Summary: Miss X complained about the Council’s handling of her care and support arrangements. We found no fault in the Council’s consideration of the issues raised around Miss X’s care and support, or in its decision making.

The complaint

1. Miss X complained about the Council’s handling of her care and support arrangements. She said the Council did not listen to her or understand her feelings.
2. The Council decided Miss X lacked capacity to manage her finances and applied for appointee-ship. It also decided she lacked capacity to decide on her care and support arrangements and changed her personal assistant. Miss X disagreed with those decisions.
3. Miss X wanted her partner to stay with her overnight, but this is not permitted in supported accommodation. Miss X wanted to move out of supported accommodation and into the community, but the Council said no.

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The Ombudsman’s role and powers

4. 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)
5. 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(1), as amended)

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How I considered this complaint

6. As part of the investigation, I considered the complaint and the information Miss X provided.
7. I made written enquiries of the Council and considered its response along with relevant law and guidance.
8. Miss 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

Care assessments

9. 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. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
10. 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.
11. 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. Councils should consider a light touch review six to eight weeks after agreeing and signing off the plan and personal budget. 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

12. 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.

Mental capacity

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 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.
14. 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.

15. 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.
16. 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?

17. 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.

Best interest decisions

18. 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.

Safeguarding

19. 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. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

What happened

20. I have summarised below some key events leading to Miss X’s complaint. This is not intended to be a detailed account of what took place.
21. Miss X has cerebral palsy and a learning disability. She is also partially sighted.
22. Miss X lives in extra care supported accommodation. She needs support with most aspects of daily life, such as medication, clothing, hygiene, toileting, food and nutrition, and managing her home.
23. Miss X initially received support from carers at the accommodation for 18 hours a week. She also had a cord to alert carers in case of an emergency or falls.
24. The Council held safeguarding discussions in May 2024 after staff at Miss X’s accommodation reported people were staying overnight at Miss X’s flat, such as her partner. This was getting in the way of carers providing care. A carer also found Miss X locked out of her flat by a guest, and Miss X’s partner was gambling using her money. Miss X would not consent to a safeguarding investigation.
25. Miss X expressed a wish to move to new accommodation.
26. The Council held a professionals meeting in June 2024 after more safeguarding incidents.
27. Miss X’s partner had left her alone in a restaurant after taking money from her and taking her bank card. Miss X’s partner also had the keys to her home. The restaurant called the Police and the Council arranged for Miss X’s locks to be changed.
28. Miss X also had a fall and broke her arm.
29. The Police arrested Miss X’s partner and set bail conditions meaning he was not allowed to have contact with Miss X.
30. Miss X was the victim of a serious sexual assault in June 2024 which occurred at a house party she attended. An independent domestic violence advocate (IDVA) was allocated to Miss X.
31. A manager at Miss X’s care provider asked the Council to review Miss X’s care needs in July 2024 due to decline in her mobility.
32. Miss X telephoned the Council on 30 July advising she wanted to move in with her partner at his flat, which she was paying rent for. The Council asked if Miss X was aware of risks of living in the community and what support she would need.
33. The Council completed a reassessment of Miss X’s needs in August 2024 for a change from a commissioned care service to a direct payment to employ a PA.
34. Her current care was for 18 hours a week. However, carers could not meet all her needs. She needed a 25-hour weekly care package made up of:
35. A 60-minute morning call, 45-minute lunch call, 30-minute tea call, 45-minute evening call, a domestic call, laundry, shopping for 2 hours a week, and 2 hours a week community access.
36. An officer visited Miss X and her father about setting up the direct payment. An unknown man was in Miss X’s flat. Miss X’s father said the man, and others, stay at Miss X’s home. Items go missing, and they take her benefit money. Miss X denied this.
37. Miss X telephoned the Council on 20 August after finding drugs in her flat when a man stayed there for a few days. The man was a friend of her partner’s and brought another man with him. The Council asked Miss X what she was going to do to stop these kinds of people coming to her home. She said she would change her phone number. Miss X discussed the fact her partner is not allowed at her accommodation. She did not know who made the decision and wanted to know the reason. The Council told Miss X not to let people in her home or the building and to call the Police if she needs to.
38. Two PAs, arranged by Miss X’s father, started caring for Miss X on 21 August 2024.
39. Miss X’s IDVA made a safeguarding referral to the Council on 28 August after Miss X disclosed abusive behaviour by her partner as well as coercive and controlling behaviour, financial abuse, verbal, emotional and sexual abuse. They identified Miss X does not understand what a healthy relationship is and is therefore unable to manage her own risk.
40. The Council contacted Miss X about the referral. She did not want the Council to take any action.
41. An officer met Miss X about the direct payment again on 9 September 2024. Miss X wanted to employ a third PA, who was present at the time. Miss X agreed to send an email stating how many hours each carer could do. Miss X also mentioned she may want to move and be a lodger at the third PAs home.
42. Miss X told the Council she wanted the current PAs to reduce their hours to 7.5 and 5 hours respectively so that her new PA could work 12.5 hours. The Council asked if Miss X had discussed this with her current carers, which she had not.
43. Miss X’s father emailed the Council with concerns about the new PA on 30 September. He said the new PA was Miss X’s partner’s landlord, and Miss X had signed the tenancy agreement as a joint tenant. He said the new PA signed the agreement as both tenant and witness, which is unacceptable. He said Miss X already has a tenancy and the PA has not considered her disabilities. He said this raised serious safeguarding questions.
44. Miss X’s father emailed the Council again on 2 October 2024. He said it came to light from looking at Miss X’s bank statements that from 21 November 2023 she paid over £11,000 to her partner and over £2,000 to her proposed new PA. She also paid nearly £1,000 to a friend of her partner’s. He said Miss X did not have possession of her bank cards, and a third party was spending her money. Meanwhile, Miss X was in arrears of nearly £9,000 for her rent and care package. He said the Council failed to safeguard Miss X and asked for its support in stopping the abuse.
45. Miss X’s existing PAs were not prepared to reduce their hours, so Miss X terminated their employment and gave the full 25 hours of care to the proposed new PA. The new PA started caring for Miss X on 14 October 2024.
46. The Council started safeguarding enquiries, including completing a mental capacity assessment for Miss X’s finances. Bail conditions for Miss X’s partner had expired after she withdrew her statement that he was financially abusing her, so he could visit at her accommodation again.
47. Miss X’s social worker met her later in October 2024 to complete a mental capacity assessment. This was to decide if Miss X had capacity to make an informed decision on managing her financial affairs, including potential risks.
48. This was following five separate safeguarding referrals about financial exploitation and abuse since January 2024.
49. Miss X’s social worker used bank statements and bills to explain why Miss X was in arrears for her rent, council tax, utility bills, and care home charges. They considered Miss X showed an understanding of the information but could not retain information on the decision about managing her finances and avoided answering questions. They decided Miss X lacked the ability to use and assess the information and could not say how she would manage her finances effectively.
50. Miss X’s social worker considered whether Miss X simply made unwise decisions, but considered she is in debt because she is vulnerable, cannot manage her finances, and others took advantage of her.
51. The Council decided Miss X lacked capacity to manage her finances.
52. The Council completed a best interest decision and decided to apply for appointee-ship to manage Miss X’s finances. Miss X declined the offer of an independent advocate.
53. On 24 October 2024, Miss X’s IDVA told the Council a receptionist at her accommodation saw Miss X’s new PA push her in a lift, and the PA writes incorrect times in the visitor book to make it appear they are there longer than they are. The receptionist also emailed the Council confirming this.
54. Miss X told the Council her disability did not mean she cannot make her own decisions. She said everyone was against her and did not work with her. She was happy supporting her partner and said she will carry on doing so. She also said she was happy with her new PA. She accused the Council of interfering and asked it to stop.
55. Miss X telephoned the Council to ask about living with her partner. She understood he could not move in at her current home but said they could move to another place. The Council said it would address this at an upcoming meeting.
56. The Council made a best interest decision to end the new PAs employment to safeguard Miss X on 4 November 2024. It put a commissioned package of care and support in place while it reviewed Miss X’s care arrangements.
57. Miss X’s social worker met Miss X twice in November 2024 to complete a mental capacity assessment. This was to decide whether Miss X has capacity to make decisions on her care and support needs.
58. Miss X’s social worker considered Miss X could understand some information relating to decisions but does not understand the risks if she did not have care or refused it, or that carers might not always treat her properly. They considered Miss X could not understand or retain all the information related to the decision. This was because she could not take on board the information and was vague about what would happen if she did not have the support she needed or if she refused it. They considered Miss X lacked the ability to use and assess the information in relation to her care and support needs.
59. The Council therefore decided Miss X lacked capacity to make decisions on her care and support needs.
60. Miss X complained about the Council’s decision to remove her PA. She also complained the Council would not let her partner stay overnight with her. She said the Council was interfering in her personal matters and not listening to her. She wanted the Council to reassess her care package.
61. The Council responded to Miss X’s complaint in December 2024. It said:
• It completed a reassessment of Miss X’s needs in October and then reviewed her support plan in November.
• Miss X’s tenancy at the extra care supported accommodation is for a single occupier, and her partner therefore cannot stay overnight. She is allowed visitors, but they cannot stay overnight.
• The direct payment team raised concerns about Miss X’s financial contribution and her social worker visited to discuss this, along with safeguarding concerns.
• Professionals were concerned Miss X’s PA pushed her into a lift, used an unprofessional tone during a phone call, and acted in a way that was not professional or empathetic towards Miss X. The Council’s adult social care team had concerns about controlling and coercive behaviour, financial exploitation and emotional and physical abuse. It therefore decided to give Miss X a commissioned package of care while it completed a review. Following the review, the Council reinstated Miss X’s direct payment with new PAs to replace to the previous PA.
• It had significant concerns about Miss X’s partner, including controlling and coercive behaviour, emotional and psychological abuse, and financial exploitation. The Council completed a mental capacity assessment which concluded Miss X lacked capacity to make decisions about her finances. The Council planned for its Customer Financial Affair Services to help Miss X manage her finances.

My investigation

62. The Council told me it involved Miss X in decision making on her care needs and the safeguarding process. It considered her views and wishes and balanced them against the views of her family and professionals involved in her care.
63. At times, the Council said it could not agree to Miss X’s requests, as it had a duty to prioritise safeguarding concerns, such as when she wanted to continue employing her PA. The Council worked with Miss X to agree a direct payment, and a recent review showed she is satisfied with how her care needs are met.
64. The Council had safeguarding concerns about Miss X’s partner. In responding to those concerns, the Council tried to balance Miss X’s wish to live in the community with its duty to ensure she receives a suitable package of care that addresses her needs safely. Miss X’s current accommodation does not allow visitors to stay overnight, and the Council had to consider the potential for significant harm and prioritise Miss X’s safety and wellbeing.
65. The Council said it considered Miss X’s human rights, such as her right to a private and family life. However, it had significant safeguarding concerns about Miss X’s partner and her interactions with strangers who she brings home.
66. The Council acknowledged Miss X feels it has not listened to her wishes, but its decisions were guided by its responsibility to minimise risk of harm and ensure care arrangements remain safe and sustainable.
67. The Council said it will consider Miss X’s wish to live in the community as part of an upcoming review. It will also carry out another mental capacity assessment of Miss X’s care and support needs and follow this up with a best interest decision.

Analysis

68. I found the Council spoke with Miss X when it received safeguarding referrals or reports of concerns for her wellbeing. The Council listened to Miss X’s views and did not proceed with safeguarding investigations when she asked the Council not to.
69. However, as the situation escalated and the Council received more reports about potential abuse it had a duty to act to safeguard Miss X.
70. In terms of Miss X’s support needs, I found the Council followed her wishes by allowing her to have a direct payment, and by helping her when she wanted to employ her partner’s landlord as a new PA.
71. I appreciate Miss X was upset when the Council terminated the new PA’s employment. However, the Council received safeguarding referrals with serious concerns about the care the new PA provided, as well as about physical, emotional and financial abuse. The Council therefore considered it was in Miss X’s best interests to replace the PA with a commissioned care package, and I do not criticise the Council for its actions.
72. The Council carried out mental capacity assessments for Miss X’s care and support needs and financial decisions. It found she lacked capacity. I appreciate Miss X disagrees with those decisions, but I have not seen evidence of fault in the way the Council conducted the assessments. It involved Miss X in the process and gave clear reasons for its decisions. I cannot criticise the Council’s professional judgement in deciding Miss X lacked capacity.
73. I appreciate Miss X would like control of her own money. However, given the safeguarding concerns, and the result of the financial mental capacity, the Council decided it was in Miss X’s best interests for her money to be handled by a third party. I did not see evidence of fault in the way the Council reached that decision.
74. Miss X would like to live with her partner or in the community. The Council has so far been unable to agree to Miss X’s requests, due to her care needs and concerns about her safety and wellbeing.
75. Miss X is at risk of falls and has problems with mobility. Even when receiving direct payments, Miss X still had support from staff at the accommodation in case of falls or emergencies.
76. There were several occasions where Miss X had falls, outside when accessing the community, and inside her flat where she needed to call on carers to help.
77. There is also evidence of decline in Miss X’s condition and an increase in her needs over the time of the complaint.
78. The Council also had concerns about Miss X’s partner, the people she allows to stay in her home, and the risk of further financial abuse.
79. I did not see evidence of fault in the Council’s consideration of the issues, or in its decision that Miss X’s care and support needs are best met in supported accommodation.
80. The Council has agreed to re-consider Miss X’s request to live in the community, and to re-assess her mental capacity assessment around her care and support needs. This shows the Council’s willingness to listen to Miss X’s wishes and keep the situation under review.
81. When doing so, the Council should weigh Miss X’s needs, vulnerability, and the associated risks, against her right to a private and family life.

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Final Decision

82. I found no fault in the Council’s consideration of the issues raised around Miss X’s care and support, or in its decision making.

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Investigator's decision on behalf of the Ombudsman