Summary: Mr X complained the Council failed to sufficiently safeguard his adult son, Mr Z, from harm caused by his housemate in supported living accommodation. The Council was not at fault for moving the two men into the accommodation initially, nor for the way it dealt with the safeguarding concerns. However the Council failed to consult properly in its best interests decision making regarding Mr Z and his living situation. This has caused uncertainty to Mr X and his son. The Council also failed to respond properly to Mr X’s complaint. This caused Mr X frustration and time and trouble. We have recommended the Council apologise, pay Mr X £150 and carry out a fresh mental capacity and best interests assessment into Mr Z’s living situation.

The complaint

1. Mr X said the Council failed to take sufficient action to protect his adult son, Mr Z, from harm while he was living in supported accommodation. He also said the Council failed to deal with his complaints properly.
2. Mr X said the Council’s actions have caused his son avoidable distress and harm.

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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 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)
5. We cannot investigate late complaints unless we decide there are good reasons. In this case, I have decided to look at events from when Mr Z first moved into the supported accommodation in August 2020 up to and including when his father, Mr X, brought his complaint to us in September 2022. This is due to complaint handling failure by the Council over this two-year period which I set out in more detail at paragraphs 66 and 67.
6. 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)
7. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
8. If we are satisfied with an organisation’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

9. I considered the information provided by Mr X and the Council.
10. I considered the relevant law and guidance as set out below.
11. I considered our Guidance on Remedies.
12. I considered all comments made by Mr X and the Council on a draft decision before making a final decision.

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What I found

Law and guidance

Adult safeguarding

13. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse.
14. The purpose of the enquiry is to decide whether or not the local authority or another organisation, or person, should do something to help and protect the adult. If the local authority decides that another organisation should make the enquiry, for example a care provider, then the local authority should be clear about timescales, the need to know the outcomes of the enquiry and what action will follow if this is not done.
15. What happens as a result of an enquiry should reflect the adult‘s wishes wherever possible, as stated by them or by their representative or advocate. If they lack capacity it should be in their best interests if they are not able to make the decision, and be proportionate to the level of concern. (Section 42, Care Act 2014)

Mental capacity assessments

16. 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.
17. 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.
18. The five key principles in the Act are:
• every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
• a person must be given all practicable help before anyone treats them as not being able to make their own decisions.
• just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
• anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
• anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.
19. The Act says the following people should be consulted in best interests’ decision making:
• Anyone previously named by the person as someone to be consulted;
• Anyone engaged in caring for the person;
• Close relatives, friends or others who take an interest in the person’s welfare.
20. It goes on to say, “For decisions about major medical treatment or where the person should live and where there is no-one who fits into any of the above categories, an Independent Mental Capacity Advocate (IMCA) must be consulted.”

What happened

21. Mr Z and his housemate, Housemate A, moved into the same supported accommodation in 2020. They were the only tenants at this time.
22. Both adults have learning disabilities. In addition to this, Housemate A has challenging behaviour.
23. The Council did a mental capacity assessment for Mr Z around six months before he transitioned from living with his family to living in the supported accommodation.
24. This assessment found he did not have capacity to make decisions about how he transitioned into supported accommodation as he struggled to make decisions and doing so caused him significant anxiety and distress.
25. Due to this, Mr Z’s parents requested that he be given as little notice as possible of the move into supported accommodation. The Council agreed this was in Mr Z’s best interests.
26. Prior to Mr Z and Housemate A moving into the same accommodation, they only met once when they attended a class together. The Council’s Occupational Therapist attended and observed. Records show the meeting went well but their compatibility was still mainly unknown due to them only having one meeting.
27. The Council said the reason Mr Z and Housemate A only met once before moving in together is because of Mr Z’s parents’ wish for Mr Z to have as little notice as possible of his move into supported accommodation.
28. Since 2020, the care provider has recorded more than thirty ‘incidents of harm’ in the property. The first ‘incident of harm’ recorded by the care provider happened almost two months after Housemate A and Mr Z began living together.
29. The Council explained that ‘incident of harm’ is the term used on the care provider’s recording system. It said ten of the thirty incidents resulted in physical harm to Mr Z. It said the remaining incidents did not place Mr Z at risk.
30. The physical harm Mr Z experienced from Housemate A included being hit. On two occasions it is recorded that Mr Z was left with marks, and on one occasion he was left with a cut on his face.
31. Many of these incidents occurred when Housemate A was exposed to a ‘trigger’ such as noise or frustration. The records show that weeks often went by with no incident and then an incident would occur.
32. The incidents which met the safeguarding threshold were reported to Mr Z’s social worker. In response to these incidents, the care provider and Council held meetings with Mr Z’s parents, held multi-agency meetings and put in place several measures to reduce the risk to Mr Z in the home. These included:
• separating Mr Z and Housemate A more in the house;
• increasing the number of carers present;
• making changes to their schedules to minimise Mr Z’s exposure to Housemate A at potentially challenging times;
• taking steps to improve Mr Z and Housemate A’s relationship including assisting them to spend quality time together;
• referring Housemate A for several forms of support regarding his challenging behaviour; and
• calling the police to most incidents which met the safeguarding threshold, with police regularly speaking to Housemate A about his behaviour.
33. Police placed a ‘marker’ on the property, meaning calls from that property would be responded to urgently. However police took no steps to prosecute Housemate A due to his vulnerability.
34. The supported accommodation staff and Mr Z’s social worker routinely asked Mr Z following the incidents what he wanted to do, and he said he wanted to remain in the accommodation and wanted to remain living with Housemate A. However the records also show Mr Z becoming sad and anxious in response to the incidents.
35. In May 2021 Mr X complained to the Council. He said his son was becoming anxious and withdrawn following Housemate A hitting him and destroying belongings including their television set, in the supported accommodation. He noted the measures support staff were taking to keep them separated and safe but said these were not working and the two men should live apart.
36. A few weeks later the Council responded to Mr X’s complaint. It said unfortunately matching people to live together is not an exact science but in response to the incidents, it had increased care hours to them both and it was looking for a third housemate to, “dilute the current dynamics”. This complaint response did not inform Mr X at what stage of the complaints process his complaint had been dealt with, or how he could escalate it if he wished.
37. After ten months in the accommodation with the incidents continuing, the Council made an offer of alternative accommodation for Mr Z to Mr Z’s parents, where the other two residents were considerably older than Mr Z but had no challenging behaviour.
38. Mr Z’s parents visited the alternative accommodation but declined the offer. They said the other residents did not have enough in common with Mr Z. They also said they wanted to see how the trial went of moving a third housemate into the property with Mr Z and Housemate A, which was by then underway. Mr Z’s parents also said that, as their son was not the aggressor and he liked living in the property, it should not be him that had to move, it should be Housemate A.
39. In May 2022, almost a year after his initial complaint, Mr X complained again to the Council. He said his son was still being assaulted by Housemate A and that he felt let down by the Council. However he received no response. The Council said his message was diverted to the spam folder and so the Council did not see it.
40. The situation did not improve with the addition of a third housemate. Therefore the Council and care provider considered whether Housemate A’s behaviour towards Mr Z should be considered as a breach of tenancy, with a view to him being evicted from the property.
41. The care provider acknowledged that both tenants were entitled to live in peace and Housemate A’s challenging behaviour was preventing this. It also identified the clause in their tenancy agreements which prohibited Housemate A’s behaviour. However it said due to Housemate A’s vulnerability, an eviction against him would be unlikely to be enforced and therefore was not action it was willing to take. The Council agreed with this.
42. Further incidents then occurred which negatively affected Mr Z but he continued to say he wanted to live at the accommodation. A meeting was held between professionals and parents in June 2022.
43. It was decided at this meeting that Mr Z would undergo a further mental capacity assessment to establish whether he had capacity to continue making decisions about where he lived. Two months later, the mental capacity assessment took place.
44. The mental capacity assessment consulted two professionals involved with Mr Z, one of whom said he had not seen him for several years but said if Mr Z expressed he did not want to move, that should be respected. The other professional said the property was fine, but the mix of residents was not.
45. The social worker did not consult the care provider or obtain Mr Z’s parents’ views. They instead noted Mr Z’s parents, “were asked their opinion on what is in (Mr Z’s) best interest. Unfortunately no feedback was offered in relation to this except negative feedback”. They noted the care provider was not consulted because, “as a paid provider there will be a conflict of interest”.
46. The mental capacity assessment decided that Mr Z still did not have capacity to make the decision regarding where he lived. The Council therefore made a best interests’ decision on his behalf and decided that Mr Z remaining at the supported accommodation was in his best interests.
47. Two months later, further incidents occurred within the period I have investigated that met the threshold for safeguarding enquiries.
48. Safeguarding documents show Mr Z’s support staff following these incidents were concerned for Mr Z’s mental wellbeing and safety. Following the latter incident, they said they were concerned they could no longer keep him safe from the other residents whilst he lived in the accommodation.
49. The records show Mr Z had become more withdrawn and anxious over time due to these incidents. The time for interaction between the residents was reduced further, their individual care hours were increased again and police were contacted.
50. At the current time, the Council is continuing to explore alternative solutions to address the situation. Mr Z and Housemate A continue to live together.

My findings

Preparation for living together

51. There is nothing in the best interests decision documents from 2020 which would suggest that Mr Z could not have spent more time with Housemate A before them moving in together. Only that Mr Z should not have been informed during these meetings that a move was going to take place.
52. Given Housemate A has challenging behaviour, the two spending more than one session together before moving into the same property would have been preferable to learn more about their compatibility as joint tenants.
53. However, as significant concerns about Housemate A’s behaviour towards Mr Z only began to emerge after almost two months in the accommodation, I cannot say with any certainty that additional preparatory meetings would have led to the behaviour becoming apparent sooner.
54. Therefore on the balance of probabilities the Council was not at fault when it proposed to move Mr Z and Housemate A into the same supported accommodation.

Safeguarding Z while in the accommodation

55. The Council and the care provider took a range of actions to safeguard Mr Z and improve the situation in the accommodation. Safeguarding procedures were also followed as we would expect.
56. The Council and the care provider did the most they could to safeguard Mr Z within the limits of what was possible, given Housemate A’s vulnerability and Mr Z consistently expressing that he wished to remain in the accommodation.
57. In terms of safeguarding actions taken, I do not find fault with the Council or care provider.

Best interests decision making

58. It is not for the Ombudsman to say what was in Mr Z’s best interests in this case and we do not question decisions taken by qualified professionals where there is no fault in the process followed in reaching that decision.
59. However in this case, there was fault in the process, as the Council did not consult properly in its August 2022 mental capacity assessment and best interests decision making. This was fault.
60. The Mental Capacity Act recommends close relatives and carers be consulted. Where it is not appropriate or practical to do this, in cases deciding where a person should live, it recommends that the Council instruct an IMCA. The Council did neither in its August 2022 mental capacity assessment and best interests decision making for Mr Z regarding where he should live.
61. Mr Z’s parents were contacted as part of the capacity assessment but the assessment does not give a clear reason about why their comments were not included. It also did not consult any of Mr Z’s main carers at the supported accommodation because it said they had a conflict of interest due to working for a “paid provider”.
62. There is nothing in the Act or Code of Practice which says people employed by a care provider cannot be consulted in best interests decision making about the person they care for. Instead the importance of their involvement in best interests’ decision making is clearly set out in law.
63. By not consulting the relevant people in its best interests’ decision making about Mr Z – or instructing an IMCA if it did not feel it was appropriate to consult the people closest to him - the Council was at fault.
64. Another key principle of the Mental Capacity Act is, just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
65. Therefore I cannot say, were it not for this fault, whether the best interests decision would have been different. Instead Mr Z and Mr X have been caused uncertainty as to whether a different decision would have been made if processes had been properly followed.

Complaint handling

66. The Council failed to inform Mr X of his right to escalate his complaint when it responded to him in June 2021. The Council was at fault. This fault caused a missed opportunity for Mr X to have his complaint fully addressed much earlier and has put him to time and trouble in coming to the Ombudsman.
67. The Council then failed to respond at all to the complaint Mr X made in May 2022. This fault caused considerable further frustration to Mr X.

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Agreed action

68. Within one month of the date of the final decision, the Council has agreed to:
• apologise to Mr X and Mr Z for the uncertainty caused by the Council’s failure to consult properly during Mr Z's August 2022 mental capacity assessment;
• apologise to Mr X for twice failing to handle his complaints properly;
• carry out a fresh mental capacity assessment for Mr Z regarding his living situation, which either consults relevant people close to him including his carers and family, or if this is not considered appropriate, instructs an IMCA to act on Mr Z’s behalf; and
• pay Mr X £150 in recognition of the frustration and time and trouble the Council caused him due to its poor complaint handling over a two-year period.
69. Within three months of the date of the final decision, the Council has agreed to:
• remind all staff that deal with mental capacity assessments and best interests decision making, that the Mental Capacity Act clearly sets out which people should be consulted in capacity assessments on the person’s behalf and that working for a care organisation in a paid capacity does not automatically prohibit a carer from being consulted due to ‘conflict of interest’;
• remind its complaint handling staff that it is important to inform the complainant in the Council’s complaint responses of any right they have to escalate that complaint; and
• review its systems and put in place measures to prevent complaints being moved into spam folders, or to have these folders checked more routinely for complaints sent there in error.
70. The Council has agreed to provide us with evidence it has complied with the above actions.

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Final decision

71. I have completed my investigation. I have found fault leading to injustice and have recommended an apology, a financial remedy and several service improvements.

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Investigator's decision on behalf of the Ombudsman