Summary: Mr X complains that the Council placed his adult son, Mr M, in supported living accommodation without a Deprivation of Liberty Safeguard, which was far away from the family home, and there was a lack of care. He says this caused Mr M’s behaviour to escalate, caused him to gain weight, and led to him being detained under the Mental Health Act. Mr X says this caused him stress and inconvenience. The Ombudsman does not uphold Mr X’s complaint. This is because we have found no evidence of fault.

The complaint

1. Mr X complains on behalf of his adult son, Mr M. Mr X complains that the Council placed Mr M in an inappropriate placement. He says it was inappropriate because there was no Deprivation of Liberty Safeguard, it was far away from the family home, and there was a lack of care.
2. Mr X says this caused his son’s behaviour to escalate, his son became grossly overweight, and led to his son being detained under the Mental Health Act. He says these things put his son in danger. Mr X says this has caused him stress and inconvenience.

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What I have investigated

3. The Ombudsman cannot investigate complaints that are more than 12 months after the complainant first had knowledge of the problem, unless there are good reasons to do so (see paragraph ten).
4. In this case, Mr X is complaining about the Council’s actions relating to Mr M while Mr M was living in supported living accommodation between August 2016 and February 2017. Mr X complained to the Ombudsman in March 2019.
5. Mr M was detained under the Mental Health Act in mid-2017 for approximately 18 months. Mr X says he waited to complain to the Ombudsman until Mr M had been moved from the hospital where he had significant concerns for Mr M’s safety.
6. I find that between mid-2017 and March 2019 Mr X was clearly prioritising and focussing on advocating for Mr M, raising concerns about his ongoing treatment in hospital.
7. For this reason, I have decided there are good reasons to exercise the Ombudsman’s discretion and investigate this complaint.

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The Ombudsman’s role and powers

8. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
9. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
10. 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)
11. We may investigate a complaint on behalf of someone who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

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How I considered this complaint

12. Mr M has learning difficulties. Mr X has lasting power of attorney for Mr M. I therefore consider Mr X is an appropriate person to make this complaint on Mr M’s behalf.
13. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about the complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
14. I have considered the relevant legislation, set out below.

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What I found

Mental Capacity

15. 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.
16. A person must be presumed to have capacity to make a decision unless it is established that 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.
17. 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.
18. 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.

Deprivation of Liberty Safeguards

19. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation.
20. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful.
21. It is the responsibility of the care home or hospital to apply for authorisation. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection.
22. The Supreme Court decided on 19 March 2014, in the case of P v Cheshire West and Chester Council and another and P and Q v Surrey County Council, that deprivation of liberty occurs when “the person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
23. If there is a conflict about an (un)authorised deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection.

Court of Protection

24. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
25. The Court of Protection may need to become involved in difficult cases or cases where there are disagreements that cannot be resolved in any other way. The Court of Protection:
• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
• appoints deputies to make decisions for people lacking capacity to make those decisions;
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid; and,
• removes deputies or attorneys who fail to carry out their duties.

What happened

26. Mr X’s adult son, Mr M, has learning difficulties and autism. In 2014, Mr M moved from the family home into a residential care placement. In August 2016, Mr M moved into supported living accommodation.
27. This placement ended in February 2017 because Mr M had damaged his flat to the extent that it was not inhabitable. Shortly after this, Mr M moved back into residential care. Mr M was later detained under the Mental Health Act.
28. In September 2017, Mr X complained to the Council that Mr M’s placement in supported accommodation had been inappropriate.
29. The Council responded, saying its placements had been based on Mr M’s complex needs. It says it tried to find services near to the family home, but this was not always possible because it depended on availability. It noted that because Mr M was currently detained, and therefore under the NHS’s responsibility, Mr M’s case was closed to the Council.
30. In September 2018, Mr X complained to the Council. He said that while in residential care Mr M had a Deprivation of Liberty Safeguard (DoLS) which protected him from being neglected and not being correctly cared for. He said that when Mr M was moved to supported living accommodation, he did not have a DoLS.
31. Mr X said the Council had placed Mr M in an inappropriate setting where his mental and physical health deteriorated.
32. The Council responded. It said when it placed Mr M in supported living accommodation, it believed this was an appropriate placement for him based on knowledge of Mr M, his needs, the placement and the provider. It said the provider confirmed it could meet Mr M's needs.
33. The Council said Mr M had a DoLS when he was in residential care, but this ended when he moved into the community. It said it believed Mr M’s new care arrangements would be delivered without depriving him of his liberty. The Council said it did not believe the supported living accommodation was an inappropriate placement. It said it had tried to meet his care needs to ensure his safety and promote his wellbeing.
34. Mr X asked that his complaint be dealt with at stage two of the complaints procedure. He wanted the Council to review its decision to see if better decisions could have been made, due to Mr M’s needs and challenging behaviour.
35. The Council sent Mr X its stage two response in November. It said Mr M had wanted to move into supported accommodation close to the family home, but nothing had been available at the time.
36. The Council said it thought that a move from residential care to supported accommodation would better meet Mr M’s needs. It noted that this supported accommodation provider provided services to some of the Council’s most complex and challenging individuals. It said that despite settling in well, by February 2017 Mr M had damaged his home to such an extent that he could no longer live there.
37. Mr X then complained to the Ombudsman.

Analysis

Deprivation of Liberty Safeguard

38. Mr X complains that the placement in supported living accommodation was inappropriate because there was no Deprivation of Liberty Safeguard.
39. As I have said in paragraph 22, the courts have decided that deprivation of liberty occurs when “the person is under continuous supervision and control and is not free to leave”. When Mr M was placed in residential care, he was under continuous supervision. This is why he had a Deprivation of Liberty Safeguard (DoLS). This was appropriate.
40. However, when Mr M was placed in supported living accommodation, he was no longer under continuous supervision. For this reason, the test for whether or not Mr M needed a DoLS was not met.
41. Further to this, the Council says Mr M had capacity to understand this residency, so it did not apply to the Court of Protection for a DoLS.
42. For these reasons, I do not find fault with the Council.
43. Mr X says Mr M should have had a DoLS because of his eating habits, his hygiene, and his behaviour.
44. DoLS are about limiting people’s ability to freely come and go as they please, usually for their own safety. Care plans address nutrition and personal care.
45. In this case, the provider was aware of Mr M’s history of challenging behaviour and told the Council it felt able to provide Mr M with the care he needed. It is my view that a DoLS was not necessarily needed to manage Mr M’s behaviour.
46. Mr M’s care plan refers to his nutrition and personal care. It does not indicate that Mr M lacked capacity to make these decisions. It refers to his need for support and prompting to maintain a healthy diet and good personal care.
47. I find that the Council used the care plan appropriately to address the areas of Mr M’s needs that relate to nutrition and personal care.
48. For these reasons, I do not find fault with the Council.

Lack of care

49. Mr X complains that Mr M had too much freedom while living in supported accommodation. He says Mr M’s personal care suffered, shown by the fact that Mr M did not trim his hair or beard.
50. As I have said above, the care plan refers to Mr M’s personal care needs. It says that Mr M required prompting to maintain these needs, but he has the ability the independently meet these needs with supervision.
51. I find that the Council considered Mr M’s personal care needs and how they were to be met. It considered all factors involved in Mr M’s case before deciding to place Mr M in supported accommodation.
52. For these reasons, I do not find fault with the Council.

Distance from the family home

53. Mr X complains that the supported living accommodation was too far from the family home (an hour and a quarter away).
54. The Council’s complaint responses (paragraph 29 and 35) say that it tried to find a suitable placement close to home but there were none available.
55. Given Mr M’s complex needs and history of challenging behaviour, I do not find fault with the Council. It is my view that the Council placed Mr M as close to the family home as possible, while prioritising the need for the most appropriate supported living setting for Mr M.
56. It is unfortunate that a closer and equally suitable placement was not available, but this is not evidence of fault.
57. For this reason, I do not find the Council at fault.

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Final decision

58. I have completed my investigation and I do not uphold Mr X’s complaint. This is because I have found no evidence of fault.

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Investigator's decision on behalf of the Ombudsman