Worcestershire County Council (18 010 645)

Category : Adult care services > Other

Decision : Upheld

Decision date : 29 Nov 2019

The Ombudsman's final decision:

Summary: Mrs X complains about Council arranged support for her daughter between April and August 2017. She also complains about a mental capacity assessment carried out in July 2016. The care provider failed to give adequate information about its out of hours service and failed to properly consider whether it was safe for Miss D to travel to the social club on her own in
August 2017. Further, the Council failed to investigate and respond to Mr and Mrs X’s concerns. The Council will apologise and pay
Mrs X £350 for the injustice caused.

The complaint

  1. Mrs X complains about support the Council arranged for her daughter, Miss D, who has learning difficulties, between April and September 2017, which was delivered by Advance. She says carers did not always turn up for sessions, did not seem to have a plan for what to do during sessions, and refused to discuss anything relating to the support with Mr and Mrs X.
  2. Mrs X also complains about the way the Council carried out a mental capacity assessment in July 2016. She also thinks the Council used this inappropriately to justify excluding Mr and Mrs X from their daughter’s life.

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The Ombudsman’s role and powers

  1. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. (section 26A or 34C, Local Government Act 1974)
  2. Miss D has consented to Mrs X bringing this complaint on her behalf.
  3. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves, or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. (Part 3 Local Government Act 1974; section 25(6) & (7) of the Act)
  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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  6. 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)
  7. Mrs X complained in June 2018. We would not usually investigate matters that arose more than 12 months before someone complains unless there are good reasons for not bringing the complaint earlier. It is more difficult to make a robust decision about matters longer ago because written records may be incomplete and we cannot rely on people’s recollections of events. It is also more difficult to provide a meaningful remedy.
  8. I have decided not to investigate Mrs X’s complaints about the way the Council carried out needs assessments in September 2016. This was more than 12 months before Mrs X complained. The assessment was not significantly different from a later assessment in April 2018 that Mrs X is happy with and the support provided as a result of the assessment is also in line with the more recent assessment. Therefore, even if there was some fault in the way the assessment was carried out it is unlikely we could provide a meaningful remedy.
  9. I have also not considered Mrs X’s complaint about misleading information about the costs of care. In response to her complaint, the Council confirmed Miss D did not have to contribute to the care costs for the period in question.
  10. I have, however, exercised discretion to investigate the complaint about the mental capacity assessment in July 2016 because, although it was carried out more than 12 months before the complaint to us, this was a key part of Mrs X’s complaint and had potentially far reaching consequences.
  11. I have exercised discretion to investigate the whole period that care was provided by Advance, which was from March to August 2017. Although some of this period was more than 12 months before the complaint to us, some of it was within the 12 month period we would usually consider. This was an important part of the complaint and was better considered as a whole.
  12. If we are satisfied with a council’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

  1. I spoke to Mrs X and considered the information she provided.
  2. I considered the Council’s replies to my enquiries, including the care records provided by the care provider and the Council’s case notes for the relevant period.
  3. Mrs X and the Council had an opportunity to comment my draft decision and I considered their comments before making my final decision.

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What I found

Relevant law and guidance

Mental Capacity Act

  1. 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 themselves.

Mental capacity assessment

  1. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
    • because he or she makes 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.
  2. 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.
  3. 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:
    • 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?
  4. The person to assess an individual’s capacity will usually be the person who is directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
  5. 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.

Assessment

  1. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual 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.

Care and support plan

  1. Where a person has eligible needs under the Care Act the council must meet these needs. It should provide a care and support plan that sets out how their needs will be met.

What happened

Complaint about the MCA assessment

  1. Mrs X complains on behalf of her daughter, Miss D, who has learning difficulties. In June 2016 Miss D was living in her own flat with a support package. An allegation was made that Miss D had been sexually abused by a neighbour. The police asked the Council to carry out an assessment under the Mental Capacity Act (MCA) to consider whether Miss D had capacity to consent to a sexual relationship. It said this would inform how it carried out its interview with Miss D.
  2. Mrs X says the Council:
    • did not tell the Mr and Mrs X it was carrying out an MCA assessment;
    • did not support Miss D during the assessment;
    • did not consult other professionals, such as the psychiatrist Miss D was seeing; and
    • wrongly decided Miss D had capacity to make her own decisions.
  3. Mrs X says the MCA assessment had lasting implications for Miss D. She says it resulted in the police deciding not to pursue criminal proceedings relating to the alleged sexual abuse. She also says it was used by both the Council and the care provider to justify not talking to them about their daughter.
  4. A social worker, officer 1, met with Miss D on three occasions to discuss her understanding about sexual relationships, consent and awareness of the risks of sexual activity, including pregnancy and sexually transmitted diseases. The Council says Miss D had known officer 1 for about six months then and the meetings were informal so it did not consider further support was needed. On the basis of these discussions, officer 1 concluded Miss D did have capacity to make her own decisions about sexual relationships.
  5. The Council says it did not make a best interests decision on behalf of Miss D and therefore did not consider it needed to consult other professionals. It says the psychiatrist Mrs X refers to only began seeing Miss D after the MCA assessment was completed.
  6. Miss D agreed officer 1 could tell her father, Mr X, that the assessment had been carried out. Council records show officer 1 had a brief telephone conversation with Mr X. She explained she had carried out an MCA assessment. She also said she was now carrying out an assessment of Miss D’s needs. I understand the police interviewed Miss D but later it decided there was not enough evidence to pursue criminal proceedings.
  7. Mrs X says the Council later said it would carry out a further MCA assessment but did not do so. The Council has provided records to show it did consider a further assessment in October 2017 to consider Miss D’s capacity to make decisions about what information to share with her parents. It also agreed it would consult with the psychiatrist. The records show an appointment was made to do the assessment in November 2017 but this was cancelled after Miss D had a panic attack and appears not to have been re-arranged. It is not clear why this was not pursued but the Council understands relationships between Mr and Mrs X and the various agencies improved after this so it was possibly felt that it was no longer required.

My findings – mental capacity assessment

  1. Officer 1 met with Miss D on three occasions to carry out the MCA assessment. I have seen the records for those meetings and the assessment document itself.
  2. The MCA assessment considered whether Miss D had:
    • a general understanding about sexual relationships and consent;
    • a general understanding of the possible consequences of engaging in a sexual relationship;
    • was able to understand, retain, use and weigh up relevant information; and
    • was able to communicate her decision.

The assessment did not consider her capacity to make any other decisions.

  1. There was no requirement to consult other professionals because the Council was not making a “best interests” decision for Miss D. It was simply confirming Miss D could make the decision herself, which is the presumption under the Mental Health Act unless there is clear evidence to the contrary.
  2. Although Mrs X strongly believes officer 1’s decision about her daughter’s capacity was wrong, there is no evidence of fault in the way the assessment was carried out so I cannot criticise the conclusion reached.
  3. Council records show officer 1 did tell Mr X she had carried out the MCA assessment. It is clear from the records that Miss D had only agreed to limited information being shared. The Council was not at fault.
  4. Mrs X says officer 1’s decision meant the police could not pursue criminal action. The records show the assessment was requested to inform how the police conducted their interview with Miss D but there were other factors that influenced their decision not to proceed, including a lack of evidence.
  5. The Council confirmed the MCA assessment was not used for any other purpose. It’s starting point for its dealings with Miss D was that she had capacity to make her own decisions, including decisions about what information it could share with her parents. It acknowledged in a meeting with Mr and Mrs X in October 2017 that this was a difficult question and agreed to a further assessment to consider it. It is not entirely clear why the further assessment was not completed but it seems the parties later agreed on a way forward. Mrs X has confirmed this is not currently an issue.

Complaints about the support provided

  1. Following the sexual abuse issue, Miss D returned to live with Mr and Mrs X but it was envisaged she would live independently again. The Council understood a flat in an assisted block would become available. It suggested the care provider who would support Miss D if she moved there be asked to support her in the meantime. This would provide consistency of support for Miss D. Mr and Mrs X understood the support would involve taking Miss D out socially and, when she moved into her own flat, supporting her with meals and managing the home.
  2. The care and support plan dated March 2017 confirms Miss D needed help “to attend social activities in the community and to meet new people in safe ways”. It also identified support Miss D would need to live independently. It states parental input would “remain but reduce” and that parents would continue to manage
    Miss D’s bills. It also states Miss D needed support from a health support worker to attend appointments to address her alcohol use.
  3. Miss D did move to her own flat but not in the assisted block. This was because the resident who said they wished to move changed their mind about doing so. Mrs X says the support provided was not sufficient, which meant Miss D was not able to remain living independently and is now living with her parents permanently.

Concerns about alcohol

  1. The care provider supported Miss D to attend an evening social club once a week. This included taking her to the club, supporting her whilst she was there and taking her home afterwards. Mrs X says carers allowed Miss D to buy alcohol at the club even though they knew she was vulnerable when she had been drinking. Mrs X says sometimes Miss D would get very drunk and on occasion this led to the police becoming involved. Mrs X also says carers were aware that when Miss D moved into her flat, her neighbours were giving her money to buy alcohol for them and were then giving her some of the alcohol but the care provider did not tell her parents this was happening.
  2. I have seen the care provider’s records, which show that Miss D was buying one alcoholic drink a night at the social club. The records show carers were monitoring how much alcohol Miss D consumed and advising her not to consume alcohol.
  3. The records show that on other occasions carers were aware Miss D had been drinking and found her drunk when they arrived to provide support. There is no evidence carers knew Miss D was getting alcohol from her neighbours. Carers encouraged Miss D to talk though her concerns rather than drink alcohol.
  4. The Council’s records show it was aware that Miss D was drinking at various points because Mrs X was informing it of her concerns. It advised her the care provider could not prevent Miss D buying alcohol during support sessions but would give her guidance around this. From July 2017 the care provider also restricted Miss D’s access to the assisted block to those times she was receiving structured support to minimise the risk of Miss D getting alcohol from residents there.

Findings – concerns about alcohol

  1. The records show carers were monitoring how much alcohol Miss D consumed at the social club and gave her appropriate advice. There is no evidence to suggest they were assisting her to drink.
  2. The records also show the care provider did tell the Council when it was concerned about Miss D’s drinking. On many occasions Mrs X reported her concerns that Miss D was or might be drinking to the Council. It is clear the Council did take these concerns seriously and discussed how the risks could be reduced both with Mrs X and the care provider. However, neither the Council nor the care provider was able to prevent Miss D consuming alcohol. The Council was not at fault.

Unstructured and inappropriate support

  1. Mrs X says she understood the support for the social club would be on a one-to-one basis but carers were often supporting another client as well as Miss D. The care provider said in its complaint response that clients who do not need support at the social club may accompany those that do. It accepted this may not have been made clear at the outset.
  2. Mrs X says there were two other sessions to support Miss D socially. On one session a carer took Miss D with her to dog training. Miss D did not have a dog and Mrs X is unsure why this activity was chosen. Mrs X says the other session was completely unstructured and carers often arrived with no plan for what to do. Mrs X also says she was excluded from the process when the support package was discussed and agreed. She says the care provider also refused to talk to her about how the support was working.
  3. Council records show it told Mrs X about the planned support and informed her about changes to that support from time to time. Council records show that Mrs X was often part of discussions with Miss D about the support she needed and how it was going. However, the Council accept it did not formally go through the needs assessment and support plan with Mrs X.
  4. The Council’s records show when Miss D was asked about her interests she said she was interested in animals and this may be the reason dog training was chosen. The care provider’s records confirm Miss D regularly attended dog training with a carer but not why the activity was chosen. The records show a range of activities on other occasions including swimming, attending the gym, playing board games and going shopping. I understand from Mrs X that Miss D agreed to the broad plan of assistance with social activities and this is in line with the care and support plan.
  5. When Miss D moved into her own flat, the intention was the care provider would support her to live more independently. The records show carers assisted
    Miss D with cleaning her flat and cooking an evening meal on some days. For much of the time, however, the support consisted of having a chat and a cup of tea and going for a walk. There does not appear to have been a plan of specific actions to help Miss D to become more independent. However, the care and support plan shows the support should include encouraging Miss D to share worries and anxieties to support her wellbeing.

Findings – unstructured and inappropriate support

  1. Mrs X is unhappy that Miss D did not receive one-to-one support for the social club. However, the support was specifically to enable Miss D to socialise safely so it was appropriate for another client to be present. This was not fault.
  2. The care provider accepted it may not have clearly explained this to Mrs X at the outset but at that point it was, in any event, consulting primarily with Miss D.
  3. The records do not show that Mr and Mrs X were excluded from the process because the Council kept them informed. However, the support was intended to support Miss D to voice her own wishes and feelings and to live more independently from her parents. For this reason, the care provider manager did try to speak to Miss D directly about arrangements and concerns.
  4. The records do not suggest a specific plan of activities to support Miss D’s independence when she moved into her flat and I accept what Mrs X says about lack of structure around the social activities other than the social club. However, on balance, I do not consider the support to be sufficiently unstructured to warrant a formal finding of fault.

Failure to turn up for session

  1. Mrs X says there was an occasion in early June 2017 when a carer did not turn up for a planned session. Miss D then acquired alcohol from a male client at the assisted block and got very drunk, which later led to the police being called.
  2. The care provider has no record of this incident. The carer recalled on one occasion she was unable to contact Miss D to make arrangements for the support session and later discovered Miss D had changed her number. This is not recorded in the care records and it is not clear if it is the same occasion.

Findings – failure to turn up for session

  1. There is insufficient evidence of what happened in June 2017 so I am unable to make any findings about this. I am critical of the failure to record the carer’s inability to contact Miss D but do not consider this is sufficient to make a formal finding of fault.

Male carer

  1. Mrs X says a male carer was due to provide support for one session in
    August 2017 but Miss D was not comfortable with this. Mrs X says the session was cancelled.
  2. The care provider says a male carer did provide support the day after the date Mrs X mentioned and no concerns were reported.
  3. Council records show it asked Miss D about her reasons for cancelling the support session and she said she was not comfortable with a male carer. She was specifically asked if anything had been said or done that had made her feel uncomfortable and she said “no”.

Findings – male carer

  1. There is insufficient information available now to reach robust conclusions about what happened in relation to the male carer. Council records suggest Miss D was generally uncomfortable with the idea of receiving support from a male carer. However, there is no evidence that Miss D or the family had indicated at the outset that care should not be provided by male carers. It appears that Miss D may have missed one support session as a result and therefore did not suffer a significant injustice.

Out of hours support

  1. Mrs X says the care provider gave Miss D a list of 33 telephone numbers to contact staff if she needed assistance outside her planned support sessions.
    Mrs X says this was inappropriate because Miss D could not access this information due to her learning difficulties. When there was a need for out of hours support the police called the out of hours number given and was told Miss D was not registered for that service.
  2. The care provider says it provides a list of all staff mobile numbers. It says staff will answer their mobile phones when on shift and there is an out of hours number to contact at other times. It says the out of hours service is for telephone advice only and it cannot provide staff to assist clients.
  3. After the incident, Council records show it explained to Mr and Mrs X the care provider would only provide out of hours advice and gave them information about who to contact if there was a further incident.

Findings – out of hours support

  1. The care provider has not demonstrated how it ensured the information it gave Miss D about its out of hours service was accessible for her in view of her learning difficulties. It has also not been able to provide any document to show what information it gave her about the extent of the service. The failure to provide adequate information in an accessible format was fault.
  2. The care provider accepts Miss D was not registered with the out of hours service when the police called and says this was rectified the following day.
  3. These faults caused distress to Miss D as she was not able to access the out of hours service when she needed support.
  4. Once the Council became aware of the issue, it provided appropriate advice and information to the family.

Travelling alone

  1. On one day in mid August 2017, the carer who was due to support Miss D to attend the social club was not able to collect her and take her to it. The care provider had agreed with Miss D that she would travel on her own by bus and the carer would meet her at the club. Mrs X says this was inappropriate because
    Miss D had not been on a bus on her own at that point and would not have been able to make the 20 mile journey by herself safely. She also had no money for the bus fare. In the event, her parents took her to the club but they say the confusion over the travelling arrangements caused Miss D considerable distress. Care provider records show Miss D was very quiet during the evening and unable to engage with the social activities.
  2. The care provider said the carer explained to Miss D she could not collect her from home on that occasion. It says Miss D agreed with the support manager and her social worker that she would travel by herself to the club that evening. The care provider has not explained how it considered whether it was appropriate and safe for Miss D to travel alone. Council records show it was informed Miss D would be travelling alone and that Mr and Mrs X had been informed. There is no record that a social worker specifically agreed this. However, the Council says it was not concerned because Miss D had previously accessed the community independently.

Findings – travelling alone

  1. Miss D did not travel to the social club on her own so at no point was she unsafe. However, I am not satisfied the care provider properly considered whether it was safe for her to make that journey on her own. There is no evidence that it checked she was familiar with using the bus on her own, was familiar with the particular journey she needed to make or that she had money for the bus fare.
  2. The failure to properly consider this was fault. The fault caused distress and uncertainty for Miss D because she was not able to manage the journey on her own and was uncertain what to do about this.

Meeting with social worker

  1. Mrs X says Miss D met officer 1, who asked her about money she owed another client at the assisted block. Mrs X says Miss D was distressed by the suggestion she had done something wrong and went drinking after the meeting. Mrs X says Miss D got drunk and was vulnerable on her own.
  2. Council records show that around this time Miss D was suffering from low mood and panic attacks and subsequently her medication was adjusted. Miss D reported that when she was feeling low or panicky she would use alcohol. The records show when officer 1 asked Miss D about meeting men at the assisted block she denied this. In a discussion afterwards with Mrs X officer 1 explained that she saw Miss D was anxious so had not pursued the matter. The records also show Miss D was lying to officers and her parents to cover up the extent of her drinking around this time.

Finding – meeting with social worker

  1. The records show Miss D was suffering from low mood and panic attacks and she reported she was using alcohol at those times. Although the drinking did make her vulnerable and her parents were understandably concerned, there is no evidence to suggest the Council’s approach to supporting Miss D during this period was making the situation worse. The Council was not at fault.

Complaints handling

  1. Mrs X complained to the care provider, which responded in September 2017. She then complained to the Health Trust, which met with her to discuss her concerns in October 2017. The Health Trust responded to the complaint in May 2018. The Trust said it had referred Mrs X’s concerns about the care provider to the Council and it anticipated the allocated social worker would provide feedback in due course.
  2. The Council accepts it did know about the complaint at that point but does not have a record of providing a response to Mrs X and she has not received one.

Findings – complaints handling

  1. The support by the care provider was arranged by the Council so the Council was responsible for any failings in the support provided. There appears to have been some confusion in this case about who should respond to the complaint. It is clear the Council was aware of the concerns about the care provider and that Mr and Mrs X were not satisfied with the care provider’s complaint response. In these circumstances, the Council should have investigated Mr and Mrs X’s concerns and responded to them. The failure to do so was fault. The fault caused avoidable delay which added to Mrs X’s uncertainty and frustration.

Agreed action

  1. The Council will, within one month of the date of the final decision:
    • Apologise to Mrs X and to Miss D for the care provider’s failure to adequately explain the extent of the out of hours service and its initial failure to register Miss D with that service, the care provider’s failure to properly consider whether it was safe for Miss D to travel to the social club on her own in mid August 2017, and for its own failure to investigate and respond to Mr and Mrs X’s concerns when it was clear they were not satisfied with the care provider’s complaint response.
    • Pay Mrs X £200 for the benefit of Miss D to recognise the distress and uncertainty caused to Miss D by the Council’s faults and a further £150 for Mrs X’s time and trouble in pursuing the complaint.
  2. The Council will, within three months of the date of the final decision, review its complaints process to ensure it is clear that where there is a complaint about a care provider it has commissioned, or another operator acting on its behalf, the Council should investigate and respond to the complaint where the complainant is not satisfied with the care provider or operator’s response.

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Final decision

  1. I have completed my investigation. I have found fault leading to injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.
  2. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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Investigator's decision on behalf of the Ombudsman

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