Summary: Mr C complained about the way the Council, and the care provider it commissioned, responded to a deterioration of his son’s behaviour, which resulted in increasing incidents. We found the Council was at fault for a delay in its response, for which it has agreed to apologise to Mr C and his son. It has also agreed to review the way in which it prioritises and allocates new cases to its assessors.

The complaint

1. The complainant, whom I shall call Mr C, complained to us on behalf of his son, whom I hall call Mr X. Mr C complained the Council should have moved his son to another accommodation and care provider, when his behaviour deteriorated and incidents increased. However, Mr C says it failed to do this, which resulted in his son being sectioned for 10 days under the Mental Health Act, in October 2020.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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

5. I considered the information I received from Mr C and the Council. I shared a copy of my draft decision statement with Mr C and the Council and considered any comments I received, before I made my final decision.

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What I found

6. Mr C’s son moved into a residential home with other service users who also have challenging behaviour and a learning disability. The placement was arranged by the Council in 2017. Incidents were becoming more common and worrying and Mr C’s son was becoming angry with people supporting him. Mr C says he told the Council he felt the current placement was not able to manage his son’s need to have clear boundaries and activities to keep him busy. As such, he wanted the Council to move his son to other accommodation with a different care provider. Mr C says the Council failed to do this until it was too late, and his son was sectioned for two weeks under the Mental Health Act. He says this would have been avoided if the Council had acted promptly.
7. I focussed my investigation on what happened from June 2020 onwards, as this is when the increase in incidents happened. The focus of the investigation was on assessing how the care provider and the Council responded to this.
8. Mr X’s most recent reassessment of his needs was from January 2019. It said that:
• Mr X is a young man who needs structured support / activities. He needs to know what he is doing on a day-to-day basis and be able to look forward to upcoming events. He enjoys group activities and has been supported to trips with others.
• He likes living at the current home. He is a really nice man, a lot of fun and gets on with everyone.
• Mr X has a behavioural support plan. The Behaviour Team have reviewed their assessments and have nothing further to add to what the home is already doing, so they have discharged Mr X from their service.
• He needs access to 1:1 support for activities in the community.
• He will become heightened at times, but staff feel they know him and are able to manage this behaviour without it becoming a crisis.
9. The care provider said the behaviour care plan, which sets out how to manage Mr X’s behaviour, was seen by Mr C and the Behavioural Services, who both said it was excellent.
10. An update provided by the care provider in April 2020 said that Mr X was doing well. The care provider has since stated that the national restrictions imposed from March 2020, meant that significant changes had to be made to Mr X’s routine and activity planner. It says these changes may have had an impact on his wellbeing and, in turn, on his behaviour as incidents increased only then. There were also changes to his contact arrangements with his family, which may also have had an impact on his behaviour.
11. A further update from the care provider in early June 2020 said that Mr X was doing well and coping without going to the cinema and eating out. Mr X was getting 8 hours of 1:1 support a day with personal care, accompanying him when he is accessing the community and doing in house activities.
12. However, the number of incidents increased significantly, from June 2020 onwards. I reviewed the incident reports, which were detailed and included actions and learning points, as well as evidence of staff being debriefed about them. Furthermore, the care provider kept the Council’s safeguarding team informed and updated.
13. Four incidents happened during June 2020. In response to the increase, the care provider contacted Mr X’s GP on 7 July to ask for a review of his medication and ensure there were no physical health issues that were impacting on him. Mr X was subsequently referred to psychology, as his medication was prescribed by a psychologist. The review resulted in a prescription for PRN to assist Mr X during periods of heightened behaviour.
14. The care provider also contacted the Council’s local Neighbourhood Team early July 2020 to:
• Discuss the increased number of incidents. The provider said it had, as a result, increased Mr X’s 1:1 support to 14 hours a day and asked the Council to increase its funding accordingly. The care provider continued to chase this up with the Council. However, it took more than three months before the Council started to provide the extra funds to cover this.
• Ask for a reassessment of Mr X’s needs to consider what factors might be impacting on his presentation, and how best to address these issues. However, it took until mid-August (one month) before the Council allocated the case to a social worker. The Council did not carry out the requested care review before Mr X was sectioned more than three months later at the end of October.
15. Mr C called the Council the same day to express his concerns and say he did not know whether his son’s current placement was the right place for him. He was concerned about his son’s escalating behaviour and said he had been sectioned in the past due to uncontrollable behaviours. The Council told him that it would try to make his son’s current placement work. Mr C also said he felt his son was not kept busy enough with activities during the day.
16. I reviewed Mr X’s weekly activity planner from July 2020. It did not show the care provider organised a lot of (varied) activities for Mr X to keep him busy and occupied, and his days more structured. Morning activities consisted only of cleaning the bedroom. An afternoon activity could either be: listen to music, go out for a drive or walk to the shop. It did not involve indoor activities Mr X could do with the (1:1) care worker. In the evening cooking was mentioned twice a week and another inhouse activity on 3 other nights. There was only one activity on Sunday, namely film/PS4.
17. In addition to Mr C’s regular concerns, Mr X’s mother also contacted the Council in July 2020 to say she felt her son was not in an appropriate placement.
18. The manager of the care provider told the Council at the end of July 2020, that he felt the medication was effective with managing Mr X’s behaviour, when needed. He said the GP had referred Mr X to a Psychiatrist, and the home had referred him to the NHS Community Learning Disability Team for a reassessment by its Behavioural Services Team. Mr X was put on their waiting list on 23 July. However, it took until the end of October (3 months) before a worker of that team was allocated.
19. Incidents continued during August 2020, including Mr X attacking staff members. The Council discussed these with the care provider, who said that staff was trained to manage these, and he was under constant 1:1 supervision.
20. The Council allocated Mr X’s case to a social worker mid-August 2020, one month after the Council identified the need for this. The Council said this delay was due to staff vacancies, recruiting agency workers to fill these, and changes required due to COVID-19 and Hospital Discharge Service Requirements. However, the Council has acknowledged that, due to the complexity of the case and the associated risks, the case should have been allocated to a dedicated social worker sooner.
21. The care provider reported to the Council mid-August 2020, that Mr X was on new medication that had dramatically reduced his behaviours.
22. However, the care provider contacted the social worker at the start of October 2020, to report that Mr X had to be restrained due to him lashing out at staff. The social worker established there was no Deprivation of Liberty Safeguards (DOLS) in place (for restraining) and referred Mr X’s case to the DOLS team. The DOLS team subsequently said it would be for the care home to request a DOLS assessment.
23. A NHS Community Learning Disability Nurse from the Complex Behaviour team was allocated to Mr X’s case at the start of October 2020. However, the nurse did not look into Mr X’s case until three weeks later.
24. Mr X’s allocated social worker left the team in early October 2020, and the Council had to reallocate it to an agency worker.
25. The DOLs assessment that took subsequently place said that Mr X’s staff were all trained in ARC (Assessed, Respond and Care) and Mr X had an incident crisis management plan (ICMP) in place. Triggers for his behaviour were: lack of structure, routine, over-stimulation, a lack of space, privacy, planned visits from family due to excitement and waiting for food or activities.
26. After a very serious incident on 22 October 2020, in which other residents had been attacked / involved, the care provider told the Council it had no other option but to give a week’s notice to Mr X to leave.
27. The Council subsequently urgently tried to identify alternative care accommodation. It identified a suitable one with a vacancy, but this did not materialise at the last moment, because there was an outbreak of Covid-19 at that scheme.
28. The manager of the care provider told the Council they were happy to extend Mr X’s placement until 6 November, to give the Council more time. However, it said they would have to send Mr X on a holiday with staff for the final 5 days. However, a further incident happened soon after and the care provider had to immediately take Mr X to a hotel to stay.
29. While the Council was looking for a new placement, the care provider had to support Mr X away from the home, to protect other vulnerable residents. However, during this respite holiday Mr X deteriorated and tried to attack a member of the public with her child. As such, there was no alternative for staff but to call the Police and have him reviewed under the Mental Health Act.
30. Mr X was detained under the Mental Health Act. However, since then, he has been very settled. Hospital staff reported that he did not need any further treatment and he was discharged.
31. Mr X went to live in a self-contained flat within a locked 24-hour residential setting. The new placement is said to be very structured and have staff that are highly trained in response techniques, restraint (if needed), de-escalation techniques and challenging behaviour in general.
32. Mr X’s behaviour is reported to have much improved, with him becoming very settled and he has been doing well. The admission immediately mitigated the risks and his behaviour instantly calmed. His aggressive behaviour and unmanageability quickly subsided.
33. The Council told me that:
• It should have taken further measures at the time. It said: due to the escalating behaviour and the potential for hospital admission, it should have referred Mr X to the Dynamic Support Register/Panel. This would have facilitated a multi-agency approach to try and prevent Mr X’s admission to hospital. Such a referral is made by a social worker or a Learning Disability Nurse. Mr X could then have been offered a Community Care and Treatment Review to see whether he was safe and in the right place.
• The Council has taken measures to learn from this situation. Information has been shared with managers and staff involved with the case as well as the wider management team on the importance of understanding the purpose of the Dynamic Risk Panel and when and how to refer. The lead professional who oversees the DSR attended the Neighbourhood Managers Meeting in August 2021 and delivered a presentation to inform them of the purpose and process and also included copies of tools required in order to refer. Managers have been advised to share the presentation in their team meetings with staff to ensure that all staff are aware and understand the importance.
• From reviewing this case the Council has identified some learning and areas for improvement. These will be implemented following work on the required proposals, the timescale of which has not yet been determined but the Council will use their best endeavours to complete this work as soon as possible by the Services concerned.
• The Council wish to offer a further apology to Mr C and his son for the delays they experienced and any distress and inconvenience they may have experienced as a result. The Council will also provide a remedy of £300 to reflect the time and trouble in dealing with this complaint.

Analysis

34. I found that the care provider responded appropriately to the increase in incidents, by independently doubling 1:1 support, contacting the Council to ask for a care review, contacting the GP to ask for a (medication) review and ask the NHS Behavioural Team to become involved.
35. However, there was a lack of urgency by the Council to deal with this case, which the Council has acknowledged. This happened despite Mr X’s parents continuously raising their concerns and the care provider continuously asking for more funding. There was a delay in allocating the case to a social worker, and in subsequently carrying out a care review (which did not take place subsequently). Furthermore, the Council failed to refer the case to the Dynamic Risk Panel to ensure there would be a multi-agency response/approach. The Council has acknowledged that a more appropriate response would likely have avoided Mr X’s behaviour from deteriorating to the point where an admission to hospital was the only solution. In my view, it could also have resulted in the move to another setting taking place earlier.
36. The Council has been taking several actions already to address the above shortcomings.
37. While I did not find fault with the way the care provider responded to the increase in incidents, I did find there was insufficient evidence to conclude the care provider did enough to provide activities to Mr X, and through that more structure to his days. Mr X had 14 hours of 1:1 support from July 2020. However, the activity planner did not include a sufficient amount of varied, interactive, regular, indoor and outdoor activities, throughout the day and the week. This is fault. When a council commissions a care provider to provide services on its behalf, it remains responsible for those services and for the actions of the provider providing them. So, although I found fault with the care provider, it is the Council who should apologise for this.

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Agreed actions

38. I recommended that, within four weeks of my decision, the Council should:
• Apologise to Mr X for the delays identified above, as well as the shortfalls with the activities he received. It should also pay him £400.
• Apologise to Mr C for the distress he experienced during this time, which could have been significantly less if the Council had acted appropriately, and the situation had therefore been better managed. The £300 it has offered to him already as a remedy is a sufficient amount.
39. I recommended that, within eight weeks of my decision, the Council should:
• Review the way in which Neighbourhood Teams prioritise cases and determine when a social worker should be allocated immediately.
• Review the process through which social workers decide / prioritise how urgent it is to (subsequently) carry out a care review, once a case has been allocated to them, and how this is monitored by their line manager.
• Organise a meeting with the NHS Community Learning Disability Team and its Behavioural Services Team to discuss lessons learned from this case, determine how they prioritise cases and agree on actions to avoid a reoccurrence
40. The Council has told me it has accepted my recommendations.

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Final decision

41. For reasons explained above, I decided to uphold the complaint.
42. I am satisfied with the actions the Council will carry out to remedy this and have therefore decided to complete my investigation and close the case.

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Investigator's decision on behalf of the Ombudsman