Summary: Mrs F complains on behalf of her son, Mr J, about his care and support at a supported living placement. There was fault in the care and support provided to Mr J which caused distress and put Mr J at risk of harm. The Council has agreed to apologise and make payments to Mrs F and Mr J to remedy this. There was fault in the way a best interest decision was recorded, but this did not cause injustice. We have ended our investigation into the issue of utilities bills as this is outside our jurisdiction.

The complaint

1. Mrs F complains on behalf of her son, Mr J, about his care and support at a supported living placement and about the way the provider managed her son’s bills. She says this put her son at risk and left him in debt.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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)
5. 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)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
7. 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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What I have and have not investigated

8. I have not investigated how the landlord dealt with Mr J’s bills as this is outside the Ombudsman’s jurisdiction. This is because people in supported living have their own tenancy agreement and are responsible for their own bills. Any dispute about this would be between the tenant and the landlord and not with the Council. A tenant could complain to the Housing Ombudsman if the landlord is part of that scheme.
9. Even if the Council was the landlord, the law says 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)

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How I considered this complaint

10. I spoke to Mrs F about the complaint and considered the information she sent and the Council’s response to my enquiries.
11. Mrs F and the Council had an opportunity to comment on two draft decision statements. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Mental capacity

12. The law says a person must be presumed to have capacity to make a decision unless it is established that they lack capacity. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt.
13. Any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The Mental Capacity Act 2005 and its Code of Practice sets out the steps that decision makers must follow to determine what is in a person’s best interests. When making a best interest decision a local authority must:
• consider all relevant circumstances.
• make every effort to enable the person to take part in making the decision, try to find out their views and take into account their wishes and feelings.
• consider if there are other options that may be less restrictive of the person’s rights.
14. If appropriate, it should also consult with:
• the views of anyone the person wishes to be consulted;
• anyone engaged in caring for the person or interested in their welfare;
• anyone with a lasting power of attorney (LPA) or any deputy appointed for the person by the Court of protection (COP).
15. The Code of Practice says a record should be kept setting out:
• how the decision about the person’s best interests was reached;
• what the reasons for reaching the decision were;
• who was consulted to help work out best interests; and
• what particular factors were taken into account.

(Mental Capacity Act 2005 Code of Practice, paragraph 5.15)

16. People with mental capacity may choose to appoint an attorney (Lasting Power of Attorney) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves.
17. If a person does not have capacity to choose an attorney, the Court of Protection may appoint a “deputy” to make decisions for a person.
18. An “appointee” is responsible for making and maintaining any benefit or pension claims on behalf of someone who is incapable of managing their own finances. There can only be one appointee acting on behalf of that person at any one time. The appointee must spend the benefit in the claimant's best interests. The Department for Work and Pensions (DWP) decides whether the person needs an appointee and whether the person applying is suitable. It also monitors appointees and investigates if someone has concerns about the appointee's actions.

Care and support

19. The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council.
20. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.

Charging for care and support

21. Where a council arranges care and support to meet a person’s needs, it may charge the adult for the cost of the care. These charges may increase every year.
22. Councils must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of their care. In assessing what a person can afford to pay, a council must take into account their income, such as pensions or benefits.

Supported living

23. Supported living is when the person has their own home and support is provided. When a person moves into supported living accommodation, they usually sign a tenancy agreement for their own house or flat, paid for by housing benefit if eligibility is met. People have security of tenure and cannot be moved against their will unless the tenancy is breached.
24. The council has a duty to assess whether someone in independent living accommodation has eligible social care needs. Care and support are provided by either an agency, a live in carer/personal assistant or by a floating support worker (who does not live with the person).
25. The Council’s website says if a person moves into supported living a housing officer from the housing association will explain the tenancy agreement and support the tenant with things like collecting rent and organising repairs.

Complaint procedure

26. Councils should have clear procedures for dealing with social care complaints. Regulations and guidance say they should investigate a complaint in a way which will resolve it speedily and efficiently. A single stage procedure should be enough. (Local Authority Social Services and National Health Service Complaints (England) Regulations 2009)
27. The Council’s Adult Care Services Complaints Policy says care providers should respond to complaints about their service and alert the Council to any complaints. If the complainant remains dissatisfied with the care provider’s response, the complaint can be escalated to the Council’s commissioning managers.

What happened

28. Mr J has learning disabilities and autism. His mother, Mrs F, is his appointee.
29. Mr J had been living in a residential college but his education and residence ended in summer 2021. A care and support assessment in May 2021 found that he would require one-to-one care 24 hours a day and could not move in with Mrs F due to her health needs. Supported living accommodation was requested.
30. A mental capacity assessment concluded that Mr J lacked capacity to understand his tenancy agreement and a best interest decision was taken that Mr J should move into supported living accommodation. After living temporarily with Mrs F, Mr J moved into his supported living accommodation in November 2021.
31. Mr J’s care and support plan was for 105 hours per week of one-to-one daytime support at an enhanced level and 63 hours of one-to-one waking night support at an enhanced level. Until 12 March 2022 an extra 14 hours per week of one-to-one care was commissioned as Mr J required two-to-one support in the community. The care and support was provided by Agency X who were also the landlord.
32. The Council assessed Mr J’s finances and found he should make a contribution towards the cost of his care and support. This was £535 per month. The Council says Mrs F was concerned about the charges Mr J had to pay. Mrs F says she was only concerned about paying because of poor care.
33. The tenancy agreement was signed by Mrs F, it said: The tenant will make payments weekly to the landlord's representative at a set amount detailed on the tenancy agreement for annual administration charges, Gas, Electric, Water, Payphone, Internet provision (if used) and a contribution to replace/repair/renew where the landlord has to make good general wear and tear, replace items and other small running costs. At the end of a financial year if requested the landlord will give the tenant a breakdown of monies collected and costs incurred. Any balance remaining in excess of £1000 may be requested as a refund.
34. Mr J’s finances were managed by Mrs F, who gave Agency X cash each week for shopping and activities. A risk assessment by Agency X said that to protect Mr J from financial abuse, a ledger and receipts were provided, and it was agreed that Mrs F could review the spending and ledger in her regular catch-up meetings with Agency X.
35. Mrs F called the Council on 27 October 2022 to raise concerns about the support provided by Agency X. The Council met with her and arranged a meeting with Agency X.
36. Mrs F met Agency X on 24 January 2023 and went through her concerns about Mr J’s care. These included that he had a fungal rash and blister, was not following the diet set by the NHS, his bed was broken and that a utility bill had not been paid. Mrs F was also concerned about the actions of some of the staff. She said they were sleeping in the flat, giving Mr J unsuitable food and requesting payments when there was already cash available. She had also been asked to leave the flat when she was visiting Mr J.
37. There was then a meeting between the Council, Agency X and Mrs F on 26 January 2023. Mrs F requested a new placement for Mr J.
38. Agency X spoke to Mrs F on 9 February 2023 and agreed an action plan to address the concerns she had raised, which it then sent to her. Mrs F asked about unpaid utilities bills.
39. Agency X wrote to Mrs F on 17 February 2023 responding to her concerns. It said it had taken action to address them; the utilities bills were now up to date and the accounts ledger had been archived.
40. There was a further meeting between the Council, Mrs F and Agency X on 14 March. The notes show the Council had reminded Agency X to ensure Mr J received one-to-one care and it asked for evidence of improvement in the care provided. But Mrs F remained concerned and, after not hearing back from Agency X, on 29 March 2023 the Council gave Agency X notice. The care and support review of 5 April said the staffing support provided by Agency X was not consistent and that all parties involved agreed that it would be in Mr J’s best interest to look for an alternative placement which could better meet his care and support needs. There was no separate best interest decision record.
41. There was some further correspondence between Mrs F and Agency X about utilities bills. Mr J moved out of the property on 28 April 2023 and went to live with Mrs F.
42. Mrs F came to the Ombudsman in August 2023. She told me Mr J had not received one-to-one care in the accommodation as when she visited there would only be one staff member there but her son lived with a roommate. She said the care provided was poor, Agency X had charged for two-to-one care in the mornings when it was not needed and staff took money for taxis but then used their own cars to transport Mr J.

My findings

43. In response to my enquiries, the Council sent a staffing record from Agency X which showed Mr J had a care worker at all times from January 2023 to 28 April 2023. I have not seen the staffing records for 2022.
44. Mrs F sent evidence of messages she had sent to the Council and to Agency X with her concerns about Mr J’s care. These show that in February 2022, the Council had reminded Agency X that Mr J should be supported at all times. They also show that Agency X had accepted there had been some problems with Mr J’s personal care in relation to his skin, and that there had been instances of Mr J being left alone in January 2022 as he had shaved his head. I therefore find there was fault in some of the care provided to Mr J, which put him at risk of harm and caused distress to Mrs F.
45. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused. But our remedies are not intended to be punitive and we do not award compensation in the way that a court might. Nor do we calculate a financial remedy based on what the cost of the service would have been to the provider. This is because it is not possible to now provide the services missed out on. Our remedies guidance says a moderate, symbolic payment is appropriate for distress or if someone has been put at risk of harm.
46. There should have been a mental capacity assessment and best interest decision when Mr J left the accommodation. Whilst there is reference in the care and support review of 5 April that the decision was being made in Mr J’s best interests, there was fault because there is no record setting out:
• how the decision was reached;
• what efforts were made to ascertain Mr J’s wishes and feelings;
• whether moving into Mrs F’s home was the least restrictive option;
• what the reasons for reaching the decision were;
• who was consulted; and
• what particular factors were taken into account, such as whether Mrs F was able to care for Mr J or whether it was possible to put a care package in place.
47. I therefore find fault in the way this best interest decision was recorded, but I do not consider this has caused significant injustice to Mr J or Mrs F as it is likely he would have moved in with Mrs F in any case.

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Agreed action

48. Although I found fault with the actions of the care provider, I have made recommendations to the Council in line with paragraph 5.
49. Within a month of my final decision, the Council has agreed to apologise to Mrs F and pay her £200 to remedy the distress caused by fault. It will also make a payment of £200 to Mr J to remedy the injustice of being put at risk of harm.

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Final decision

50. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman