Summary: Ms X complains about the way the Council dealt with her concerns about her brother Mr Y’s care needs and possible misuse of his finances. We found fault as the Council delayed carrying out a reassessment of Mr Y’s care needs. We have recommended a suitable remedy for the time and trouble Ms X has been put to in pursuing her complaint. So, we have completed our investigation.

The complaint

1. The complainant whom I will refer to as Ms X complains for her brother Mr Y about issues with his care and misuse of his finances by the care provider at the residential home where he lives. Ms X is concerned;
• the care provider inappropriately gave Mr Y alcohol which affects his medication and has health implications for him.
• there were unexplained expenses in Mr Y’s bank account which the care provider could not reconcile or provide receipts for.
• about a lack of a care plan by the Council for Mr Y’s care needs and he is not receiving the level of support he should have.
• the care provider has not helped Mr Y communicate with his family from March 2020 onwards during the COVID-19 pandemic lockdown. Ms X says there were difficulties arranging video calls and making sure his phone or laptop were adequately charged. Ms X says the care provider accused Mr Y of changing his password so a call could not be made. Ms X says Mr Y lacks the ability to change the password.
• the care manager refused Ms X access to see Mr Y to enable him to sign a consent form to pursue a joint complaint to us on the issues Ms X has raised. Ms X says she was told Mr Y must have his advocate present to ensure his wishes on the matter before signing such a document.
2. Ms X says the issues have caused distress to both herself and Mr Y.

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What I have investigated

3. I have investigated Ms X’s complaint about the way the Council responded to her concerns about Mr Y’s care and alleged misuse of his finances.
4. I have not investigated the concerns raised as a complaint from Mr Y. This is because we do not have signed consent from Mr Y who is deemed to have capacity to make decisions regarding his health and welfare.
5. The final part of this statement explains my reason for not investigating Ms X’s concern she was not allowed to see Mr Y to enable him to sign a consent form to make a complaint.

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The Ombudsman’s role and powers

6. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6))

7. 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

8. I have read the papers submitted by Ms X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it 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

Care plan

10. The Care Act 2014 gives local authorities a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what 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. 

Reviews

11. Section 27 of the Care Act 2014 gives an expectation that local authorities should conduct a review of a care and support plan at least every 12 months. The authority should consider a light touch review six to eight weeks after agreement and signing off the plan and personal budget. It should carry out the review as quickly as is reasonably practicable in a timely manner proportionate to the needs to be met. As well as the duty to keep plans under review generally, the Act puts a duty on the local authority to conduct a review if the adult or a person acting on the adult’s behalf asks for one.

Lasting power of attorney ( LPA)

12. There are two types of lasting power of attorney:

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

Key events leading to the complaint

13. Mr Y is a mature gentleman with a brain injury. He has two siblings, Ms X and Mr Z. Mr Y is considered to have capacity to make some decisions, but Ms X holds a property and finance LPA for Mr Y. Ms X is also a court appointed deputy for Mr Y to act on his behalf over his property and affairs.
14. In 2018 Mr Y moved into a residential care placement at home for people with learning disabilities. The home is in a different Council’s area I will refer to as Authority B. The Council assessed Mr Y as needing 15 hours a week of 1 to 1 support for his day-to-day activities. This is listed in a support plan. The care home is responsible for providing the support to help Mr Y engage and manage his daily activities.
15. A social worker carried out a reassessment of Mr Y in October 2018 at the care home. There were no concerns raised. Ms X was invited but did not attend the reassessment.
16. In June 2019 the care home raised concerns with the Council Mr Y was refusing the support it was offering but telling Ms X the opposite. The care home said it caused difficulties with Ms X as she had ‘high expectations of the service’ and failed to understand Mr Y did not want to go out. The care home asked the Council to review the placement in August 2019. The Council’s review in September 2019 noted Mr Y’s unhappiness at the current placement and it agreed to look for an alternative.
17. Ms X says in December 2019 there was agreement Mr Y would move into a new care provider’s accommodation which offered supported living placements. Mr Y went into hospital for surgery in December 2019 and due to a post-surgery complication remained in hospital until February 2020.
18. The care home told the Council it intended to give notice on Mr Y’s placement in January 2020. A social worker carried out a support plan review. This confirmed Mr Y was living in a residential home, but his needs could be met in the community such as in supported living accommodation. The social worker noted a decline in Mr Y’s mobility, so he still needed support. The social worker noted Mr Y had not been accessing the community due to low mobility and poor health. But he was now in better health having been in hospital and more engaged to explore community activities. The Council said it would look for new accommodation for Mr Y.
19. The social worker made visits to see Mr Y in hospital. Mr Y said he was happy, more settled at the care home and wanted to stay. Mr Y was discharged back to the care home in February 2020 on a 4-week interim placement. Ms X attended a meeting with the Council and care home to discuss pending issues and establish a positive working relationship with the care home. Mr Y remained at the care home due to the COVID-19 pandemic lockdown. Ms X told the social worker in April 2020 Mr Y seemed well with staff supporting his activities.
20. Ms X made a formal complaint to the Council in January 2021 about the Council’s lack of engagement with Mr Y and his care needs. Ms X complained about the care home’s management of Mr Y’s finances as there were unexplained purchases. Ms X also complained care home staff allowed Mr Y to drink alcohol even though he was on medication. Ms X said the Council should have asked her as she held LPA for Mr Y and knew his illnesses and medication history.

The Council’s response to Ms X’s complaints

Lack of engagement by the Council in Mr Y’s care

21. The Council confirmed it last reassessed Mr Y’s care needs in September 2019 so upheld this part of the complaint. The Council allocated a new social worker to Mr Y’s case to carry out a reassessment of his needs and draw up an up-to-date support plan.
22. The social worker contacted Ms X in March 2021 to carry out an annual review of Mr Y’s needs. Ms X reported she felt the care home were influencing Mr Y’s behaviour and she had been told she could not see Mr Y without his advocate present. The social worker advised Ms X that was not the case. But the Council allocated Mr Y an advocate in March 2021 to help him with his wishes and help him understand any documents he was asked to sign. This was so Mr Y’s decisions and feelings were respected and acknowledged about his well-being and finances. The social worker told Ms X that while she had LPA for Mr Y’s property and finances, she could not make decisions about his health and welfare. But Ms X’s views and opinions on Mr Y’s health and welfare would be acknowledged although the decisions would be made by Mr Y in consultation with relevant professionals.
23. The social worker visited Mr Y to discuss the reassessment. The social worker reported Mr Y raised concerns about Ms X’s influence on his decisions. Mr Y told the social worker he occasionally enjoys a small glass of alcohol, was aware of his medication needs and felt he was safe. The social worker reported Mr Y was unaware of how much money he had in his accounts and Ms X was his deputy for finance and property.
24. The social worker arranged a reassessment of Mr Y in August 2021 at the care home. Ms X was invited but declined to attend due to her relationship with care home staff. The social worker has agreed to seek her views in a separate review meeting. In commenting on the draft decision Ms X confirms she submitted her written comments in advance of the meeting.

Management of Mr Y’s finances

25. The Council told Ms X it would investigate Ms X’s concerns and raise it as a safeguarding referral. Authority B would consider the referral as the host authority.
26. The safeguarding investigation referred to a previous investigation into concerns about Mr Y’s finances. This had been closed as it found the care provider correctly supported Mr Y.
27. On this occasion the safeguarding investigation went through the receipts highlighted by Ms X. It did not find evidence to support the allegation of financial abuse. The care provider agreed to improve its financial procedures to provide a more detailed ledger making it easier to cross reference receipts. The Council has since carried out audits of expenditure and confirms the care home has complied with the request.
28. The Council has arranged for the social worker and a mental health practitioner to carry out a mental capacity assessment on Mr Y’s ability to manage his finances. This is because the Council is satisfied Mr Y can manage smaller amount of money but not larger amounts. If the assessment finds Mr Y lacks capacity, the Council intends to refer him to its Ealing Client Affairs Team to manage Mr Y’s finances for him. This will be after discussing the matter with Ms X as Mr Y’s financial deputy because she has previously mentioned surrendering the role.

Drinking alcohol

29. The Council contacted Mr Y’s GP in response to Ms X’s complaint to seek confirmation Mr Y could drink alcohol with his medication. The GP confirmed it would not affect the medication if Mr X remained within the government’s recommended limits. The GP later confirmed to Ms X this was generic advice rather than for Mr Y’s particular circumstances.
30. The safeguarding investigation also looked at the issue of Mr Y being given alcohol and his spending on this. The investigation found Mr Y liked to have an occasional drink. It noted the care home staff advise Mr Y not to, but he has capacity to decide if he wants a drink with a meal. Mr Y did not want the matter taking any further.
31. The investigation found Mr Y chose to buy the alcohol himself even though he knew he should not be doing so. But there was no financial abuse or neglect to warrant a safeguarding referral. Authority B closed the case.
32. The Council has subsequently sought further clarification from Mr Y’s GP surgery about Mr Y drinking alcohol. A GP confirmed Mr Y reported he occasionally has an alcoholic drink and knows he should not mix it with his medication. If Mr X had too much alcohol it would impact on his medication and health, but an occasional drink was not harmful.
33. The Council has arranged for the mental capacity assessment to also consider Mr Y’s ability to make an informed choice about drinking alcohol and taking medication. This is because Mr Y has also said he has two large drinks at a time. The Council remains concerned about the interaction of alcohol and medication for Mr Y and will continue to pursue the issue with Mr Y’s GP for further advice and support Mr Y may need on this.

Support and activities being provided to Mr Y

34. The Council confirms that before the March 2020 lockdown Mr Y regularly attended swimming classes once a week supported by a care worker. This was followed by a coffee in a local café. The care home also encouraged Mr Y to attend classes at a nearby local Adult Education College.
35. During the lockdown Mr Y received 1 to 1 support in the care home to do pottery, drawing and art. When the lockdown restrictions eased the care home arranged for Mr Y to access the community through trips to the seaside, New Forest, and local towns. The care home confirms it gives Mr Y every opportunity and encouragement to join in activities with staff and other residents. And Mr Y often participates. The care home says it can only encourage Mr Y and cannot make him join in. It says Mr Y has joined an ‘over 60’s’ social group who go on outings in the area.

Mr Y’s communication with his family

36. The Council confirms Mr Y’s laptop and Alexa device are charged in his room. Mr Y has not reported any issues about his devices to either his advocate or the social worker and they have not observed anything when they visit him. The Council says neither the social worker or Mr Y’s advocate have concerns about the care home supporting Mr Y to contact Ms X or Mr Z.
37. The Council says Ms X purchased a laptop for Mr Y to use rather than a telephone so she could contact him via a messaging application and has recently bought him a mobile phone.
38. The Council investigated the particular incident Ms X referred to about contacting Mr Y. It reports the incident happened when Ms X scheduled a chat with Mr Y via his laptop. A member of staff set up the call but unfortunately, they were late in to work. The care home manager tried to set the call up without the staff member but found the laptop was password protected. Mr Y was unaware of the password and the one listed in his password book did not work. The care manager called Ms X on her mobile to explain and carry out a video call between Ms X and Mr Y. The care manager reports Ms X was unhappy with this which upset Mr Y, so the call ended. When the staff member arrived, they sorted out the laptop password to enable Mr Y to use the laptop.
39. In commenting on the draft decision Ms X disagrees with the care home’s account of the incident. Ms X says she made a prior arrangement for Mr Y to call her with the support of staff, but Mr Y did not make the call at the agreed time. Ms X telephoned to find out why and was told the member of staff was not there. Ms X says she ended the call as she was being talked over.

My assessment

40. The Council accepts it has not carried out a reassessment of Mr Y’s needs since August 2019. This is over the 12 months required by the regulations so there is fault by the Council. Ms X has been put to time and trouble in pursuing the Council to reassess Mr Y. So, I consider the Council should apologise to Ms X for her time and trouble in pursing her complaint about the matter. It is for Mr Y to pursue his own complaint about the matter should he wish to do so.
41. The Council also explained the support provided to Mr Y before and during lockdown due to the COVID-19 pandemic in March 2020. Any issues about this are for Mr Y to pursue in his own right.
42. Mr Y is currently deemed to have capacity to make decisions about drinking alcohol. The safeguarding investigation found it was Mr Y’s choice. So, I do not find fault by Council in the care home allowing Mr Y to have alcohol as it is his choice. Ms X has LPA for Mr Y for property and finance but not for health and well-being. So, while Ms X can have her views on Mr Y’s health and well-being considered, any decisions will be for Mr Y and other professionals to make.
43. The Council referred the concerns about Mr Y drinking alcohol to a safeguarding investigation by Authority B who has considered the matter. I do not consider I can add anything to the investigations already carried out by the Council. In addition, the Council is investigating further the issue with alcohol and impact on Mr Y’s medication. It is carrying out a mental capacity assessment to see if Mr Y can make informed choices about this. The Council will provide any support to Mr Y at the outcome of the assessment if needed. Because of this I do not consider any further investigation will lead to a different outcome.
44. I do not consider there has been fault by the Council when responding to Ms X’s concerns about unexplained expenditure. The evidence shows the Council referred Ms X’s concerns to Authority B for a safeguarding investigation in case of financial abuse. The safeguarding concern was not upheld although it has resulted in some improvements to the care home’s financial practices.
45. The Council is considering the matter further and assessing Mr Y’s mental capacity to manage his finances. The Council will take further action depending on the outcome after discussions with Ms X. I do not consider I can add anything to the investigations already carried by the Council or achieve a different outcome for Ms X.
46. The evidence shows the Council investigated Ms X’s concerns the care home were not helping Mr Y to communicate with his family. The Council found no concerns the care home was not supporting Mr Y to do so. It says he has a laptop and mobile phone bought for him by Ms X.
47. The Council has provided an explanation for the incident Ms X refers to. I am aware Ms X’s report of the event is different to that provided by the Council. I do not consider I can establish with any certainty what happened due to the time that has passed. And so, I do not consider any further investigation will lead to a different outcome. In addition, the situation with the password has been resolved and I have not seen any further incidents of communication difficulties with calls to Mr Y being reported.

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Agreed action

48. Within one month of the date of my final decision the Council will send a written apology to Ms X. This is for her time and trouble in pursuing a complaint about the lack of a current care plan for Mr Y.

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Final decision

49. I am completing my investigation. I have found fault by the Council as it failed to carry out a reassessment of Mr Y’s care needs within the 12 months required by the regulations. I have recommended a suitable remedy for the injustice caused to Ms X.

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Parts of the complaint that I did not investigate

50. I have not investigated Ms X’s complaint about the care home manager’s refusal to allow her to see Mr Y to sign a consent form to pursue a complaint to us. This is because Ms X has made a formal complaint to the Council about the matter, and it is being considered. So, I consider this part of Ms X’s complaint to us is premature and she needs to complete the Council’s formal complaints procedure first.

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Investigator's decision on behalf of the Ombudsman