Summary: X complained about the way the Council managed their relative, Y’s, care. There was no fault in the way the Council assessed Y’s capacity or prepared Y for a move to supported living. The Council was at fault as Y received poor care at his Council-commissioned residential placement which caused Y and X distress. The Council investigated and upheld there was poor care but has not offered an appropriate remedy. The Council has agreed to apologise to X and Y and make a financial remedy to acknowledge the poor care and distress caused.

The complaint

1. X complained about the way the Council managed their relative, Y’s, care. They complained the Council:
• Did not consult them about a potential move for Y from residential care to supported living.
• Put Y’s safety at risk by attempting to move them to a supported living placement without providing adequate life skills training.
• Abused the mental capacity act framework by considering Y had capacity to decide where they wanted to live, but then requesting a mental capacity assessment once the Council felt Y had made the wrong choice.
• Accepted it moved Y’s belongings without consent but has not offered appropriate compensation for the distress caused.
• Did not appropriately investigate safeguarding concerns they raised in 2020 about Y’s residential care placement.
• Raised unfounded safeguarding concerns about their ability to care for Y and harassed them both unnecessarily once Y had moved in with X.
• Refused to investigate their concerns about the external agency acting on the Council’s behalf as Y’s financial appointee.

They say the Council’s actions have caused them distress and upset.

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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 read X’s complaint statement to us.
6. I made enquiries of the Council and considered information it sent me.
7. X and the Council had the opportunity to comment on the draft decision. I considered all comment received before making a final decision.

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What I found

Legal and administrative background

The provision of care and support

8. The Care Act 2014 requires councils to carry out an assessment for any adult with an appearance of need for care and support. If a council decides a person has eligible needs, it must set out how it is going to meet these needs in a care and support plan.
9. The Health and Social Care Act 2008 (regulated activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve.
10. The fundamental standards say the care and treatment of service users must be appropriate, meet the person’s needs and reflect their preferences. The care provider must assess the person’s needs and preferences and provide appropriate care and treatment to meet these needs.

Supported living schemes

11. Supported living schemes are designed to allow people with a range of support needs to live in their own home. The person has their own tenancy but will have support in their home to meet their needs whilst maximising their independence.

The Mental Capacity Act 2005

12. The Mental Capacity Act 2005 is the framework for the assessment of a person’s mental capacity to make decisions for themselves. The Act makes an assumption that an adult has full capacity to make decisions unless it can be shown otherwise. An assessment of capacity is specific to the decision to be made at a particular time.

Adult safeguarding procedures

13. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean they cannot protect themselves.
14. The Council’s safeguarding policy says when a safeguarding alert is received, the enquiry should always start with gaining the views and wishes of the adult. If the Council decides further investigation is needed, these enquiries should focus on establishing the facts. It may then decide to hold a meeting to discuss the investigation outcomes and decided what actions are required. The policy says the Council should ensure the chair of the safeguarding meeting is an appropriate person. It does not specify they must be independent from the Council.

Money management support

15. Coventry Council commissions an external agency (agency A) to provide money management support on its behalf, for individuals who are unable to manage their financial affairs themselves because of disability or because they lack mental capacity. The Council says any complaints about the service should be made to agency A, in the first instance.
16. Agency A has a 3-stage complaints’ procedure:
• Stage 1 informal stage – a complaint should initially be raised with the person or manager directly providing the service. Complaints are not formally logged at this stage but are shared within teams to ensure lessons learnt are implemented.
• Stage 2 – formal investigation with a formal written response to the complainant
• Stage 3 – appeal. A senior manager or trustee will be asked to review the complaint
17. If a person remained dissatisfied, the Council said it would take steps to review agency A’s investigation and provide a formal Council response to the complaint.

What happened

18. X’s relative, Y, has Autism and a learning disability. Y has lived in a Council commissioned residential care home, care home B, since becoming an adult. X does not live near Y but would visit Y and have telephone contact. The frequency of their contact has varied over the years. Y lacks mental capacity to manage their finances and, at the time of X’s complaint, received money management support from an appointee provided by agency A.
19. In November 2019, the Council re-assessed Y’s care needs and reviewed their support plan. It allocated them an advocate to support them during the process. The assessment said Y had capacity to choose where they should live and about family contact. It raised concerns about Y’s capacity to keep themselves safe when stressed or under pressure e.g. in the event of a fire alarm. It decided it needed to complete further assessment with Y to decide what support Y may need in these situations.
20. The assessment also reviewed Y’s residential placement. It concluded a supported living placement would still meet Y’s needs but would be less restrictive and allow Y more independence. They discussed the option of supported living with Y who agreed they would like to explore this option further.
21. As part of the assessment, the Council also contacted X. X expressed dissatisfaction with the care provided to Y by care home B. X said they would ideally like Y to live with them, but this was not possible. They said Y needed support to develop independence and to be taught independent living skills. They said Y needed a supported living placement, not residential care.
22. Between January and March 2020, X and Y did not have contact.
23. In February 2020, Y visited a supportive living placement (placement C). They asked questions about what it would be like and what they would be able to do. They expressed an interest in finding out more.
24. The Council completed a mental capacity assessment with Y to determine whether they had capacity to keep themselves safe in the event of a fire alarm. It concluded that Y had capacity to respond appropriately to a fire alarm, understood the risks and what they needed to do to keep themself safe in case of fire.
25. In March 2020, Y had a second visit to placement C. They told the Council they wanted to live there.
26. In April 2020, Y asked the Council to contact X. They said they had not heard from X in a while and were concerned about them due to the COVID-19 pandemic. The Council rang X and left a message explaining that Y had asked them to make contact and asked X to get in touch.
27. During April, X and Y resumed contact via telephone and video call.
28. In May 2020, X raised safeguarding concerns with the Police about the care Y received at care home B. The Police referred the matter to the Council. The Council considered the information and decided to start an investigation.
29. X contacted the Council. They said they did not normally visit Y in the first few months of the year and Y knew this. They told the Council of their safeguarding concerns about the care Y received at care home B. They said Y would benefit significantly from being in their own flat with on-site carer support.
30. The Council responded to X to say they had discussed with Y the safeguarding concerns X had raised. It told X that Y’s advocate would also be discussing the issues further with Y and it had raised the issues with the Council commissioning team who were liaising with the care home manager.
31. The Council contacted X again. It said Y had told the Council they wanted to move to supported living and they were currently waiting for placement C to assess Y and agree how they could meet their needs. It also said Y had told the Council they wanted to make their own choices and at the proposed placement Y would be supported to develop independent living skills in all areas of their life. It said the safeguarding investigation was ongoing.
32. In mid-May, Y made a formal complaint about the care they received at care home B. They complained about several aspect of their care, including that staff threatened to take away their belongings as a way of controlling their behaviour.
33. A few days later during an evening, Y overheard a staff member saying they did not like X. Y was upset by this and told the staff member to stop talking about their relative in this way. The staff member had a chopping knife in their hand at the time, and when they turned to talk to Y, pointed the knife at them. This frightened Y and made Y feel unsafe.
34. Y returned to their room and contacted X and told them about the incident. X was concerned about Y’s immediate safety and called the Police. The Police initially considered X’s report a nuisance call and would not attend care home B. X continued to be concerned about Y’s immediate safety and agreed with Y that they would come and collect them from care home B. X tried to contact Y’s social worker but they did not answer, so X rang the Council’s duty team and told them what they planned to do. X arrived at care home B at approximately 2am the following morning and took Y home with them.
35. Care staff tried to contact their manager when Y left care home B but did not get a response. Care staff rang the Police 4 hours later to report Y as a missing person. Police met with X and Y the next morning to complete a “safe and well” check. They confirmed Y’s immediate safety was not at risk.
36. That day, the Council received three safeguarding alerts from care home B.
• The first related to the incident with the knife.
• The second to Y’s unplanned departure from care home B in the middle of the night.
• The third expressed concerns that Y’s behaviour had changed since they resumed contact with X and that Y was being unduly influenced and coerced by X.
37. Y also complained to the Care Quality Commission about the care they received at care home B, who referred their complaint to the Council for a safeguarding investigation.
38. The Council spoke to Y who confirmed they were at X’s home. Y told the Council they wanted to stay with X until they could move to placement C. A date for the move to placement C was set for early June. Y agreed to daily video or audio calls with placement C before the move to help develop their relationship and ensure they had opportunity to ask any questions before the move.
39. Placement C completed their assessment of Y’s needs over a video call. They sent Y and X (with Y’s consent) a summary of the support they would provide to Y to help Y develop independent living skills and promote Y’s independence. They also provided information on how the move to supported living would affect Y’s finances. Y and X also spoke to Y’s financial appointee at agency A about the impact of the move on Y’s finances.
40. At the end of May, Placement C and agency A expressed concerns to the Council that they had noticed changes in Y’s behaviour. They were concerned X was increasingly speaking for Y and unduly influencing Y’s behaviour and decision making.
41. Y’s advocate told the Council Y had several questions about the move. The Council wrote to Y to respond to their concerns. It provided information for Y on what support they would receive at placement C, when the move would take place, and responded to queries about finances and travel training.
42. X complained to agency A about the money management service provided to Y. Agency A acknowledged the complaint and began a formal investigation.
43. The arranged date for Y to move to placement C passed, but Y did not move in. Y told the Council they no longer wanted to move to placement C and wanted to stay living with X.
44. Due to the COVID-19 pandemic, the Council could not visit Y at X’s address. The Council raised a safeguarding alert with X’s local council asking it to review Y’s welfare and X’s ability meet Y’s needs. It also asked it to complete a capacity assessment with Y. It said based on its own observations and reports received from other parties, it had concerns that X was exerting pressure on Y, which may be affecting Y’s capacity to choose where they should live. It said it needed to be sure Y’s voice was being heard and X was not unduly influencing Y’s decision.
45. X’s local council completed a capacity assessment with Y and concluded Y had capacity to decide where they should live. They investigated the Council’s safeguarding concerns about X but were satisfied these concerns were unsubstantiated and closed the case. Y confirmed they wanted to remain living with X.
46. The Council accepted Y’s decision and completed a case transfer to adult care services in their area.
47. X raised a further safeguarding alert with the Council. They said a former staff member at care home B had contacted them asking if they could meet with Y. They said this information about where Y was living could only have come from care home B staff and was a breach of their personal information.
48. X complained to agency A and the Council about the financial appointeeship service provided to Y by agency A. The Council told X to complain directly to agency A if they wanted to take their concerns further.
49. X also complained to the Council about the care Y received at care home B, how the Council planned and managed Y’s move to alternative accommodation, that the Council had wrongly moved Y’s belongings and that as soon as Y had made the decision to remain with X, the Council unfairly raised a safeguarding alert against them.
50. In July 2020, agency A sent X a formal response to their complaint. It advised X to write to the chair of trustees if they remained dissatisfied with the outcome.
51. The Council investigated the safeguarding alerts against care home B between June and August 2020. This included visiting care home B to review care home records and interview staff. As there were a number of allegations, it decided to convene a safeguarding meeting in September 2020 to discuss the outcome of its investigations. This meeting was chaired by a team manager. The Council invited X and Y but they declined to attend as they said the Council had refused their request for the meeting chair to be independent from the Council. The Council also invited Y’s advocate but Y did not consent for them to attend. The safeguarding meeting upheld that:

• Care home B staff did not always treat Y with respect and inappropriately threatened to take Y’s belongings as a way of controlling their behaviour. This behaviour was not person-centred or age-appropriate care.
• A staff member did turn to talk to Y whilst holding a knife and did not consider the impact this action would have on Y. This amounted to emotional and psychological abuse.
• Staff did act inappropriately by talking about X in a communal area. This amounted to emotional and psychological abuse.
• Staff did not follow the correct procedures on the night Y left care home B with X. This amounted to neglect.
• Staff did breach Y’s confidentiality by disclosing their current living arrangements to former staff.

52. The Council concluded there was no immediate risk of harm to Y, as they no longer lived at care home B. It recommended several service improvements including immediate and ongoing staff re-training and a review of care home B’s policies. It decided its commissioning team would continue to closely monitor the service provided by care home B and that it would consider further improvement actions if required.
53. The Council responded to X’s complaint. It accepted it should not have moved Y’s belongings in June 2020, apologised to Y and refunded Y the cost of this. It did not uphold the other aspects of their complaint. X remained dissatisfied and brought their complaint to us.
54. In its response to our enquiries, the Council said it advised X to complain directly to agency A if they were dissatisfied with its services. It said agency A provided a formal response to their complaint in July 2020. It said the Council did not hear anything further, so presumed X was satisfied with agency A’s response.

Analysis

How the Council consulted with X about a proposed move for Y to supported living

55. When the Council reviewed Y’s care needs in November 2019, it contacted X as part of this assessment. The assessment recorded that X agreed supported living would be a more appropriate environment for Y as it would promote their independence. The Council appropriately gathered X’s views as part of its assessment.
56. The Council acted appropriately by ensuring Y had an independent advocate to support them whilst considering their housing options. X was not in contact with Y in early 2020, but when Y asked the Council to contact X on their behalf in April 2020, the Council did this. The Council then provided information to X about the proposed move, with Y’s consent. The Council did consult with X about a potential move to supported living and involved them once X and Y had resumed contact in April 2020. The Council was not at fault.

How the Council prepared Y for a move to supported living

57. X says the Council did not appropriately prepare Y for the move to placement C, but the evidence does not support this. The evidence shows:

• The Council arranged two visits with Y to placement C in February and March 2020.
• Placement C completed an assessment of Y’s needs in May 2020. It gave X and Y a full breakdown of the support it would provide Y to help them develop their independent living skills.
• There was daily video call contact with Y in the lead up to the planned moving date, to build a relationship with Y and ensure they had opportunity to ask any questions.
• Evidence of emails between the Council and Y answering Y’s questions and making plans for the move between April and June 2020.

The evidence shows the Council did appropriately prepare Y for the proposed move to placement C. The Council is not at fault.

Whether the Council abused the Mental Capacity Act framework

58. The Care Act assessment completed in November 2019 said Y had capacity to decide where they should live and about family contact. However, it did say Y’s capacity may fluctuate. It completed a further capacity assessment in February 2020 as part of its review of fire safety procedures for Y at care home B.
59. When Y told the Council they did not want to move to placement C in June 2020 as planned, the Council had concerns as to whether Y still had capacity to make this decision. These concerns were based on:

• Y’s sudden change of view being inconsistent with their previous position that they wanted to move to placement C as soon as possible
• Information received from placement C and agency A, who had expressed concerns about changes in Y’s behaviour since moving to stay with X
• The fact that the Council had not had visual contact with Y for some time or any private communication with Y since they moved in with X.

The mental capacity act says decisions are time as well as subject specific. The Council reviewed Y’s situation in June 2020 and based on this review, decided it should reassess Y’s capacity to ensure they were still able to make the decision about where they should live. It considered the situation appropriately and was not at fault.

Consideration of the remedy provided by the Council for moving Y’s belongings without consent.

60. The Council upheld that it wrongly moved Y’s belongings to placement C in June 2020. It accepted this in its complaint response, apologised and has refunded Y the costs of this. This is an appropriate remedy for this part of the complaint.

The adequacy of the Council’s safeguarding investigation into the care Y received at care home B.

61. When X raised safeguarding concerns about care home B, the Council acted appropriately by starting an investigation. It spoke with Y about the concerns and decided the allegations needed further investigation. It interviewed care home B staff, reviewed care records and arranged a safeguarding meeting in September 2020 to discuss the outcomes of the investigation. The meeting chair was a team manager, who was an appropriate person to chair the meeting. The meeting upheld several allegations, but concluded there was no immediate risk to Y as they no longer lived at care home B. It made several recommendations related to staff training and ongoing monitoring by the Council’s commissioning service.
62. The upheld allegations about the care Y received at care home B amount to poor care and are a breach of the fundamental standards. This is fault. The safeguarding meeting upheld that the findings amounted to neglect and emotional and psychological abuse. The poor care is likely to have caused Y considerable distress. The Council took action to improve the standards of care at care home B and I am satisfied the recommendations made were appropriate. However, it did not offer a remedy to Y for the poor care or for the distress caused to them. The poor care provided to Y is also likely to have caused X distress and they have gone to considerable time and trouble raising this complaint. I have recommended an appropriate remedy below.

The appropriateness of the Council’s request for regular contact with Y once they had moved to live with X in May 2020 and the safeguarding alert it raised about X

63. In May 2020, the Council was working with Y and placement C to arrange Y’s move to supported living. Y then left care home B in the middle of the night to move in with X. Although X and Y have explained their reasons for this, the Council was concerned about the sudden and unplanned nature of this move, and the impact it would have on Y. The Council had a duty of care towards Y and, due to the COVID-19 pandemic and the location of X’s home, could not visit Y to review their welfare. The Council appropriately considered the circumstances and decided it needed daily contact with Y to continue planning the move to placement C and to ensure Y’s welfare. The Council was not at fault.
64. When Y told the Council they did not want to move to placement C, the Council reviewed the situation. It decided that because of the sudden change in Y’s decision, the unplanned nature of the move to live with X and a lack of direct communication from Y, it needed to raise the alert to ensure Y’s welfare. It told X of the reasons for its actions. The Council considered the situation appropriately and its decision to raise a safeguarding alert with X’s local council was not fault.

X’s complaint about agency A

65. X complained to agency A in June 2020 and it provided a formal response in July 2020. It directed X to write to the chair of trustees for a review if they remained dissatisfied, in line with its procedure. I have seen no evidence X did this, nor told the Council they remained dissatisfied. As agency A investigated their complaint, provided a response and the Council did not hear further, it is reasonable for the Council to presume X was satisfied with the response received. The Council is not at fault for not investigating their complaint about agency A.

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Agreed action

66. Within one month of the final decision, the Council will:
• Write to X and Y to apologise to them for the poor care Y received at care home B;
67. Within two months of the final decision, the Council will:
• Pay Y £500 to acknowledge the distress caused to Y by the poor care.
• Pay X £200 to acknowledge the distress they were caused and time and trouble they have gone to bringing their complaint.

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Final decision

68. I have completed my investigation. I have found fault and the Council has agreed actions to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman