Summary: We did not uphold Ms X’s complaint about her son Mr Y’s care and support at a supported living placement. There was fault in the Council’s complaint handling. The Council will apologise for the avoidable time and trouble to Ms X.

The complaint

1. Ms X complained for her son Mr Y about a supported living placement arranged and funded by Cambridgeshire County Council (the Council). Guyatt House Care (GHC) provided Mr Y’s care. Ms X complained about:
1. Inaccuracies in care plans (incorrect information about diagnoses) and care plans which failed to address Mr Y’s behaviour leading to serious incidents
2. A failure to liaise with the NHS to seek appropriate treatment for Mr Y’s mental health needs
3. A failure to involve her and communicate with her and a refusal to share information
4. Inappropriate sharing of information with the police
5. Mismanagement of Mr Y’s medication
6. Inadequate support hours and a lack of clarity about the support hours that were agreed
7. Being late for psychotherapy sessions
8. Billing Mr Y for household expenses after he had left the placement
9. Inadequate care and support after the placement broke down
10. Refusal to respond to her complaint.
11. A conflict of interest between the care provider and council.
12. The lack of provision of health services to support Mr Y’s mental health needs
13. The failure to fund education transport costs.
2. Ms X said the failings in Mr Y’s care caused the family and Mr Y avoidable distress and led to Mr X having a criminal record because of a failure to provide appropriate support around his mental health needs.

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What I have investigated

3. I investigated complaints (a) to (j). My reasons for not investigating complaints (k) to (m) are at the end of this statement.

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The Ombudsman’s role and powers

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 providers. (Local Government Act 1974, section 25(7), as amended)
5. The Council has a duty under the Care Act 2014 to provide care and support to meet Mr Y’s eligible unmet needs. It did so by arranging and funding GHC to provide care and support. So we have power to investigate GHC.
6. 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)
7. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating
• we could not add to any previous investigation by the organization.

(Local Government Act 1974, section 24A(6))

8. 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 or care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
9. A legal case said that we should not enforce time bars rigidly against a complainant where justice requires the time to be extended and the complaint heard (R v Commissioner for Local Administration in England b Bradford MBC (1979) QB287)
10. Although some of the events in this complaint happened over 12 months before Ms X complained to us, I have exercised discretion to investigate them because:
• Most of the events happened within the preceding 13-18 months of Ms X’s complaint and form part of a chain of events
• The records are available
• The injustice is potentially serious if I uphold them.
11. 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

12. I considered Ms X’s complaint to us, the Council’s response to her complaint, comments from the Council and GHC and case records set out later in this statement. I discussed the complaint with Ms X.
13. Ms X and the Council 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

Relevant law, policy and guidance

14. Children and young people up to the age of 25 with special educational needs may have an Education, Health and Care (EHC) plan. Councils are the lead agency for carrying out assessments for EHC plans and have the statutory duty to ensure special educational provision in an EHC plan is made available. (Children and Families Act 2014, Section 42)
15. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, section 9)
16. The Care Act spells out the duty to meet eligible needs (needs which meet the eligibility criteria). (Care Act 2014, section 18)
17. If a council decides a person is eligible for care, it should prepare a care and support plan which specifies the needs identified in the assessment, says whether and to what extent the needs meet the eligibility criteria and specifies the needs the council is going to meet and how this will be done. The council should give a copy of the care and support plan to the person. (Care Act 2014, sections 24 and 25)
18. Statutory Guidance explains a council should review a care and support plan at least every year, on request or in response to a change in circumstances. The purpose of a review is to see how a care and support plan has been working and to decide if any revisions need to be made to it. The council should act promptly after receiving a request for a review. (Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
19. A council should revise a care and support plan where circumstances have changed in a way that affects the plan. (Care Act 2014, sections 27(4) and (5))
20. In specific cases, a council and partner bodies, including the NHS must co-operate with each other in performing their functions relating to care and support and carers, unless this is incompatible with their own duties or has an adverse effect on their functions. (Care Act 2014, section 7 and CSSG paragraph 15.26)
21. A council must carry out a carer’s assessment where it appears a carer may have needs for support. The assessment must include an assessment of the carer’s ability and willingness to continue in the caring role, the outcomes the carer wishes to achieve in daily life and whether support could contribute to achieving those outcomes (Care Act 2014, section 10)
22. The Mental Capacity Act and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity to make a particular decision. An assessment of a person’s mental capacity is required where their capacity is in doubt (Code of Practice paragraph 4.34)

23. Care and Treatment reviews (CTRs) were developed by the NHS in 2017 to improve the care of people with learning disabilities or autism or both with the aim of reducing long hospital stays and/or health inequalities. A CTR focuses on four areas: safety, current care, future care and where appropriate, whether the person needs to remain in hospital. It identifies gaps in care. The CTR will make recommendations for the person’s care after the review.
24. The Information Commissioner produced guidance for organisations about sharing personal data with the police. (Sharing Personal Data with Law Enforcement Authorities). It says Paragraph 10 of Schedule 1 to the Data Protection Act 2018 allows an organisation to share personal data with bodies carrying out law enforcement functions where it is necessary for the prevention or detection of unlawful acts and where asking for consent would prejudice that purpose

Key facts

25. Mr Y was 18 at the time of the complaint. He has autism, attention deficit hyperactivity disorder (ADHD) and obsessive compulsive disorder (OCD). Mr Y has an EHC plan. The Council funded a placement at a specialist residential school which came to an end in Summer 2019. The Council reviewed and amended Mr Y’s EHC plan and continued to fund his education at a specialist performing arts project after he turned 18.
26. While an educational psychologist described Mr Y as having a learning disability and this was noted in his EHC plan, a psychologist from the Council’s adult learning disability team was of the view that he did not have a learning disability. Emails between professionals in the learning disability team suggested there may be a difference in how adults and children services defined learning disabilities.
27. A social worker from the Council’s adult social care team carried out an assessment of Mr Y’s social care needs at the start of 2019 to prepare for his transition from children to adult social care services when he became 18. The outcome was Mr Y was eligible for social care support. The assessment noted risks with Mr Y associated with accessing the community, displaying inappropriate sexual behaviour, internet use and challenging behaviour.
28. The plan for Mr Y’s future care and support was to find a suitable care provider who could deliver a bespoke supported living project for Mr Y.
29. In April 2019, the social worker referred Mr Y to several care providers including GHC, by sharing a pen portrait and Mr Y’s social care assessment. GHC and one other provider were shortlisted as potentially suitable care providers for Mr Y.
30. In June, the social worker completed a checklist for continuing healthcare (CHC) funding. CHC funding is for social and healthcare needs and is provided by the NHS subject to a person meeting specific criteria. If applicants score positively on a checklist, they need to undergo a full CHC assessment (called a Decision Support Tool.) Mr Y did not meet the checklist criteria for a full assessment for CHC funding and so the application did not proceed.
31. Mr Y’s case records show social workers and other staff from the adult social care team liaised with professionals in NHS Children and Adolescent Mental Health Service (CAMHS). CAMHS was preparing to end involvement with Mr X when he became 18. Mr Y’s CAMHS worker referred him to the NHS adult ADHD service in July. That service would be responsible for reviewing Mr Y’s medication and this would be just a yearly review with no therapy or regular monitoring.
32. In August, Mr Y’s social worker completed an assessment of his mental capacity to consent to supervision and control at home and in the community. The outcome was that he had mental capacity to consent to restrictions in his care plan but needed some support to weigh up pros and cons.
33. The Council commissioned a supported living placement for Mr Y with GHC. The Council told me it chose GHC because of its track record of providing supported living in Cambridgeshire and because the house proposed for Mr Y was close to his family home and convenient for him to get to his arts project on public transport and these issues were important to him. Mr Y moved into the placement in November 2019. The case records indicate staff at GHC spoke to Ms X frequently about his care and Mr Y visited the family home very regularly, with support from staff at GHC.
34. Senior staff of GHC wrote care plans which described Mr Y’s needs and how to meet them. Ms X saw copies of these care plans and her comments were included. The care plans set out his likes and dislikes, his weekly routine and activities, summarised his needs and described the support he needed.
35. GHC’s care plan for Mr Y noted a history of incidents where there was overly sexualised behaviour and aggression because of his autism. Male support workers were preferable. He needed one-to-one support in the community. The plan identified situations which may trigger aggression. The care plan noted:
• He needed reminders around time to get up and go to bed and prompts with personal care
• Strategies staff could use to help him calm down
• He was seeing a therapist (which Ms X paid for) for support around behaviour and emotions
• GHC staff would be monitoring Mr X’s behaviour
• He needed support at all times outside the home. He needed to sit in the back of a car on the passenger side and could use the bus with support. He might be eager to get somewhere quickly and may leave the home without support.
36. In November there was an exchange of emails between staff at GHC and Ms X following a meeting. A senior manager from GHC said they would be the named contact on utility bills and GHC would invoice Mr Y for his share of each bill. The email went on to say Ms X had agreed to do food shopping and meal planning until Mr Y was settled and Ms X would do a food shop on-line. Finally, Ms X would oversee Mr Y’s money, he would pay for activities and meals out with staff and Ms X would give staff a weekly amount for activities and staff would give her receipts each month.
37. GHC kept daily records and incident reports of notable incidents involving Mr Y. These included:
• Occasions where Mr Y was away from the home with a support worker and absconded and two incidents where he managed to get into the home of someone he knew and behaved in a sexually inappropriate manner
• An occasion when Mr Y absconded while in the care of a relative but returned and came to no harm
• Occasions where Mr Y made unwanted and inappropriate phone calls
• Inappropriate behaviour during a phone call with a male relative
• An incident where Mr Y struck a support worker and was restrained. This incident led staff to contact the police and Ms X who came and took him to her home. It led to an unplanned end of the placement with GHC as Mr Y refused to return.
38. In November, Mr X’s social worker attended a Care and Treatment Review (CTR) arranged and chaired by the local Clinical Commissioning Group. The CTR panel had the following concerns about Mr Y’s care:
• He did not have enough hours of one-to-one support and the social worker needed to review this urgently with a view to an increase to enable Mr Y to take part in more social activities
• He needed a Positive Behaviour Support Plan, a medication protocol for the use of sedative medicine and a sensory integration assessment
• There was a gap in NHS services for Mr Y. The adult mental health team refused to accept Mr Y because he had autism and yet he had mental health needs which were not fully met and the only input around mental health was a yearly medication review
• The family felt GHC staff needed further autism training.
39. The case records show GHC liaised with the social worker to suggest changes to Mr Y’s care due to concerns about his behaviour following each of the incidents summarised in paragraph 16. The social worker reviewed Mr Y’s care and support plan which resulted in increases to one-to-one support hours which could be used flexibly to support Mr Y in the day, evening and at weekends during term and holiday time. GHC also reviewed and amended its care plans after incidents.
40. GHC’s daily records indicate Mr Y’s father gave him over the counter medicine for a cold in the last week of November. They also indicate staff gave him another dose the following day. Nothing in Mr Y’s care plan suggested he could not have this medicine and there was no record Mr Y was unwell after taking it.
41. GHC’s daily records also indicate some days where despite staff reminders, Mr X did not want to get up. The records do not say anything about him being late to any appointments. Ms X told us that Mr Y was late on three occasions to therapy and so she decided to drive him to the appointment herself.
42. The Council’s case records show Mr Y’s social worker attended a handover meeting in December between the NHS CAMHS and the ADHD team. And in January 2020, the social worker liaised with adult forensic Mental Health Services as a result of the incidents in paragraph 16. Forensic specialists from the NHS assessed Mr Y and their assessments/reports were shared with adult social care.
43. At the end of January 2020 there was a review of Mr Y’s care. The police attended this meeting. Neither Ms X nor Mr Y knew the police were going to attend and so were unhappy. The meeting went ahead. The records indicate the police only stayed for part of the meeting to discuss reports relevant to potential criminal activity.
44. Ms X complained to the social worker in January saying there had been a reduction in Mr Y’s support hours. The Council responded in February. It said it had increased one to one hours from 33 to 67.6 in term time and from 49 to 77 hours in school holidays and that currently, support stopped at 8 pm based on Mr Y’s routine, but this was flexible and could be later. He had been supported to attend various social activities.
45. Mr Y remained at home with Ms X after the incident involving him striking a support worker and being restrained in February 2020. A social worker carried out a fresh social care assessment and reviewed the care and support plan and also carried out a carer’s assessment for Ms X. This resulted in a carer’s support plan and a funding for carers support. The Council offered to arrange support workers from GHC to provide outreach support, but Ms X and Mr Y did not want this. So the Council arranged for Ms X to have a direct payment with which she recruited a team of support workers to support Mr Y in the community. His education with the arts project continued.
46. In March 2020, a team manager discussed applying for NHS CHC funding again with Ms X who signed a consent form on Mr Y’s behalf to start the application process. The social worker completed a further checklist and submitted it to the Clinical Commissioning Group (CCG). Because of the pandemic, all applications for CHC were suspended and Mr Y’s application was not approved until January 2021. The CCG decided he was eligible for CHC funding and made arrangements to take over the commissioning/funding of Mr Y’s social and healthcare needs.
47. Ms X asked GHC for copies of some of Mr Y’s care records. GHC sought to charge £600 initially. After Ms X objected, the Council intervened and GHC provided the records at no cost.
48. In February 2021, Ms X complained again to the Council about the issues she has raised in her complaint to us and about other issues. Officers met with her to discuss the complaint. But the Council wrote to her in March saying it would not respond further because the events she was complaining about happened more than 12 months ago. Unhappy with the Council’s response, Ms X complained to us.
49. The Council told me:
• Mr Y’s social worker considered he had mental capacity to make decisions around his care and support
• He had mental capacity around finances but needed support around budgeting with the aim of taking on full responsibility for managing his finances
• It has discretion to accept complaints about events that happened more than 12 months ago. It was reasonable for Ms X to have pursued these at the time.

Findings

Complaint a: Care plans which failed to address Mr Y’s behaviour leading to serious incidents

50. I am satisfied with the care planning arrangements in place between the Council and GHC and so I do not uphold this complaint. The records show GHC’s plans included measures to minimise the risks Mr Y’s behaviour posed. Care plans cannot prevent risks, they can only seek to support a person’s behaviour to minimise the risks posed. The records show the social worker reviewed Mr Y’s care and support plan in response to concerns from GHC and the CTR panel regarding incidents and put in place extra one-to-one hours. This was in line with its duty under section 25 of the Care Act and Care and Support Statutory Guidance, Paragraphs 13.19-21 and 13.32)
51. I note the NHS CTR panel recommended additional mental health services for Mr Y but unfortunately these services did not exist in Cambridgeshire. My view is that specialist health services had a role in advising and supporting social care services to deliver Mr Y’s care, for example, in advising on positive behaviour support plans for Mr Y. But those services were not for the Council to commission and GHC could not deliver them without advice from the NHS as they were outside the scope of social care legislation.
52. In terms of the complaint about inaccuracies in Mr Y’s diagnoses: the records indicate there was a difference in view between professionals of different disciplines about whether or not Mr Y had a learning disability. It is not our role to question the merits of professional judgements as we have no expertise in this area of assessing and diagnosing a learning disability. A difference in a judgement of this type is not fault.

Complaint b: A failure to liaise with the NHS to seek appropriate treatment for Mr Y’s mental health needs.

53. I consider the Council and GHC liaised with different parts of the NHS to secure appropriate health provision for Mr Y including:
• Attending a CTR meeting
• Completing screening checklists for NHS CHC funding
• Attending handover meetings with Mr Y’s CAMHS worker
• Liaising with forensic clinicians.
54. The above actions mean the Council acted in line with Section 7 of the Care Act 2014 and paragraph 15.26 of Care and Support Statutory Guidance. So there was no fault.

Complaint c: A failure to involve Ms Y and communicate with her and a refusal to share information

55. The case records show regular phone and email contact between GHC staff and Ms X and between Mr Y’s social worker and Ms X. Ms X also had input into drawing up Mr Y’s care plans. Communication was appropriate and there was no fault.
56. GHC sought to charge £600 for copies of records. When the Council intervened and records were eventually provided at no cost. So I do not uphold this complaint.

Complaint d: Inappropriate sharing of information with the police

57. There was no fault by the Council because in sharing information with the police, it was acting in line with guidance from the Information Commissioner which sets out the circumstances in which sharing information without a person’s consent is allowed and this includes preventing and/or detecting crime. Some of the incidents described in paragraph 16 may have been crimes and so my view is there was no fault in sharing information.

Complaint e: Mismanagement of Mr Y’s medication

58. GHC’s records indicate Mr Y’s father gave him an over-the-counter remedy for a cold. There is nothing in the records to suggest Mr Y should not have had. So there was no fault in staff administering a further dose the following day.

Complaint f: Inadequate support hours and a lack of clarity about the support hours that were agreed

59. The Council increased Mr Y’s one-to-one support hours and set this out in the complaint response in February 2020. So there was no fault.

Complaint g: Being late for psychotherapy sessions

60. GHC’s records do not indicate lateness to sessions that was due to staff. Mr Y often needed several prompts in the morning to get up. There is no record of Ms X raising this in writing at the time. There is no evidence of fault.

Complaint h: Billing Mr Y for household expenses after he had left the placement

61. An email shows the agreement was for Mr Y to pay half the household bills. There was no fault in invoicing Mr Y after the event because the placement ended suddenly.

Complaint i: Inadequate care and support after the placement broke down

62. There was no fault by the Council because it:
• Carried out a carer’s assessment for Ms Y and drew up a carer’s support plan in line with section 10 of the Care Act 2014
• Carried out a fresh social care assessment for Mr Y, drew up a new care and support plan and agreed direct payment funding to pay for support workers after the family decided they would support Mr Y from the family home
• Offered outreach support with staff from GHC as a temporary measure. The family refused this for understandable reasons, but it was not intended as a permanent arrangement.

Complaint j: Refusal to respond to her complaint.

63. There was fault by the Council. I note the Council provided one response in February 2020, but this did not address all the issues Ms X complained about. I consider the Council did not apply the 12-month rule with enough flexibility and it failed to take into account the seriousness of the complaint, that aspects of the complaint were only just outside the 12-month rule and that there was evidence readily available to investigate and respond. This caused Ms X avoidable time and trouble in complaining to us.

Agreed action

64. The Council will apologise for the failure to respond to Ms X’s complaint within one month of my final decision.

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Final decision

65. We did not uphold Ms X’s complaint about her son Mr Y’s care and support at a supported living placement. There was fault in the Council’s complaint handling. The Council needs to apologise for the avoidable time and trouble to Ms X.
66. I have completed the investigation.

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Parts of the complaint that I did not investigate

67. I did not investigate complaint (k) which is about senior staff of GHC being married to a manager in the Council’s adult social care team. I do not regard this as a conflict of interest or as fault.
68. Complaint (l) is about an alleged failure in NHS provision and is not within the LGSCO’s remit. Ms X needs to use the NHS complaints procedure to resolve this complaint
69. Complaint (m) has been resolved locally by the Council which has paid Ms X’s mileage costs. There is no significant injustice to merit an investigation by the LGSCO.

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Investigator's decision on behalf of the Ombudsman