Summary: Mr X complained the Council delayed agreeing to fund a supported living placement, offered him three unsuitable options, failed to keep his representative up-to-date and refused to arrange a best interests meeting. The Council carried out the mental capacity assessment process properly but delayed consulting alternative placements, delayed recognising the placement Mr Y had identified was the only suitable placement and failed to keep Mr Y up-to-date. That caused Mr Y distress. An apology, payment to Mr Y and process changes are satisfactory remedy.

The complaint

1. The complainant, Mr X, is represented by his father, Mr Y. Mr Y complained the Council:
• delayed agreeing to fund a supported living placement for Mr X, despite the fact the placement he identified was the only suitable provider;
• offered Mr X three unsuitable options, none of which met his needs;
• failed to keep Mr Y up-to-date with what was happening; and
• refused to arrange a best interests meeting when asked to do so.
2. Mr Y says the Council’s failures delayed Mr X moving into supported living accommodation and caused him, Mr Y, significant distress.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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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What I have and have not investigated

7. I have exercised the Ombudsman’s discretion to investigate what has happened since April 2023. That is because Mr X spent a lot of time without a social worker and Mr Y has not let the matter drop.

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How I considered this complaint

8. As part of the investigation, I have:
• considered the complaint and Mr Y's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
9. Mr Y and the organisation 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 and support statutory guidance

10. Where the care planning process has determined that a person’s needs are best met in a care home, the local authority must provide for the person’s preferred choice of accommodation, subject to certain conditions. This also extends to shared lives, supported living and extra care housing settings. Determining the appropriate type of accommodation should be made with the adult as part of the care and support planning process, therefore this choice only applies between providers of the same type.
11. The local authority must ensure the person has a genuine choice of accommodation. It must ensure at least one accommodation option is available and affordable within the person’s personal budget and it should ensure there is more than one of those options. However, a person must also be able to choose alternative options, including a more expensive setting, where a third party or in certain circumstances the resident is willing and able to pay the additional cost (‘top-up’). However, an additional payment must always be optional and never as a result of commissioning failures leading to a lack of choice.
12. The local authority must take into consideration the individual’s preferences. The authority should consider the person’s goals in approaching the authority for support, and the level or nature of support desired.
13. In determining how to meet needs, the local authority may also take into reasonable consideration its own finances and budgetary position, and must comply with its related public law duties. This includes the importance of ensuring the funding available to the local authority is sufficient to meet the needs of the entire local population. The local authority may reasonably consider how to balance that requirement with the duty to meet the eligible needs of an individual in determining how an individual’s needs should be met (but not whether those needs are met). However, the local authority should not set arbitrary upper limits on the costs it is willing to pay to meet needs through certain routes – doing so would not deliver an approach that is person-centred or compatible with public law principles. The authority may take decisions on a case-by-case basis which weigh up the total costs of different potential options for meeting needs, and include the cost as a relevant factor in deciding between suitable alternative options for meeting needs. This does not mean choosing the cheapest option; but the one which delivers the outcomes desired for the best value.
14. The Mental Capacity Act (MCA) requires local authorities to assume people have capacity and can make decisions for themselves, unless otherwise established. This means local authorities cannot assume someone cannot make a decision for themselves just because they have a particular medical condition or disability.
15. If a local authority thinks a person may lack capacity to make a decision or a plan, even after they have offered them all practicable support, a social worker or other suitably qualified professional should carry out a capacity assessment in relation to the specific decision to be made.
16. Where an individual has been assessed as lacking capacity to make a particular decision, then the local authority must commence care planning in the person’s best interests under the meaning of the MCA.
17. Working out what is in someone else’s best interests may be difficult, and the MCA requires people to follow certain steps to help them work out whether a particular act or decision is in a person’s best interests. In some cases, there may be disagreement about what someone’s best interests really are. As long as the person who acts or makes the decision has followed the steps to establish whether a person has capacity, and done everything they reasonably can to work out what someone’s best interests are, the law should protect them.
18. Section 4 of the MCA provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests. That includes finding out the person’s views and, if practical and appropriate to do so, consult other people for their views about the person’s best interests and to see if they have any information about the person’s wishes and feelings, beliefs and values.

What happened

19. Mr X is an adult with severe learning disability and autism. Mr X lived at home, supported by his parents. At an assessment in April 2023 Mr X’s mother asked the Council to begin the process for identifying a supported living placement for Mr X. The Council agreed to assign a social worker, when available.
20. The Council assigned a social worker in June 2023. The social worker visited Mr X and his parents at home in July. At that meeting Mr X’s parents told the social worker they had identified a suitable independent living placement with care provider A.
21. The social worker telephoned care provider A to get some more information about the supported living options and asked it to provide costings. Care provider A provided some costings in November. At that point the social worker assigned to Mr X left.
22. The Council’s brokerage team considered the costings care provider A had provided. The brokerage team suggested considering alternatives. Council officers tried to contact Mr Y in December but were unsuccessful.
23. The Council assigned a new social worker to Mr X and that social worker contacted Mr Y in February 2024. The social worker arranged for a mental capacity assessment, which took place on 28 February. That assessment decided Mr X did not have capacity to make a decision about where to live. The social worker noted Mr X’s parents wanted a placement at care provider A. The result of the best interest decision was for the Council to find suitable alternative accommodation that met Mr X’s needs.
24. Mr Y chased the Council for progress in March. The Council assigned a new social worker at the beginning of April.
25. The new social worker met with Mr X’s parents on 15 May. Mr X’s parents repeated they wanted Mr X to move to the placement with care provider A. The social worker explained the process which involved identifying suitable placements before putting the case to the funding panel.
26. The social worker made a referral to brokerage in June and the brokerage team began consulting alternative care providers. That resulted in three providers offering an assessment. After visiting the providers Mr X’s parents told the Council they had chosen care provider A and explained why the other providers were not suitable.
27. In August the Council contacted care provider A to ask for a decrease in costs to remove the daycare element. Care provider A explained why it could not do that. The Council also carried out some checks on care provider A but could not identify any registered report with the care quality commission.
28. Mr Y chased the Council for progress on 24 August and 7 September. The Council told Mr Y it would present the case to its funding panel.
29. The Council’s funding panel considered the case on 17 September. The funding panel asked brokerage to explore other providers due to the cost of the package which included daycare and transport. The panel also queried why Mr X was not eligible for continuing healthcare. The panel asked for the social worker to return the case to a later panel when the further information became available.
30. The Council contacted Mr X’s parents on 7 October to ask for further evidence to pursue the continuing healthcare checklist. The Council explained it had told the panel the other two placements it had identified were not suitable due to Mr X’s complex needs. The Council encouraged the parents to work with the brokerage team to identify a suitable placement.
31. The Council made further referrals to other providers in October but none of those providers made an offer.
32. In December the Council contacted care provider A to ask it to provide new costings. The costings care provider A sent to the Council were the same as those previously provided.
33. Mr Y provided the Council with details from Mr X’s psychologist. That suggested Mr X slept well throughout the night without any interruptions. The Council therefore contacted care provider A in January 2025 to ask it for new costings to take out waking nights. Care provider A told the Council it could reduce the proposed night support to a one quarter share. That reduced the overall cost.
34. Mr X’s parents chased what was happening on 4 February. The Council sent Mr X’s parents a holding response.
35. The social worker returned the case to the Council’s funding panel on 18 March. The funding panel deferred the decision to ask for details of the options explored and the comparison cost. The social worker returned the case to the panel on 9 April and the funding panel agreed to fund care provider A.

Analysis

36. Mr Y says the Council delayed agreeing to fund a supported living placement for Mr X despite the fact care provider A was the only suitable provider. Mr Y says the Council offered Mr X three unsuitable options which did not meet his needs. Mr Y also says the Council failed to keep him up-to-date with what was happening.
37. The evidence I have seen satisfies me the Council took relatively prompt action to assign a social worker and carry out an assessment between April and July 2023. I have seen no evidence to suggest care provider A gave the Council information around costings to support the placement until November 2023. I therefore have no grounds to criticise the Council before then.
38. I am concerned once the Council received the costings from care provider A there was then a significant delay looking for an alternative supported living accommodation placement for Mr X. I have seen no evidence the Council began looking for alternatives until June 2024. I am satisfied most of those delays were due to changes in social worker which meant there was some drift in progression of the case. Those delays are fault.
39. Mr Y says the Council failed to contact care provider A to try to negotiate a reduced cost until 2025. That is not supported by the documentary evidence. The documentary evidence shows the Council asked care provider A to reduce its cost in August 2024 and care provider A declined to do so at that point.
40. Mr Y raised concerns about the suitability of the three options the Council put forward. While the Council suggests those options were suitable, the documentary evidence shows that at least by October 2024 the Council recognised the placements were not suitable for Mr X. That was because the placements were occupied by adults over the age of 60 and were therefore not a suitable peer group. Given Mr Y had raised exactly those concerns about the placements I am concerned it took the Council until October 2024 to accept that. That again delayed the overall process.
41. I do not criticise the Council though for looking for alternative providers, particularly given the cost for the placement at care provider A. The care and support statutory guidance is clear councils can consider the cost of a placement when making decisions. I therefore do not criticise the Council for looking for alternative, potentially cheaper, placements. My concern is though the Council delayed doing that which then delayed Mr X moving into care provider A’s supported living placement. I consider it likely, if the Council had begun looking for alternative placements earlier it would have identified sooner that care provider A was the only suitable placement available for Mr X.
42. Mr Y says the Council failed to hold a best interests meeting which could have progressed the case quicker. I am satisfied the Council carried out a mental capacity assessment, followed by a best interests decision, in February 2024. There is no requirement for the Council to hold a separate best interest meeting. In this case I am satisfied the Council considered Mr X’s parent’s representations and contacted the day centre for information. I therefore do not consider the Council at fault for how it handled the mental capacity assessment process.
43. I am concerned though with how the Council kept Mr Y up-to-date with what was happening. It is clear from the documentary records Mr Y repeatedly chased the Council for updates. I consider it likely some issues around communication happened because of the changes of social worker, which were outside the Council’s control. Failure to keep Mr Y up-to-date though is fault.
44. I am satisfied because of the fault I have identified Mr Y suffered a significant injustice as he experienced frustration and distress at the delays that have occurred. I also consider it likely, on the balance of probability, if the Council had handled the case properly Mr X would have moved into the accommodation with care provider A by the end of 2024 or early 2025.
45. I do not consider it likely that had a significant impact on Mr X given his lack of capacity to understand the need for him to move out of the family home. I consider the injustice is mainly to Mr Y and his wife as it is clear from the documentary evidence they were struggling to maintain their caring role for Mr X. To remedy that I recommended the Council apologise to Mr X and his wife and pay them £500. I also recommended the Council put in place a process to ensure oversight of cases when social workers are changed so decisions are not delayed and the case is not allowed to drift. The Council has agreed to my recommendations.

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Action

46. Within one month of my decision the Council should:
• apologise to Mr Y and his wife for the distress and frustration they experienced due to the faults identified in this decision. The Council may want to refer to the Ombudsman’s updated guidance on remedies, which sets out the standards we expect apologies to meet;
• pay Mr Y £500; and
• put in place a process to ensure oversight of adult social care cases when social workers are changed to ensure decisions are not delayed or the case left to drift.
47. The Council should provide us with evidence it has complied with the above actions.

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Final decision

48. I find fault causing injustice. The Council has agreed actions to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman