Summary: Mr Y complained the Council failed to meet his brother Mr X’s needs due to the inadequacy of his current supported living accommodation and it failed to deal with the disruptive behaviour of another tenant. Any concerns Mr Y has about the current accommodation are matters for the housing association and are outside the Ombudsman’s jurisdiction. The Council is not at fault for the way it is meeting Mr X’s needs. It has taken action to address the concerns about the other tenant’s behaviour and is not at fault. It is at fault for failing to review Mr X’s care plan. It has agreed to do so now.

The complaint

1. Mr Y complains the Council is failing to meet his brother Mr X’s needs as the current supported living accommodation is inadequate. In addition, the Council is failing to deal with the disruptive behaviour of another tenant which is affecting his brother’s well-being and putting him at risk.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended) The Housing Ombudsman deals with complaints about councils as registered social landlords.
5. 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

6. I have considered the information supplied by Mr Y in writing and on the phone.
7. I have considered the Council’s response to my enquiries and the relevant law and guidance.
8. I gave Mr Y and the Council the opportunity to comment on a draft of this decision. I considered their comments in reaching my final decision.

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What I found

9. Councils must carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. If a council decides a person has eligible needs, it must set out how it will meet those needs in a care and support plan.
10. Councils must take into consideration a person’s preferences. However, recent case law (R (Davey) v Oxfordshire County Council) found while a claimant’s preferences had to be taken into account, these had to be distinguished from their needs for care. The court of appeal found the Council’s duty is not to achieve the outcomes which the individual wishes to achieve but to assess whether the provision of care and support would contribute to those outcomes. The wishes of the individual maybe a primary influence but they do not amount to an overriding consideration.
11. The Care and Support Statutory Guidance sets out that keeping plans under review is an essential element of the planning process. In the absence of any request of a review, or any indication that circumstances may have changed, the authority should conduct a periodic review of plan. It is the expectation that authorities should conduct a review of the plan no later than every 12 months.
12. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)

What happened

13. Mr X has learning difficulties. Since 2011, Mr X has lived at the same address. In 2016 the property was de-registered as a care home and became supported living, managed by a housing association. At the time the care home was de-registered, the Council assessed Mr X did not have capacity to decide where he lived. It made a best interests’ decision for him to remain at the property.
14. The Council last completed a needs assessment for Mr X in July 2017. This noted Mr X appeared settled and happy. It noted he was relaxed in his home, he had good routines and a staff team who knew him well. It noted Mr X needed support in a number of areas including with personal care and his health needs. It noted Mr X also required full support with bathing. He liked a bath and bathed every morning. Mr X’s support plan set out he had staff support 24 hours a day with some one-to-one hours for personal care and activities and some shared hours of support.
15. Mr X’s room at the property is small. It is not big enough for an easy chair. In 2016 Mr Y approached the Housing Association about extending the property to enable Mr X to have a bigger room. Mr Y put forward a proposal to the housing association which it declined.
16. In 2018, the Housing Association proposed altering the internal layout of the property to increase the size of Mr X’s room. This would involve replacing the bathroom with a wet room (without a bath). Mr Y did not support the proposal as it would remove the bath which Mr X particularly enjoys. Mr Y told the landlord Mr X would not move out to allow the alterations. The landlord decided it could therefore not carry out the alterations.
17. In July 2019 Mr Y complained to the Council about the size of Mr X’s room. The Council responded that it could only consider the social care element of the complaint. It noted a best interests meeting was held when the care home was de-registered and all present agreed it was in Mr X’s best interests to remain at the property.
18. It acknowledged the size of the room caused issues. It said the housing association had made a proposal which Mr Y had declined to accept and so was unable to uphold the complaint from a social care perspective. Mr Y remained unhappy. He set out his views on the housing association’s proposal and he raised concerns that the behaviour of one of the residents, Mr Z, had deteriorated over the last year. The resident had violent outbursts and had damaged furniture. Mr Y was concerned about the impact on Mr X.
19. Mr Y complained to the Housing Ombudsman about the landlord’s proposal to extend Mr X’s bedroom and change the bathroom to a wet room. He proposed an external extension which would mean the bathroom would not be altered. The Housing Ombudsman investigated Mr Y’s complaint. It wrote to Mr Y with its decision in December 2019. It found no fault with the landlord’s proposal.
20. Mr Y wrote to the Council in January 2020 following an incident when he had visited Mr X. During the visit, Mr Z was throwing dining chairs around and was becoming increasing difficult for the carers to control. Mr Y took his brother into the communal lounge. Mr Y was concerned such incidents had increased, placing other residents at risk and causing difficulties for the carers.
21. The Council registered a safeguarding alert relating to the concern about the impact of Mr Z’s behaviour on Mr X. It carried out some initial enquiries. It noted Mr X had not been harmed, staff were monitoring the situation and moved Mr X to another room if an incident occurred. It closed the safeguarding as matters were being dealt with through case management. The records show the care provider had a risk assessment in place regarding keeping Mr X safe. This noted staff were trained in MAPA (management of actual and potential aggression) and staff would reassure Mr X and would support him to move to a place of safety away from any potential threat of danger.
22. The Council wrote to Mr Y. It set out there was a plan in place to move Mr X to an area of safety when incidents arose. The Council also advised there was a plan for alternative support for Mr Z which was being proactively progressed. In response to my enquiries, the Council says it offered the care provider additional hours of support if required but this was declined by the care provider. It also confirmed it had found an alternative placement for Mr Z which he moved to in June 2020.

Findings

23. Mr Y agrees it is in Mr X’s best interests to stay at his current accommodation but is concerned that Mr X’s room is too small.
24. I cannot investigate any concerns Mr Y has about the size of Mr X’s room, the proposed adaptations to the property considered by the housing association or the affordability of those options. The housing ombudsman has already looked at these issues and reached a decision. It is for the housing association, not the Council, to decide whether or not to extend the property and how best this is done. I have no jurisdiction to investigate the housing association.
25. Mr Y has concerns about the housing association’s proposal to replace the bath at the property with a wet room. Mr X’s needs assessment sets out Mr X’s need for support with personal care and bathing. It sets out Mr X’s preference for a bath rather than a shower. However, that is a preference not a need. A decision to replace the bath with a shower is for the housing association not the Council. As Mr X has no eligible need for a bath, I would not expect the Council to interfere with the housing association’s proposal. The Council is not at fault.
26. The Council noted Mr Y’s concerns about the behaviour of another tenant. It has taken action to address the concerns and Mr Z has moved to alternative accommodation. There is no evidence Mr X was caused any harm by the resident’s actions. The Council was not at fault.
27. The Council provided me with a copy of Mr X’s latest needs assessment and support plan. These are dated from 2017. The Care and Support Statutory Guidance sets out that these should be reviewed yearly. There is no evidence the Council has carried out a review since then and this is fault. Mr X has continued to receive support and there is no evidence the care provider has suggested he needs more hours of support. Mr Y has not raised any concerns about the amount of support provided to Mr X. However, the lack of a review leaves Mr Y with a sense of uncertainty.

Agreed action

28. Within three months of the final decision on this complaint the Council has agreed to review Mr X’s needs assessment and support plan.

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Final decision

29. I have completed my investigation. There is evidence of fault by the Council leading to injustice which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman