Summary: There was fault by the Council. A letter contained inaccurate information about the education provision in Mr Y’s Education, Health and Care Plan. The Council will apologise for the avoidable confusion to his mother, Mrs X.

The complaint

1. Mrs X complained for her son Mr Y that Wirral Metropolitan Borough Council (the Council):
1. Did not properly complete an assessment of Mr Y’s capacity to make decisions about his education, care and accommodation.
2. Failed to apply to the Court of Protection.
3. Did not increase Mr Y’s overnight stays at his residential school having agreed to do so.
2. Mrs X said the Council’s failings caused her avoidable distress and a financial loss because she had to pay for a private communication report.

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The Ombudsman’s role and powers

3. 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)
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these bodies. (Local Government Act 1974, section 25(7), as amended)
5. The Council has a legal agreement with Cheshire and Wirral Partnership Trust (the Trust) to carry out the Council’s adult social care functions. Adult social care functions include carrying out social care assessments.
6. 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

7. I considered:
• Mrs X’s complaint to the Ombudsman and supporting documents
• The Council’s response to the complaint
• Documents described later in this statement
• Comments from the Council and Mrs X on a first draft of this statement.
8. I discussed the complaint with Mrs X.
9. Mrs X and the Council had an opportunity to comment on my draft decisions. I considered any comments received before making a final decision.

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What I found

Relevant law, policy and guidance

10. The Mental Capacity Act and Code of Practice to the Act set out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity to make a particular decision is in doubt. (Code of Practice, paragraph 4.34)
11. A person lacks mental capacity to make a decision if they have a temporary or permanent impairment or disturbance of the brain or mind and they cannot make a specific decision because they are unable:
• To understand and retain relevant information or
• Weight that information as part of the decision-making process or
• Communicate the decision (whether by talking using sign language or other means.) (Mental Capacity Act, section 3)
12. Five key principles underpin the Mental Capacity Act. They include the second principle which says a person must be given all practicable help before anyone treats them as unable to make a decision. The fourth principle says that where a person does not have capacity, a decision on their behalf must be made in their best interests. (Mental Capacity Act, section 1)
13. If there is a dispute between family members and a council about what is in a person’s best interests, either party may apply to the Court of Protection for a determination. The Court of Protection can make decisions, hearing evidence from both sides, about where the person should live, what care they should receive and contact arrangements.
14. The Deprivation of Liberty Safeguards (DOLS) framework protects people who lack capacity to consent to being deprived of their liberty in a care home or hospital and who are not detained under the Mental Health Act 1983. People are instead detained by a ‘standard authorisation.’ The care home or hospital applies to the supervisory body (a team in the local authority) which carries out an assessment to decide whether to approve the authorisation. If a person is not living in a care home or hospital, lacks capacity to consent to their care arrangements and is being deprived of their liberty, then the Court of Protection can be approached to make an order. The judge in one leading case about a learning-disabled man placed in a unit away from his family was critical of a council’s failure to make a prompt application to the Court of Protection when there had been a long running dispute between professionals and his family. (Neary v LB Hillingdon)
15. A child or young person with special educational needs may have an Education, Health and Care (EHC) plan. This sets out the child’s or young person’s needs and what arrangements should be made to meet them. The EHC plan is set out in sections. We cannot direct changes to the sections about education, or name a different school. Only the tribunal can do this.

16. The Council is responsible for making sure arrangements specified in the EHC plan are put in place. We can look at complaints about this, such as where support set out in the EHC plan has not been provided, or where there have been delays in the process.
17. A council must carry out an assessment for any adult who appears to need care and support (a social care assessment). The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9)

What happened

Background

18. Mr Y is a young person with autism. He has an EHC plan.
19. This complaint is about what happened in 2018 and 2019 during Mr Y’s final two years in a residential special school. Mr Y stayed at the school one night a week and was a day pupil for the other nights, living at home with Mrs X. Mr Y is currently at a different education provision.

Key events

20. The Trust completed a social care assessment in October 2018. The assessment form said Mr Y was being deprived of his liberty and this was without authorisation. It gave no further details about whether any action was being taken to address the deprivation of Mr Y’s liberty. The assessment noted Mr Y’s mother wanted him to attend a residential college as his next placement, to enable him to learn independent living skills and that he was likely to refuse such a placement and so it would be necessary to establish his mental capacity to do so.
21. The Council provided me with a copy of a mental capacity assessment for Mr Y. There are two dates on it: February 2020 and November 2018, but it originates in 2018 as the text refers to visits by Mr Y’s social worker on two dates in November 2018. The reason for the capacity assessment was decisions needed to be made about Mr Y’s long-term education and social care needs after he finished school. The decision was ‘there was reasonable doubt he was unable to make informed decisions in relation to his education and accommodation’. The Council told me a member of staff from Mr Y’s school who knew him well was present and supported Mr Y during the assessment and at the later capacity assessment (see paragraph 29)
22. A best interests’ assessment followed the mental capacity assessment. The assessor concluded supported living was in Mr Y’s best interests, but Mrs X preferred a different option, so the Court of Protection’s involvement would be needed. The papers show Mrs X and Mr Y were consulted about their views.
23. There was a review of Mr Y’s EHC plan in November 2018. Mr Y said he wanted to stay two nights a week at school. The school said he would benefit from a second night.
24. Mrs X emailed the Trust in November saying Mr Y’s social worker told her the Council had decided to stop funding overnight stays at school and she objected to this. Hearing nothing back, she made a formal complaint. She said she wanted the decision changed and for two nights a week to be put in place. Internal emails between senior staff of the Trust and Council indicated:
• a manager agreed to fund a second night at school temporarily until a transition package was agreed for Y.
• the Council would prefer to meet Mr Y’s needs by providing services in the area, but Mrs X wanted an expensive out of area placement (for Mr Y’s next placement, after he finished school)
• Mr Y’s needs could be met in a variety of settings, so the advantages and disadvantages of each needed to be considered in a best interests’ meeting before the deadline for his EHC plan so the most appropriate setting could be named in the plan.
25. Although the manager approved temporary funding for a second night at school, a different manager responded to Mrs X’s complaint in December refusing to increase Mr Y’s overnight stays. The letter said there was no evidence Mr Y needed a waking day curriculum, no educational need for a second stay and the school did not support this. The letter went on to say

“Mr Y lacks the necessary capacity to consent to overnight accommodation at school and any consequential deprivation of liberty….. adult social care have completed a community care assessment, … as Mr Y lacks capacity to make decisions regarding accommodation, care and education, every decision made regarding his transition planning needs to be made in accordance with the Mental Capacity Act and be in his best interests”

26. The school confirmed in an email to Mrs X in January 2019 that it had no places to offer Mr Y a second night. Mrs X said she was aware there was no room for Mr Y to increase his nights.
27. There was a further social care assessment in January 2019 which said almost the same as the October 2018 one described in paragraph 20.
28. Professionals from the Trust, Council and Mr Y’s school met with Mrs X and Mr Y’s advocate in February 2019 to discuss future plans for Mr Y when he finished school. Mrs X said she was unhappy the overnight stays had been removed from the [draft] EHC plan and the EHC plan manager agreed the stay would be put back in the plan. The minutes of the meeting noted the EHC plan manager ‘recognised overnight provision is an educational need.’ The plan recommended a further year at school with a transition to a different setting in 2020. The minutes of the meeting also noted:
• There was no space at the school for any additional nights unless another student left. The school would not be able to say if there would be space for additional nights for the next school year until July
• The Council was willing to look into a package of supported living for Mr Y as an alternative to more nights, but Mr Y did not want this.
29. Mrs X provided me with a copy of a second mental capacity assessment completed by a social worker in February 2019. Mr Y’s social worker completed the assessment at school. The social worker’s note of the visit showed Mr Y, Mrs X, a member of staff from school and Mr Y’s speech and language therapist were present. There was a second meeting a couple of weeks later to complete the capacity assessment. This took place at Mr Y’s home with Mrs X also present. The conclusion was Mr Y lacked capacity to decide on a residential college or on living away from home but close by/locally (that is, in supported living). The social worker noted Mr Y did not understand information relevant to the decision and she felt this was largely due to his lack of knowledge about one of the options – supported living. The social worker said in an email to Mrs X that she felt Mr Y’s capacity in this area could change with some education around supported living.
30. In March 2019, Mr Y’s advocate noted he told her he was dead set against supported living but was willing to give a residential college a go.
31. Mr Y’s final amended EHC plan in March 2019 said in section F that he will ‘require a 24-hour curriculum within his college learning environment.’ The placement named was Mr Y’s special school. (A 24-hour curriculum or waking day curriculum generally means that a council funds SEN provision to include learning which extends beyond the school day; learning skills in the evening)
32. Mrs X instructed a solicitor who sent the Trust a letter before action in April 2019 asking the Council to implement all the provision in Mr Y’s EHC plan. An internal email from the SEN manager to other senior staff said ‘I think the care and accommodation decision for Mr Y should be made in accordance with the Mental Capacity Act and his education needs should dovetail into whichever placement is identified by the operation of the Mental Capacity Act… there was to be a Best Interest meeting to explore the options… this decision making needs to take place before any further action.’
33. A best interests’ meeting was due to take in place in May 2019 but did not. An email from a Trust manager indicates the meeting was cancelled because Mrs X raised concerns that Mr Y was not given chance to maximise his mental capacity during the mental capacity assessment. And that a fresh social care assessment was needed due to inaccuracies in the previous one.
34. Mrs X’s solicitor sent a second letter before action at the end of June and the Council noted in response that a best interests’ meeting was still outstanding.
35. Mrs X paid for a private specialist speech and language therapist to interview Mr Y and prepare a communication report setting out his thoughts and feelings about school, overnight stays and future attendance at college.
36. Mrs X issued proceedings in the Special Educational Needs and Disability Tribunal. In August 2019, the Tribunal ordered the Trust to set out its position on Mr Y’s mental capacity to make decisions about his education. The Trust confirmed it had seen the speech and language therapist’s report and had no reason to question Mr Y’s mental capacity to decide on his education.
37. The minutes of the review of Mr Y’s EHC plan in November 2019 indicate he had been getting a 24-hour curriculum. Mrs X told me the Council offered Mr Y three nights from May 2019.
38. Mrs X complained to the Council, raising the issues in her complaint to us as well as other issues. Unhappy with the response, Mrs X escalated her complaint. The Council’s complaint response in February 2020 referred Ms X to the Ombudsman without addressing her complaints at the second stage of its procedure. The reason for this was because she had raised concerns about the complaint manager and their senior and so the Council did not think she would be happy with any complaint investigation it completed.
39. The Council told me it would:
• Repay the cost of the speech and language therapist’s report
• Apologise for the distress caused by the EHCP process.
40. The Council also told me it wondered whether Mr Y’s social care assessment had a typographical error because officers never considered there were DOLS issues with the overnight stays at school and the social worker possibly clicked the wrong option on the assessment form because there was no further discussion about DOLS at the time.

Was there fault and if so did this cause injustice?

41. The Trust acts for the Council in carrying out functions under the Mental Capacity Act and Care Act. Any fault by the Trust was fault by the Council.

Complaint (a): Failure to properly complete a mental capacity assessment to make decisions about Mr Y’s education, care and accommodation.

42. The Trust completed two mental capacity assessments, both concluded Mr Y lacked capacity to make decisions about his care and accommodation.
43. There was no fault in the assessments of Mr Y’s mental capacity which were in line with the principles in the Mental Capacity Act described in paragraphs 11 and 12. The capacity assessments involved Mr Y who had support from his mother, a speech and language therapist and a member of school staff who could help him with communication. That the Trust later conceded in the tribunal that Mr Y had capacity to make decisions about his placement did not mean that the earlier assessments were flawed. Capacity can change over time and the records indicate the social worker who completed the second capacity assessment held the view that Mr Y may be able to gain capacity in the future.

Complaint (b): Failure to apply to the Court of Protection.

44. Officers suggested in correspondence and in the case records that Mr Y might be being deprived of his liberty and an application to court may be needed because of a dispute with Mrs X about future provision. The issue fell away when the Trust accepted in 2019 that Mr Y did in fact have mental capacity to make decisions about his education and accommodation.
45. The Council told me there may have been an error on some of the paperwork about whether the placement overnight at school was a deprivation of Mr Y’s liberty. Mistakes do happen and we do not regard typos to be fault in most cases. However, in this case there was fault because this wasn’t an isolated typo. Officers suggested on several occasions, including in a letter to Mrs X that there may be a deprivation of liberty. Yet, no further action was taken to consider this. It was fault not to properly consider and decide whether Mr Y was being deprived of his liberty during overnight stays at school and if so, what, if any, action needed to be taken. There is no indication this caused injustice.

Complaint (c): Did not increase Mr Y’s overnight stays at his residential school having agreed to do so.

46. The records indicate a senior manager agreed to additional funding for a second night in November 2018, but this was not put in place. There was confusion internally about what had been agreed which is reflected in internal emails between senior officers.
47. The Council’s complaint response (paragraph 25) said Mr Y’s overnight stays were not an educational need, but this contradicted what the SEN manager said in the transition meeting in February 2019 and in Mr Y’s EHC plan of March 2019. The plan said Mr Y required a 24-hour curriculum. This meant overnight provision was educational provision for Mr Y. The complaint response contained incorrect information which was fault, causing Mrs X avoidable confusion.
48. The Council did not put in place the provision set out in the EHC plan of March 2019. In most cases this would be fault, but in Mr Y’s case everyone knew before the plan was finalised that further overnight stays at the school were not an option for the current academic year. The Council offered an alternative option which Mrs X and Mr Y did not feel would work for them, which I respect. This does not mean there was fault in offering an alternative as clearly the Council could not provide something that was not available. The key point is the parties were all aware of the situation when the final plan was issued, it was a time limited situation and alternative arrangements were offered to bridge the gap.

Agreed action

49. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the Trust, my recommendations are for the Council.
50. The Council will, within one month of my final statement, apologise for the confusion caused by inaccurate information in correspondence.
51. The Council repaid Mrs X the cost of the speech and language therapy report. I did not recommend this action because I decided there was no fault in the process of considering Mr Y’s mental capacity around decision-making about placements, but it is action the Council took in any event.

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Final decision

52. There was fault by the Council. A letter contained inaccurate information about the education provision in Mr Y’s education, health and care plan. The Council will apologise for the confusion to Mr Y’s mother, Mrs X.
53. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman