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Wirral Metropolitan Borough Council (20 001 577)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 22 Apr 2021

The Ombudsman's final decision:

Summary: Miss B complained on behalf of her disabled brother Mr C about how the Council dealt with his need for a change of residential placement, and matters associated with that. We find there was fault by the Council resulting in significant injustice, including a lengthy period in an unsuitable placement, for which a remedy has been agreed.

The complaint

  1. The complainant, whom I shall call Miss B, complains on behalf of her brother Mr C, who has autism, that in July 2017 the Council agreed, following proceedings at the Court of Protection (CoP), to find him an alternative care placement, and in the meantime to improve his care in his current care setting, where he had been placed by the Council. Miss B complains about the actions of the Council in these matters, which she reports adversely affected her brother’s mental and physical health and caused distress to his family.

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What I have investigated

  1. I have investigated the actions of the Council following the proceedings at the CoP, which resulted in a Consent Order dated July 2017.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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)
  4. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
  5. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

  1. I considered all the information provided by Miss B about the complaint. I made written enquiries of the Council and took account of all the information and evidence it provided in response.
  2. I have had regard to the Ombudsman’s guidance on remedies.
  3. Miss B and the Council had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

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What I found

Background

  1. Mr C is severely autistic, has a learning disability, and is non-verbal. He has complex needs and requires full support with daily living.
  2. At the end of September 2016 Mr C moved to a residential placement, at Provider X. He had previously lived in a residential school setting. The placement at Provider X was contrary to his family’s wishes, as they did not believe it to be a suitable placement to meet his needs. Mr C’s mother made an application to the CoP under Section 21A of the Mental Capacity Act 2005. This is the statutory route by which the CoP can be asked to vary or discharge a Deprivation of Liberty Safeguard authorisation: in this case the proceedings were brought as a means of challenging the suitability of the placement.
  3. The proceedings led to a consent order being issued. This set out that the Council:
  • Had placed Mr C on the waiting lists for Provider Y and other placements in its group, and should a place become available, he would be considered for a move to these placements;
  • Would use best endeavours to [assist] Mr C’s mother to obtain a mobility vehicle for him;
  • Would make efforts to ensure that Mr C’s privacy and dignity are maintained at Provider X by ensuring that he is indoors and out of sight of the street when unclothed;
  • Would use best endeavours to ensure that Mr C receives appropriate support from speech and language therapy (SALT) and input in relation to his sensory needs;
  • Would use best endeavours to ensure that Mr C is provided with a mix of activities inside and outside the placement; and
  • Would ensure that consistent efforts are made to allow Mr C to adjust to new activities that he is undertaking.

The Council’s investigation of Miss B’s subsequent complaint

  1. In July 2019 Miss B complained to the Council. An external investigator (EI) was assigned and in May 2020 the Council provided Miss B with a copy of the investigator’s report and findings. I will return later in this statement to the complaints process itself. The investigation report however provides a useful starting point for my consideration of relevant matters, which I set out below.

Suitability of the placement

  1. The EI stated in the investigation report that it had been accepted since the court hearing that placement at Provider X was not suitable. He considered it implicit in the acceptance that an alternative placement was needed, that X was struggling to meet all Mr C’s needs, with records referring specifically to the need for space for him to be active in, which was not available at X. The Council accepted the conclusions of the report. I can see no grounds to question these findings or reach a different view. A suitable alternative placement was not found for him until October 2019. I therefore conclude that he was in unsuitable accommodation from at least July 2017 to October 2019.

Compliance with the requirements of the consent order

  1. Insofar as placement on waiting lists for Placement Y and others in its parent provider group are concerned, the Council’s evidence satisfies me that the assessment of Mrs C’s needs had been sent to the provider group at the end of May 2017, a response had confirmed there were no current vacancies, and they were then asked to keep Mr C in mind should a vacancy occur in the future. It would not be possible to confirm whether any such vacancy would be a suitable match for Mr C until it arose.
  2. Regarding assistance for Mr C’s mother in respect of obtaining a mobility vehicle for him, while this was not part of Miss B’s complaint to the Council I have included it in my considerations in the interests of completeness, with the Council’s agreement. The Council has said that it would normally be for the disabled person’s appointee to deal with directly with the Motability scheme, and the social worker would not play a role in this. It says that Mr C had full access to an in-house vehicle provided by placement X, and so transport for him was never raised as a concern in any reviews. It accepts it did agree that it would use its best endeavours to assist Mr C’s mother to obtain a mobility vehicle for Mr C’s use, but says it is not clear from its records why it agreed to this or why it made no attempt to revise the consent order in respect of this. The Council was at fault in failing to take the agreed action, or in failing to seek amendment of the order. As a result, Mr C’s mother had raised expectations which were ultimately disappointed.
  3. On the matter of Provider X’s efforts to maintain Mr C’s privacy and dignity by ensuring that he was indoors and out of sight of the street when unclothed, I find the Council did take steps to engage with the provider regarding suitable window treatments. For clarity, this was another aspect of the court order which was not specifically referred to in Miss B’s complaint but which I have included here for completeness.
  4. The next action agreed was that the Council would use best endeavours to ensure that Mr C received appropriate support from SALT and input in relation to his sensory needs. In respect of SALT, the evidence shows a referral was made to the Community Trust for this service in April 2017, however there is no evidence of any action by the Council to chase this up. That was fault. In respect of support for Mr C’s sensory needs, again the evidence shows a referral was made for this in April 2017. Mr C had input from an occupational therapist who prepared a report to inform Mr C’s behavioural support plan. He also had input from a positive behaviour support facilitator from the NHS Community Learning Disability Team, and from a positive behavioural coordinator employed by the care provider. However, in the Council’s response to my enquiries the positive behaviour support facilitator stated: “Concerns regarding receiving the correct level of support to access community and behaviour /risk management raised a number of times. Also, a lot of directions to [Provider X] to ensure physical health needs were met and actioned. Requests made for [social worker] to explore increasing hours so able to access the community more frequently for engagement. [Provider X] variable in meeting his needs and recommendations to explore more suitable placement were highlighted to [social worker]. More settled towards the end of the year prior to discharge”. Those concerns referred to here should have been properly documented, together with proposals for addressing those concerns. However, the Council has been unable to confirm what the concerns raised about the level of support were. That is fault in record-keeping, at a minimum. The substantive issues around the level of support Mr C needed and the use of behaviour and risk management techniques are addressed later in this statement.
  5. On the matter of activities for Mr C, and evidence of any activity plan drawn up, with supporting evidence of the steps taken to follow this and to provide activities in addition to or as alternatives to those in place prior to the court order, the Council has provided a weekly timetable of activities dated 24 May 2017. It refers to activities of listening to music, watching videos, baking, ‘dinner table games’, sensory play, walk in the park, bikes in the park and a day centre activity. However, this does not evidence what was done in terms of following any plan or providing activities, and does not refer to the period after the court order. In the case notes, there is an entry referencing a meeting between the social worker and Provider X’s manager in October, which states: “Activities: no indoor activities at the moment only wants to go out. Previously did trampolining and baking”. During his complaint investigation, the EI noted there was a report from Provider X which referred to Mr C accessing the community on a regular basis with daily outings to the park or shops; to staff being ‘aware that further work needs to be put in to developing a timetable of activities that [Mr C] will engage in and promote further skill development’; and to him having been taken to various offsite locations and activities with varying success. However, the report was prepared in connection with the court proceedings: it cannot therefore evidence the action of the Council after the resultant court order to meet the requirements of that order. The Council’s actions here were fault, at the very least in record keeping.

The search for an alternative placement

  1. The EI, in the investigation report, set out a chronology covering the period from May 2017 when Provider Y was approached, to October 2019 when a place was identified and offered for Mr C at another provider. Twenty-five approaches were listed, though some were repeated approaches at different times to the same provider or group. Some approaches were made to providers in the Council’s area, and some were outside it. There were some periods of inactivity, and the Council says searching for a placement appeared to have been halted due to either staff being off sick or otherwise not in work for lengthy periods, to Mr C stabilising in his placement at X, and to the demands of other cases on its resources. That was fault.
  2. There was further fault in connection with a vacancy at Provider Y, a vacancy the Council was notified of on 6 October 2017. The Council contacted the provider and expressed an interest, adding: "Mum is aware and I have no problems with them contacting Mum". The family says that Mr C's Mother was not advised of the vacancy until 18 October, when the Council's records say she advised she would like to proceed with it. The Council's records show nothing further in respect of this until 1 November, when it contacted Provider Y and established the vacancy had been allocated to someone else. The Council should have been more proactive in ensuring Mr C’s Mother was aware of the vacancy and of what action was needed to progress this as a possible placement for Mr C, and in following this up without any delays.
  3. It is evident that Mr C has very complex needs and that it would not be straightforward for the Council to identify a suitable provider able to fully meet such needs, including accessibility for family members to visit. Under the circumstances it would have been best practice for the Council to approach as many potential providers, both inside and outside its area, at the earliest opportunity. It is not possible to say whether a placement for Mr C might have been found sooner had a different approach been taken and had there been no periods of inactivity. However, even if the Council could evidence it had consistently made best endeavours to find a suitable placement in the relevant period, the failure to secure such a placement was service failure, as a consequence of which as noted at paragraph 15 he remained in unsuitable accommodation for a lengthy period.

Behaviour management strategies

  1. In the EI’s report, reference was made to behaviour management strategies not being followed. The positive behaviour support plan for Mr C referenced triggers which were known to cause him anxiety, frustration, and agitation, which in turn led to challenging behaviours: behaviour management strategies were set out for dealing with these triggers and responses. These included giving Mr C space to calm, engaging him in meaningful activities, being aware of situations that might increase his arousal and avoiding these where possible, and monitoring and recognising early signs that he is becoming anxious, offering reassurance and diversions to a chosen preferred activity.
  2. While the EI’s report did not specify which strategies were not being followed, it was noted that the positive behaviour support facilitator had reported in July 2018 that staff at Provider X did not appear to be using behaviour management strategies with Mr C, and that there was a question about whether Mr C was happy living at this placement or if his needs were being met, and that his behaviour was reflecting this. Given the context, while Mr C could present challenging behaviour in any setting, it is more likely than not that the proper and consistent employment of the behaviour support strategies identified by this professional would have reduced the frequency of significant instances of such behaviour and lessened their negative impact on Mr C.

Inadequate support – a serious incident

  1. The Council’s records with reference to Mr C’s required level of support include the following:
  • A risk management plan from April 2018 which stated Mr C was ‘always supported 2:1 whilst in the community as he finds it difficult to stand and wait …and is at risk of running off”; and
  • Notes from a meeting in May 2018 which included the following:
    “Care support is: 98 hours 1:1 plus 2:1 14 hours a week community support. Shared waking night cover. Discussed 2:1 this was about a previous risk assessment due to risk of running off. No repetition of this behaviour. Is fine with one staff….Agreed to see how [Mr C] gets on with activities in safe places such as parks etc where risks less and less traffic and people. 1:1 staffing but with second staff member initially present, but to assess how 1:1 support goes….Agreed to leave the current provision as it is for now”.
  1. At the beginning of July, Mr C was taken on an outing to a seafront location with only 1:1 supervision. When in a busy area, Mr C got away from his carer, undressed and spread faeces; he was seen by members of the public, and the police were called. The incident was a serious breach of his dignity, and he was at risk of harm from running into traffic.
  2. In a report completed after the incident, Provider X noted that since early in the morning of the day of the trip, Mr C had been boisterous and exhibiting sexualised behaviours; he was asked several times to go to his room for privacy. The indication is that he was already in a heightened state of arousal or anxiety, which should have alerted staff to the increased risk of behaviours which would require appropriate management for his safety and privacy when in the community.
  3. The Council considered it had been an ‘error of judgment’ to take Mr C to the seafront at this time: it had been too stressful for him, leading to his behavioural response. However, this was not simply an error of judgment: there had been no review of Mr C’s care plan to reduce the number of carers to support him in the community from two to one. The failure to ensure that he was supported by two carers, and received the care he required and was entitled to receive, was fault. There was further fault in that Mr C’s mother was not promptly informed about the incident.

Further incident in the community

  1. In April 2019 there was a further incident in the community. Mr C was out in a park with another service user and three carers. As before, Mr C’s assessed support need was for 2:1 care when in the community. The carers assisted service users to the toilet, then one carer went to use the toilet. But another carer, a female, then wished to use the toilet, and not able to leave the remaining staff member with both Mr C and the other service user they took Mr C into the toilet with them. He was asked to stand against the wall while she used the toilet.
  2. A safeguarding referral was made in respect of this incident. The care provider, while accepting that the incident had been avoidable and was bad practice, reported that Mr C had not shown any behaviours to indicate that he was distressed or upset by the incident.
  3. Under section 42 of the Care Act 2014, a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. In this case, the Council duly considered the referral and decided the threshold for enquiries under the relevant legislation was not met, as Mr C was safe and well. The matter was to be addressed as a staff conduct issue. That was a decision the Council was entitled to make, and was not fault. However, the incident itself ought not to have occurred, and that was fault. There was further fault in that the Council failed to communicate with the family about the incident and explain its decision in respect of safeguarding.

Cost of cleaning of the provider’s car

  1. While out in the car belonging to Provider X, Mr C smeared faeces. This was not an unusual behaviour for Mr C, particularly when upset. The car required deep cleaning, and the provider used funds which were for Mr C’s clothing needs to cover the cost of this cleaning. That was fault.

Poor communications with Mr C’s family

  1. There were further failings in communications in addition to those already referred to in paragraphs 29 and 32 above.
  2. The Council failed to notify the family when Mr C’s allocated social worker changed, and there was a period of five months between November 2018 and April 2019 when there was no communication from the social worker with the family at all. These parts of the complaint were upheld by the EI. The identified failings were fault.
  3. In May 2019 Provider X gave 28 days’ notice of intention to terminate Mr C’s placement at the home. Mr C’s mother says she was first advised about this at a meeting on 9 May, although the Council’s records do not evidence that this was discussed at that time. In any event, on 24 May the Council sent an email to Mr C’s mother referring to the 28 days’ notice and saying: “I am not sure if [Provider X] will wait this long”. Mr C’s mother replied expressing her concerns about this, and the Council then said: “Rest assured that [Provider X] won’t stop supporting [Mr C] once the notice period runs out. [Provider X] will support and accommodate [Mr C] until an alternative is found - however long this takes”.
    The failure to communicate clearly with the family from the outset about this serious matter was fault.

Complaint handling issues

  1. There was considerable delay in the complaints process. Miss B originally submitted a letter of complaint via her MP in May 2019 and the Council responded in June. Miss B was dissatisfied and replied: The Council received that reply on 11 July 2019 and logged it as a formal complaint. The final response to the complaint was not issued to Miss B until 7 May 2020. The delay, attributed to staff absence, was fault, for which the Council apologised.
  2. The findings and recommendations made by the EI in his report were accepted by the Council. Of nine heads of complaint, two were upheld, three were partly upheld, and four were not upheld. In respect of upheld complaints, the recommendations made were that the Council should apologise for the following:
  • The failure to contact the family between November 2018 and April 2019;
  • A misleading email relating to the search for alternative accommodation;
  • The ‘error of judgment’ in taking Mr C to the seafront in July 2018;
  • The failure to notify the family straight away about that incident; and
  • The use of Mr C’s money for valeting of the provider’s car.
  1. There were no specific recommendations set out in respect of service improvements. When the Council wrote to Miss B with the EI report on 7 May 2020, it said it could see from the list of recommendations that there was further work to be done by the Council. The Council has said that ‘further work’ referred to further improvements in the services it provides. It says the complaints team has been working to ensure that relevant actions arising from complaints are shared between teams and that learning is built into professional development and training.
  2. In its letter of 7 May 2020, the Council said it would like to offer apologies for those parts of the complaint which had been upheld. There was no acknowledgement of the impact of the acknowledged faults on Mr C or his family, and the apology did not explain what steps had been taken to ensure that so far as possible these faults would not recur.

Injustice to Mr C and to his family

  1. The principal injustice to Mr C, arising from service failure, is that he was in unsuitable accommodation for a period of at least 27 months.
  2. There was also injustice caused to Mr C’s mother. In addition to the injustice of concerns associated with the unsuitability of the placement and the care Mr C was receiving there, Mr C’s mother suffered distress and uncertainty because of the Council’s failings in communications as well as disappointed expectation associated with the failure to provide the promised help with obtaining a mobility vehicle.
  3. Finally, Miss B was caused some frustration from fault in the complaints process. and was put to unnecessary time and trouble pursuing the matter on behalf of her brother.

Agreed action

  1. In recognition of the fault and injustice identified above, I recommended that within four weeks of the date of the decision on this complaint the Council:
  • Issues Mr C’s mother and Miss B with a formal written apology, which in line with the Ombudsman’s guidance on remedies should accept responsibility for the identified faults and acknowledge the impact of these faults on Mr C and his family;
  • Pays £7,000 to Mr C via his mother as his appointee, to be used for his benefit; and
  • Pays Mr C’s mother and Miss B £500 each.
  1. If reimbursement has not yet been made for any monies belonging to Mr C or his family used to pay for cleaning of Provider X’s car, that should also be paid within four weeks.
  2. I also recommended that within three months of the date of the decision on this complaint the Council draws up a table clearly setting out the lessons learned from this complaint and the actions taken to improve processes and services as a result (or a timescale for completion of these actions), and provides Miss B with a copy.
  3. Evidence of all the above actions should be provided to the Ombudsman.
  4. The Council has agreed to my recommendations.

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Final decision

  1. I have completed my investigation on the basis set out above.
  2. Under our information sharing agreement, we will share this final decision with the Care Quality Commission (CQC).

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Parts of the complaint that I did not investigate

  1. For the reasons set out in paragraph 7 above, I did not investigate the actions of the Council prior to the conclusion of the CoP proceedings in 2017. I did not consider there were exceptional grounds to exercise discretion to accept a complaint about events prior to this date.

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Investigator's decision on behalf of the Ombudsman

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