Summary: There was delay in revising Mr Y’s care and support plan after a review in April 2023 and a change of placement in August and a failure to complete a mental capacity assessment in line with the Code of Practice to the Mental Capacity Act. This caused avoidable confusion. There was also a failure to discuss the complaint with Ms X and to discuss Mr Y’s concerns about CCTV with him causing avoidable distress. The Council will apologise and complete a mental capacity assessment of Mr Y’s ability to make decisions around his care and support.

The complaint

1. Ms X complained for her relative Mr Y about the ending of Mr Y’s supported living placement (Placement A) and about the decision to make the current placement (Placement B ) permanent. She said the Council did not follow the correct processes under the Mental Capacity Act and Care Act.
2. Ms X complained about CCTV in the living room which she says worsened Mr Y’s mental health symptoms.
3. She also complained no-one from the Council’s complaints team contacted her to discuss her complaint and as a result, its response was one-sided.
4. Ms X said this caused avoidable distress and means Mr Y’s placement is unsuitable.

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The Ombudsman’s role and powers

5. 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)
6. 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

7. Ms X complained to us at the start of November 2023. She raised some more recent and ongoing matters not dealt with through the Council’s complaints process. I have not investigated those matters because we expect people to complain to the Council before we investigate.

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How I considered this complaint

8. I considered the complaint to us, the Council’s response to the complaint and documents in this statement. I discussed the complaint with Ms X. I also considered the parties comments on a first draft of this statement and information they provided.
9. 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

What should have happened

10. Councils must:
1. Carry out an assessment for any adult with an appearance of need for care and support (Care Act 2014, section 9)
2. Issue a care and support plan for adults with eligible care and support needs. This should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. (Care Act 2014, sections 24 and 25)
11. A council should review a care and support plan at in response to a change in circumstances (Care and Support Statutory Guidance, Paragraph 13.19). Where a decision is made after a review that a revision to the plan is necessary, the council must take all reasonable steps to agree the revision. If circumstances have changed in a way that affects the care and support plan, the council must carry out a needs assessment and revise the plan, taking all reasonable steps to reach agreement with the person. (Care and Support Statutory Guidance Paragraph 13.27)
12. An assessment of a person’s mental capacity is required where their capacity is in doubt (Mental Capacity Act Code of Practice paragraph 4.34)
13. Anyone assessing someone’s capacity should use a two-stage test:
• Does the person have an impairment of the mind or brain?
• If so does this impairment mean they cannot make the decision in question at the time it needs to be made (Mental Capacity Act Code of Practice chapter 4)
14. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:
• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision? (Mental Capacity Act Code of Practice chapter 4)
15. A person is unable to make a decision if they cannot understand, retain or weigh relevant information or communicate their decision. (Mental Capacity Act Code of Practice 4.14)

What happened

16. Mr Y is an autistic adult. He has a social worker from the council social care team that supports young adults with disabilities. An assessment of Mr Y’s needs when Mr Y was living at home (called a pathway plan assessment) determined he was eligible for social care and support. Mr Y’s care and support plan (referred to as a pathway plan) described his needs, the support he required and desired outcomes at the time.
17. Mr Y has been in several supported living placements since 2019. All of these have been arranged and funded by the Council. Mr Y’s previous placement gave Mr Y three months’ notice to leave around April 2023 and so the Council needed to look into other placements for Mr Y. There was a review of Mr Y’s care and support plan in April 2023. This summarised Mr Y’s achievements and progress. The outcome of the review was that Mr Y’s care and support plan would need to be revised (changed) as he was going to need a new placement.
18. Placement A carried out its own assessment of Mr Y in June 2023, determined it could meet his needs and offered him a place.
19. Mr Y moved to Placement A in the middle of August 2023. The Council’s case records indicate Ms X had already raised concerns informally about Placement A before Mr Y moved in.
20. A member of staff at Placement A said they had discussed with Mr Y at the viewing that there was CCTV in the communal areas. At the end of August, staff at Placement A told Mr Y’s social worker he appeared to be happy there.
21. At the end of August, Ms X asked the social worker for Mr Y’s care and support plan; she also raised concerns about CCTV and other issues.
22. In September, a social worker completed a social care assessment for Mr Y. He was eligible for care and support. The assessment noted Mr Y had mental capacity to make decisions about his care and support needs and could voice his wishes.
23. The social worker held two meetings with staff at Placement A in September. Mr Y had support from another adult who had worked with him and his family at the first meeting and an advocate at the second meeting and Ms X also attended both meetings. Both meetings were to discuss concerns about Placement A. At the second meeting, Mr Y said he wanted to leave as he was unhappy. He hadn’t signed a tenancy agreement. Placement A gave him 30 days’ notice. The minutes noted staff could not just remove the CCTV as other residents had consented to it.
24. The social worker made a referral to the Council’s placement team (to look for an alternative placement) in September.
25. In the last week of October, the social worker visited Mr Y. She noted he told her he was happy at the placement at present. The social worker noted she would get the leaving date extended till she could find another placement. Placement A confirmed it would extend the notice period. An incident happened at Placement A which I am not investigating. The incident meant Mr Y needed to leave Placement A urgently.
26. Ms X complained to Placement A. She raised concerns about the CCTV and other issues.
27. The social worker emailed Placement B at the end of October asking for an emergency placement. Placement B offered Mr Y a place and he moved there at the end of October.
28. Meantime Ms X had been contacting another care/support provider. The records indicate managers in the Council first said this provider could assess Mr Y and then said it should not as Mr Y had mental capacity around his care and accommodation needs and if he was happy at Placement B, then the Council would not seek to move him. A team manager had been in touch with Ms X by email and said she needed to give Mr Y time to settle at Placement B and another move would not be in his interests.
29. Ms X complained to the Council. The response at the end of October said:
• Mr Y had failed to engage with support at Placement A.
• All the other residents had signed a consent form for the CCTV and it needed to be in place to ensure the welfare and safety of others.
• Mr Y hadn’t signed a tenancy agreement, engaged with staff or agreed activities plans.
• The Council tried to resolve issues at two meetings. The minutes clearly said Mr Y did not want to stay at Placement A which then gave the Council notice. The social worker referred him to the placement team promptly.
30. Mr Y’s care and support plan of November 2023 sets out his eligible care and support needs, his outcomes and the support the Council has arranged.
31. The Council shared with me a copy of a document it said is a mental capacity assessment which a social worker did in November. The records indicate a member of staff from Placement B was present to support Mr Y and to make him feel at ease. The document is not in the usual format for an MCA. It sets out Mr Y’s views and wishes only. It says Mr Y is happy at Placement B and wants to stay there. He said his mother wanted him to live elsewhere, but he did not agree.
32. Ms X complained to us at the start of November.
33. The Council told me it was sorry no-one from its complaints team had contacted Ms X to discuss the complaint. It also told me there had been no assessment of Mr Y’s capacity to consent to CCTV, but it considered he had capacity to make decisions in relation to care and support.

Was there fault?

The ending of Y’s supported living placement (Placement A) and the decision to make the current placement (Placement B) permanent. Ms X said the Council did not follow the correct processes under the Mental Capacity Act and Care Act.

34. The Council reviewed Mr Y’s care and support plan in April 2023, after the previous placement gave notice. This was in line with Paragraph 13.19 of Care and Support Statutory Guidance because Mr Y’s placement at the time had given three months’ notice and so there was going to be a change in circumstances.
35. There was a fresh social care assessment in September 2023 and a revised care and support plan in November. Both of these documents were completed after Mr Y’s move to Placement A. The assessment and revised care and support plan should both have been issued and shared with Ms X and Mr Y at or around the time of Mr Y’s move to Placement A. This was a failure to act in line with Paragraph 13.27 of CSSG and was fault.
36. The Council assumed Mr Y has capacity to make decisions in relation to his care and support. This is in line with the principles in the Mental Capacity Act. However, there was doubt about his capacity to make care and support decisions raised at various points. The social worker’s capacity assessment for care and support decisions in November is not in line with the parts of the Code of Practice set out in paragraphs 13 and 14. It is just a record of what Mr Y told the assessor. The document does not set out the assessor’s view on whether or not Mr Y has capacity to make the decision in question, if he can understand, retain, weigh or communicate his decision. This is not in line with the Code of Practice and is fault.
37. There is no fault in making Placement B permanent. Mr Y’s latest view for the period I am investigating was that he was happy there. A council isn’t required to keep changing an adult’s placement at the request of their relative. There will be an opportunity for Ms X and Mr Y to put forward their views on Placement B and its suitability at the next review of Mr Y’s care and support plan.

Ms X also complained about CCTV in the living room which she says worsened Mr Y’s mental health symptoms.

38. The Council assumed Mr Y has capacity to consent to CCTV. There is no fault as the Mental Capacity Act specifically says people should be presumed to have capacity.
39. However, the Council should have documented Mr Y’s specific concerns and objections about CCTV in the records and attempted to address these. There is no record of any discussion with Mr Y about what exactly he was worried about. The discussions in both meetings centred around the other residents having consented to CCTV. This was a missed opportunity to allay Mr Y’s fears about CCTV. It does not however mean the provider or Council had to remove CCTV.

No-one from the Council’s complaints team contacted Ms X to discuss her complaint and as a result, its response was one-sided.

40. We expect a council to discuss a complaint with the complainant. This was poor complaint handling and was fault. The Council accepts this and has offered an apology.

Injustice

41. The delay in completing the needs assessment and revised care and support plan caused avoidable confusion and uncertainty about Mr Y’s needs at the time and how Placement A would be meeting them. In fact, the records include a request from Ms X for a care and support plan at the end of August (around the time of Mr Y’s move to Placement A), so she was seeking clarity on the issue. There is not enough evidence to indicate either placement did not meet Mr Y’s needs and information from Mr Y in November was that he was happy at Placement B.
42. The failure to discuss the complaint with Ms X caused avoidable distress.
43. The failure to complete an MCA for care and support decisions that is in line with the Code of Practice to the Mental Capacity Act means Mr Y’s mental capacity in relation to decisions about his care and support is still in question.
44. The failure to have an in-depth discussion with Mr Y to try and address his concerns and objections to CCTV caused avoidable distress.

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Agreed action

45. Within one month of my final decision, the Council will:
• Apologise for the distress and confusion caused by the delay in completing a needs assessment and revised Mr Y’s care and support plan before Mr Y moved to Placement A; for the failure to discuss the complaint with Ms X and for the failure to discuss Mr Y’s concerns about CCTV with him.
• Complete a mental capacity assessment for decisions around care and support and choice of placement.
46. The Council should provide us with evidence it has complied with the actions in paragraph 45.

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Final decision

47. There was a delay in revising Mr Y’s care and support plan after a review in April 2023 and a change of placement in August and a failure to complete a mental capacity assessment in line with the Code of Practice to the Mental Capacity Act. This caused avoidable confusion. There was also a failure to discuss the complaint with Ms X and to explore Mr Y’s concerns about CCTV with him causing avoidable distress. The Council will apologise and complete a mental capacity assessment of Mr Y’s ability to make decisions around his care and support.
48. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman