was managing potential safeguarding concerns.
46. In addition to this, despite deciding in February 2024 that Mr Y needed a review, the Council delayed in completing this. I have explained more about this issue below.

The Council failed to meet Mr Y’s needs as identified in a care act assessment and wrongly claimed Mr Y’s care provider could not meet his eligible needs

47. At the time of Mr X’s complaint, Mr Y’s support plan was from a review in June 2023. Between September and November 2023, the Provider, Mr Y’s brother and a nurse all asked the Council to complete a review of Mr Y’s care needs as they considered these had changed since June 2023. The Council seemed to agree with the need for a review because it identified this in its safeguarding enquiry in February 2024.
48. The CSSG says a council must conduct a review, within a reasonable timeframe, if an adult or a person acting on the adult’s behalf makes a reasonable request for one.
49. Despite the reasonable requests for a review, and the Council identifying the need for one, it took the Council until October 2024 to do this. This delay of 13 months is fault which caused Mr Y’s representatives uncertainty about Mr Y’s care and support.
50. This delay also means we cannot know what Mr Y’s care and support needs were between September 2023 and October 2024 when the Council completed the review. Because of this we cannot make findings on whether the Council was meeting Mr Y’s identified needs or whether the Council wrongly claimed the Provider could not meet these, as we do not know what Mr Y’s care needs were.

The Council proposed to move Mr Y to a care home, without consultation with his support network and against his wishes, despite specialist advice that a move would cause him harm

51. I note that the Council has, at times, provided inconsistent communication about its plan for Mr Y’s care and support. This included noting in May 2024 in an internal meeting that it would be in Mr Y’s best interest to move to a residential care home and in its complaint response in June 2024 saying that it had identified new suitable accommodation for Mr Y.
52. However, internal Council notes, and the actions of the Council evidence that it was following the best interest process, which is the appropriate process for determining what would be in the best interest of a person who lacks capacity to make certain decisions, which is the case for Mr Y.
53. Although the Council has evidenced it was following the best interest process, there was a significant delay in doing so. The issues with Mr Y’s care from the Provider were identified in September 2023 but it took until July 2024 to allocate a social worker to start this process and until October 2024 to hold the first best interest meeting. I find fault in the Council’s inconsistent communication of the plan for Mr Y’s care and the delay in the best interest process. This caused Mr Y’s representatives distress and uncertainty.
54. The Council has evidenced it is now following the best interest process. Guidance says if there is a conflict about what is a person’s best interest, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interest. If there continues to be a dispute between Mr Y’s representatives and the Council, the Court of Protection should be considered.

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Action

55. Within four weeks of our final decision, the Council will:
• apologise to Mr Y and his representatives for the identified faults. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making its apology;
• provide an action plan on how it intends to finalise the best interest process about where Mr Y will live.
56. The Council should provide us with evidence it has complied with the above actions.

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Investigator's decision on behalf of the Ombudsman