London Borough of Merton (18 011 437)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 03 Sep 2019

The Ombudsman's final decision:

Summary: Mrs R says the Council delayed inexcusably in finding a suitable care placement for her son, Mr C. The Council was at fault. This fault caused Mr C and Mrs R distress. The Council has now found new accommodation for Mr C and apologised to Mrs R. It has agreed to apologise to Mr C and pay both sums to remedy its fault.

The complaint

  1. Mrs R complains on behalf of her son, Mr C about events surrounding the breakdown of his care placement in 2018. She says the Council was at fault for:
      1. Poor communication.
      2. A failure to carry out a health assessment of Mr C for two years;
      3. The fact that his care provider moved other residents into his accommodation;
      4. Inexcusable delay in finding a new placement;
      5. Suggesting that Mr C might be sectioned under the Mental Health Act;
  2. Mrs R seeks a recognition from the Ombudsman of Council fault and an apology.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’ 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)
  2. 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

  1. I spoke to Mrs R. Having done so, I wrote an enquiry letter to the Council. I considered its response and the evidence Mrs R and the Council provided and applied the relevant law and guidance.
  2. I sent a copy of my draft decision to Mrs R and the Council and invited comments.

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What I found

  1. The Care Act 2014 introduced a requirement for local authorities to promote ‘wellbeing’ and ‘signifies a shift from existing duties on local authorities to provide particular services, to the concept of ‘meeting needs’…. [which] recognises that everyone’s needs are different and personal to them. Local authorities must consider how to meet each person’s specific needs rather than simply considering what service they will fit into’. (Care and Support Statutory Guidance, Ch 1)

Needs assessment

  1. A council must carry out an assessment of any adult who seems to need care and support. It must also involve the individual and where appropriate their carer or any other person they might want involved. (Care Act 2014, section 9)
  2. Having identified eligible needs through a needs assessment, the Council has a duty to meet those needs. (Care Act 2014, section 18)
  3. If a council decides a person is eligible for care, it must prepare a care and support plan. This must set out the needs identified in the assessment. It must say whether, and to what extent, the needs meet the eligibility criteria. It must specify the needs the council intends to meet and how it intends to meet them. (Care Act 2014, ss 24 and 25)
  4. A council should review and revise a care and support plan where circumstances have changed in a way that affects the care and support plan needs. Where there is a proposal to change how to meet eligible needs, a council should take all reasonable steps to reach agreement with the adult concerned about how to meet those needs. (Care Act 2014, s27(4) and (5))
  5. The High Court has confirmed an individual’s wishes are not the same as their needs and their wishes are not the paramount consideration. A council must have ‘due regard’ to an adult’s wishes as a starting point, but social workers are entitled to exercise their professional skills and judgement in deciding how to meet eligible needs. (R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin))

Mental Health Act 1983

  1. The Mental Health Act 1983 gives mental health professionals the power, in certain circumstances, to confine those with acute mental health problems against their will.

What happened

  1. Mr C is a young adult with an autism spectrum disorder (ASD), moderate learning difficulties and obsessive-compulsive disorder (OCD). He also suffers from epilepsy. He has lived in residential care provided by the Council for some years in a different part of the country. The care provider, Acorn Park School in Norfolk (Home 1), caters for children and adults with ASDs.
  2. A 2017 adult assessment found that Mr C required 1:1 care most of the time and 2:1 care in certain circumstances. It found that, while his family was supportive, his ‘home visits [were] now becoming less frequent…this is quite understandable as [his] placement is residential. [He] is an adult [and his] needs are increasing especially management of his epileptic fits, challenging behaviours and his mother’s capacity to manage the needs’.
  3. At the relevant time, Mr C had recently transitioned from the children’s accommodation to the adults’. Emails suggest he found this transition difficult. Home 1 housed adult residents in four residential houses with four or five residents in each where they were able to live with a degree of independence. Mrs R says Mr C needed to live in his own accommodation as he could not cope with others in his living space. She says there was ‘an incident’ some months earlier when this had been tried.
  4. Mr C lived with one other resident in one of the houses. This was possible because the other resident largely remained in his room. However, as this house was intended for five adults, Home 1 was keen to move other residents in.
  5. In January 2018, unbeknownst to Mrs R, Home 1 moved a third resident, Mr F, into the house. This arrangement continued without incident for two months until Mr C complained to Mrs R on the phone about it. She was alarmed as Mr C did not like talking on the phone and she had not been aware of Mr F’s presence.
  6. Ms R complained to the duty manager who apologised for not telling her about the move but told her Mr C and Mr F had got on very well. The manager forwarded Ms R’s complaint to her manager. She also said there would be no difficulty with Mr C staying at Home 1 in the longer term.
  7. In early April 2018, Home 1 staff, concerned that a deterioration in Mr C’s behaviour might have been caused by his epilepsy medication, requested an alternative treatment. Mrs R, when informed, disagreed. She said she believed the cause was not the medication but the fact Mr F was sharing Mr C’s house.
  8. Mr C’s agitation continued to increase. In mid-April, a consultant psychiatrist prescribed a new epilepsy drug. The next day, Mr C assaulted a member of staff.
  9. The consultant psychiatrist called for an urgent review but it was not possible to arrange a time when Mrs and Ms F and representatives of the Council could attend for three weeks. In the interim, Mr C began to express regularly a desire to leave Home 1 and return to London.
  10. A care and support plan was produced in June 2018. Among the findings were:
      1. Staff stated that Mr C’s challenging behaviour could be very unpredictable;
      2. His current placement was unable to meet his needs. Therefore, a new placement had to be found;
      3. When he became overstimulated, he could damage property causing a risk to himself and others around him;
  11. At the care review, held in late May 2018, Home 1 staff said Mr C had seemed calmer recently but he continued to say he wanted to leave and was researching suitable homes in London on the internet.
  12. Home 1 said it looked as though, in the longer term, Mr C might have to live elsewhere. It said it would continue to care for him but, if Mr C was to stay there, before too long, another resident would have to move into the house.
  13. Ms and Mrs R said this was totally unacceptable. They said they knew this would not work. They accused Home 1 and the Council of placing the desire to save money above the duty to provide suitable care.
  14. The Council said it would need to reassess Mr C to see if he needed to live alone. Home 1 said they had no sole occupancy vacancies at present.
  15. After this meeting, Mr C continued to live at Home 1 but the home was clear there were no sole occupancy vacancies and, in time, other residents would have to move into the house. Ms and Mrs R began to look for places elsewhere.
  16. Communications between Mrs R and Home 1 were also strained and Mr C’s social worker, Officer O, requested that the family should communicate with Home 1 through the Council in future.
  17. Mrs R says she ‘made hundreds of phone calls and send countless emails over the following months. I got nowhere’. She says no one from the Council ever returned her calls and Officer O ‘was constantly unavailable or on leave’.
  18. In early June 2018, Officer O completed a care and support plan. It stated:
      1. Mr C needed support with all activities of daily living;
      2. He required a residential placement;
      3. Due to his epilepsy, he required constant monitoring;
      4. He exhibited challenging behaviours and required constant one-to-one supervision with two-to-one supervision in certain circumstances. He was a risk to himself and those around him as he could become violent; and
      5. His current placement could not meet his needs and a new placement had to be found.

Home 2

  1. A consultant psychiatrist assessed Mr C in late June and said Mr C was becoming increasingly anxious and, unless he could either live alone at Home 1 or move, he would be likely to assault someone seriously.
  2. In late June 2018, Mrs R identified a place in a specialist facility providing accommodation and care for disabled adults, Home 2. She approached the Council and asked it to approve and fund a place for Mr C there.
  3. In early July, a professional from Home 2 came to Home 1 and assessed Mr C to see if they could accommodate him.
  4. The records show that the Home 2 assessor had concerns about Mr C’s capacity to make decisions in his own interest. She was also concerned as to why Mr C had decided he wanted to leave his current placement.
  5. Nonetheless, she wrote to Officer O on 5 July 2018 saying that, subject to funding being agreed, Home 2 could offer Mr C a place. She asked Officer O to confirm as soon as possible whether the Council was interested. She said that, if it did so, Home 2 would not reserve a place for Mr C until funding had been agreed. Once this happened, there would be a transition period of indeterminate length while the move took place.
  6. There would then be a two-month moving in period during which the fees would be nearly £5,000 a week. There would then be a two-month settling in period at approximately £4,700 a week, after which, the price would fall to approximately £4,400 a week. It appears that Officer O did not pass this information on to anyone else at the Council. The Council later said that it would not be able to fund this placement without a continuing healthcare funding contribution from the NHS.
  7. Mrs R says she and Ms R phoned the Council frequently to ask for information about this assessment but received little if any response. There is email evidence that Home 1 too was concerned about a lack of communication from the Council.
  8. Eventually, in late July, Home 1 phoned Home 2 and was told Home 2 had informed Officer O of a provisional offer of a place two days after the assessment. Home 1 informed the Council of this.
  9. Mrs R now began to pursue the Council. The Home 1 manager too contacted the Council every day to warn that Mr C was becoming increasingly anxious.
  10. On 31 July 2018, the Council held a meeting to discuss the Home 2 placement. Mrs R was aware of this meeting. Officer O’s manager, Officer P told her that he and/or Officer O would inform her of the result. No one did.

August 2018

  1. The next day, Mrs R went into the Council offices at 8am and waited there until Officer P agreed to see her at twelve. At this meeting, Officer P told Mrs R:
      1. the Council still needed a doctor’s report and a psychologist’s report before it could decide on the assessment. Mrs R said these had been sent to Officer O in early July and while the Council delayed, Mr C’s anxiety increased;
      2. the Council could not make a funding decision unless there were two

comparable offers on the table. Mrs R asked what consideration was given to the fact that Mr C’s condition was deteriorating; and

      1. The Council now had to source a placement through its brokerage scheme. Mrs R said the Council had found nothing suitable through brokerage to date while Home 2 was suitable. The last home suggested by Home 1 had been completely unsuitable.
  1. Mrs R asked Officer P to take the case back to the panel and to remove Officer O from Mr C’s case. She said she intended to make a complaint about her and Officer P.
  2. In August 2018, Officer O, still involved in Mr C’s case, arranged a meeting with another provider to assess Mr C. She did not inform Mrs R. Mrs R researched the provider and found that the provision was unsuitable because it was shared accommodation in a noisy, urban setting.
  3. At the beginning of August 2018, Home 1 gave Mr C notice to leave by the end of August 2018.
  4. Throughout August, Mr C became increasingly anxious. On 13 August, Home 1 arranged for two staff members to take Mr C back to the Council’s area by taxi.
  5. On 14 August, Mrs R had a meeting with a senior manager who later emailed Mrs R and said:
    • She agreed that the Council had delayed in processing a CHC application.
    • The Council would ask Home 1 for an extension so Mr C could stay there.
    • The Council could not agree to an interim placement for Mr C at Home 2 because it would not be fair to him to become settled then have to move;
    • The level of care provided by Home 2 was, in any event, so high that social care could not be expected to fund it and CHC contribution would be required.
  6. Mrs R responded furiously saying keeping Mr C at Home 1 beyond the end of August would cause him to have ‘the biggest episode he has ever had resulting in him being sectioned’. On the same day, Ms R requested a safeguarding investigation into Mr C’s situation.
  7. Mrs R and Ms R met the assistant director of adult social care a few days later. He wrote to Ms R on 28 August saying there had been ‘missed opportunities’ in holding a continuing healthcare assessment for Mr C. He said, due to Mr C’s escalating behaviours, it was not appropriate now to carry out such an assessment but, the local care commissioning group, (CCG) and the Council were working to find appropriate placements and to avoid hospital admission. He said the Council would contact Ms R with ‘daily updates’
  8. In late August 2018, Mr C became violent and assaulted two Home 1 staff members. He was required to leave and went home to live with Mrs R. The Council paid Mrs R £400 a week through direct payments.
  9. This, she says, was very difficult. She was his sole carer for two months. During this time, his behaviour was ‘dreadful’. She was his sole carer. She could not go to work. She began taking antidepressants and beta blockers for stress.
  10. During that time, Mr C was assessed for PTSD.
  11. In mid-September, Mrs R travelled to Home 2 with Council officers and met the manager. Home 2 offered Mr C a place but said this would not be available until January 2019.

Current situation

  1. In mid-October 2018, the Council found a new temporary, respite care placement for Mr C. In December 2018, Mr C was awarded full continuing healthcare funding. The placement proved suitable and, since then, has been made permanent. Mrs R says Mr C’s condition has recently deteriorated.
  2. The Council’s adult social care department no longer funds or has responsibility for Mr C’s care.
  3. In October, the Council responded to Mrs R’s complaint. It said:
    • there had been a communication breakdown between Mrs R and the Council;
    • The Council had not acted in a timely fashion which contributed to the crisis;
    • The Council had used out-of-date paperwork which, again, caused delay;
    • The Council had caused unacceptable delay to the CHC process

Was there fault causing injustice?

Poor communication

  1. Mrs R says she phoned the Council ‘hundreds of times’ and wrote ‘countless emails’. Mrs R has provided copies of many emails between her, Ms R and the Council. I have seen no direct evidence of phone calls but I accept from the records I have seen that she made many such calls. She also attended the Council’s offices on several occasions.
  2. The records show Mrs R became extremely frustrated with the lack of information coming from the Council and the Council has accepted its communication was inadequate. This was fault and it caused Mrs R distress.

Failure to carry out a needs assessment for two years

  1. Councils should carry out a needs review when necessary or every year. It did not do so in this case. This was fault. However, it did not cause injustice. The delay in finding Mr C a new placement was caused by other failures set out below.

Moving another resident into Mr C’s accommodation

  1. It was not the Council’s fault that the placement at Home 1 broke down. Home 1 did not have single accommodation units of the kind Mr C required. The home was entitled to decide that it could not provide the care Mr C required.
  2. Mrs R says Home 1 should not have moved Mr F into Mr C’s house. I cannot find fault. This was a professional decision made by a professional care provider in possession of the facts. Home 1 believed the arrangement would work.
  3. And, in fact, the placement did work for two months. Even when it broke down, it is not certain it was Mr F’s presence, rather than a reaction to epilepsy medication that caused Mr C’s agitation. Home 1’s psychiatrist believed it was the medication. I cannot judge. Therefore, I do not find fault in this regard.

Delay in finding new placement

  1. In its response to my enquiries, the Council said it did not consider it was at fault for the delay in finding a placement for Mr C because it was difficult to do so given the complexity of his needs.
  2. It is true Mr C’s needs were complex and that, therefore, finding a place would take time. However, it is also true the Council knew this from the outset and that it had ample warning that the placement at Home 1 was going to end.
  3. At the review meeting in May, Home 1 was clear that it wanted to move others into the house and Mrs R was clear this was, in her view, unacceptable.
  4. Officer O completed an assessment in early June which said Mr C required another placement. In fact, the Council did not find one until late October 2018. Over four months later. Given the severity of Mr C’s needs, this was unacceptable delay and was fault.
  5. Even if there had been no errors in the way the Council went about finding a new placement, the delay in itself might well have amounted to fault. The Council had a duty to meet Mr C’s needs and it did not do so. But, in fact, there were also errors made which contributed to the delay which were also fault. The Council lost papers. It did not contact providers. Having been sent an offer from Home 2, Officer O did not respond or inform others for over three weeks.
  6. On 1 August, Home 1 gave Mr C notice to leave at the end of the month. Correspondence between Home 1 and Mrs R suggests that the home felt this was necessary to spur the Council into action. A Home 1 manager contacted Home 2 at the end of July and learned for the first time that Home 2 had offered Mr C a place. Mrs R had not known of this until then.
  7. The Council did make some efforts to find a place in August 2018 but given the complexity of Mr C’s needs and the impending deadline, it did not do enough. In the end, Mrs R agreed to have Mr C come home but it is clear that the original arrangement was for a two week stay. In fact, he stayed there for over six weeks.
  8. This too was fault. Mr C’s needs were great. He posed a risk to himself and to Mrs R while at home. He is a large man with little self-control who was known to attack those caring for him. At Home 1 his access to kitchen utensils and cutlery was heavily restricted because of fears that he would use them as weapons. He required constant one on one care in an environment with others on call.
  9. And yet, the Council left Mr C at Mrs R’s house for a lengthy period with little support. It is true, it paid her £400 a week through direct payments but this was, in the circumstances, quite inadequate. This was fault and it caused both Mr C and Mrs R distress which was injustice. Mrs R says she was unable to cope with the situation. She was left on antidepressants and beta blockers.
  10. The Council has accepted that it could have acted quicker and I find that it should have done. This was fault.

Home 2

  1. Mrs R says the Council’s failures led to the loss of a place at Home 2. I cannot find that this was the case. There was, in fact, no vacancy at Home 2 until January 2019. This was a matter beyond the Council’s control.

Suggestion of use of Mental Health Act

  1. Mrs R says the fact the Council considered using the Mental Health Act to detain Mr C caused him distress. I cannot uphold this part of the complaint.
  2. The Act allows professionals to detain people when they pose a risk to themselves or others. To do so, they must first consider whether this is necessary. This is a professional judgement made on the facts of any case.
  3. In any event, they did not detain Mr C. While, clearly, Mrs R suffered stress, I do not find the Council at fault.

Summary

  1. The Council was at fault for delay and failures of communication. This fault caused Mrs R and Mr C distress. The complaint exposes serious flaws in the way in which the Council dealt with the crisis in Mr C’s care.

Agreed action

  1. The Council has agreed that, within one month, it will:
      1. Apologise to Mr C and Mrs R; and
      2. Make a payment of £3,000 to Mrs R and £2,000 to Mr C in acknowledgement of the distress caused and the loss of non-monetary benefit.
      3. Pay Mrs R £200 in acknowledgment of the time and trouble caused by bringing this complaint.

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Final decision

  1. I have considered all the evidence I have and have reached a decision that the Council was at fault. The Council has accepted this decision and accepted my recommended remedy. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman

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