Summary: Mr X complained the Council excluded him from the care process for his brother, Mr Y, and that it failed to act on concerns he raised about his brother’s care and unnecessarily appointed an advocate for Mr Y. There was no fault in the way the Council responded to Mr X’s concerns or in the decision to appoint an independent advocate. The Council was at fault for not properly consulting Mr Y about who to involve in his review and for not completing the review in a person-centred way. The Council has agreed to apologise to Mr X for the frustration he was caused, pay Mr Y £200 to acknowledge the uncertainty caused by not properly involving him in the review and provide evidence it has issued reminders to staff to prevent a recurrence of the fault.

The complaint

1. Mr X complained the Council excluded him from the care process for his brother Mr Y and failed to act on concerns he raised regarding his brother’s care provider. Mr X also complained the Council unnecessarily appointed an independent advocate for his brother when he is able to represent him.
2. Mr X said this caused him distress and prevented him from supporting his brother. He wants the Council to investigate the behaviour of the care provider and allow him to contribute towards his brother’s care in future.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’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 have considered the information provided by Mr X and have discussed the complaint with him on the telephone. I have considered the Council’s response to my enquiries.
6. I gave Mr X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

7. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
8. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
9. Section 27 of the Care Act 2014 says councils should keep care and support plans under review. Government Care and Support Statutory Guidance says councils should review plans at least every twelve months. Councils must also conduct a review if an adult or a person acting on the adult’s behalf makes a reasonable request for one.

Background

10. Mr Y is autistic and lives in supported living accommodation. He has lived in the same setting for a number of years. At his care review in 2016 the Council noted Mr Y declined to have a family member present. It also noted that Mr Y “will often give the answer that he thinks you want to hear...he can respond to facial expression to gauge what he thinks is the right answer. He can give variable responses to the same questions in close succession”.

What happened

11. Mr X contacted the Council in late 2022 as he wanted to attend Mr Y’s next care review meeting.
12. In November 2022 the Council reviewed Mr Y’s care needs. The review noted Mr Y did not want to attend the review and was happy for the manager of the supported living scheme to speak for him. It noted Mr Y did not want any of his family involved in the review. The review noted Mr Y required the support of a staff member in the community. He continued to choose the activities he liked to do and no changes were required to the support he received.
13. Mr X contacted the Council again in December 2022 when he heard nothing further and was advised the review was held the previous month and Mr Y had not wanted him to be invited. Mr X was concerned Mr Y had been manipulated to say this. Mr X contacted the Council’s safeguarding team. He also referred to bruising he had noticed on Mr Y but could not say exactly when he had seen this.
14. The safeguarding team spoke with the care provider and was satisfied there was no evidence Mr Y was at risk of abuse or that abuse had occurred. It noted Mr X had not consented to the safeguarding referral so it took no further action and recommended a manager speak with him.
15. A Council officer called Mr X. The officer explained that if Mr Y consented to his attendance the Council was happy for Mr X to attend a review. During the call Mr X raised concerns about Mr Y’s diet, exercise, activities and meeting his religious needs. In a further call the following day another officer explained information could not be shared with Mr X without Mr Y’s permission. They reiterated that Mr X could attend a review if Mr Y consented.
16. Following the discussion, the Council appointed a social worker to ascertain Mr Y’s views. The social worker visited Mr Y twice in January 2023 and he confirmed he wanted Mr X to attend his reviews. The notes record he was happy and settled and did not raise any concerns about his care. The social worker was satisfied Mr Y had capacity to understand, retain, use and weigh up information. They had concerns that what he conveyed depended on who he was speaking to. They spoke with Mr Y about having an advocate who was someone neutral who could express Mr Y’s views and wishes. Mr Y agreed to this.
17. In February 2023 Mr X complained to the Council. He said he had a recording in which Mr Y said he wanted him to attend his review. He raised concerns about Mr Y’s diet, cleanliness, exercise, activities, bruising and attending church.
18. The social worker visited Mr Y again in March 2023 and discussed Mr X’s concerns with Mr Y. They also spoke with the care provider and checked Mr Y’s care records. They found Mr Y usually went out two days a week. Activities included going to the library, shopping, out for lunch and going to concerts. Mr Y suggested additional food he would like to eat and the care provider agreed to get these. He also said he would like to start cycling which the care provider agreed to arrange. The care provider said it offered Mr Y walks but he was not always keen to go. They also discussed Mr Y attending church and the care provider agreed to support him with this. Mr Y confirmed he did not have bruises and that he would tell staff if he hurt himself.
19. The Council responded to Mr X’s complaint in May 2023. It advised that his concerns about Mr Y’s care were dealt with by Mr Y’s social worker who spoke with Mr Y and the care provider.
20. The Council advised that the care provider had spoken with Mr Y who said he did not wish for his family to attend his review. The Council was aware of Mr X’s recording and said the social worker had spoken to Mr Y and he confirmed he wanted Mr X to attend his review. It had also discussed getting Mr Y an advocate as someone just for him to talk to so he could express his wishes without any anxiety about what may be the right answer for either the Council, his family or the care provider.
21. The Council arranged a review meeting in June 2023. This was earlier than planned due to Mr X’s concerns. Mr X was invited to attend on-line but on the day was unable to attend due to IT issues. Mr Y and his advocate attended the review. At the review the care provider confirmed Mr Y was now attending church and the care provider was exploring cycling. Mr Y preferred to do his own personal care and staff would prompt him to change clothes if they were soiled.
22. The social worker met with Mr X in early August to get his views. Mr X’s concerns included that Mr Y did not go out. The social worker confirmed Mr Y had some one to one hours and that these may need to be looked at further to ensure he could do all the activities he wanted to. Mr X was concerned about Mr Y’s diet and weight. The social worker confirmed Mr Y had choice over the meals he ate and that they were looking to explore cycling. They also confirmed Mr Y was now attending church.
23. In the review the social worker noted that in future, workers reviewing Mr Y’s care and support should, where possible, visit and meet him beforehand to increase the chance he would attend and feel comfortable to contribute to the meeting. It was also important that either adult social care or Mr Y’s advocate discussed with him before his review meeting who he wished to attend.
24. The social worker made an unannounced visit to Mr Y in August 2023. They noted he was dressed in comfortable clean, clothes and activities listed on the board included going to town, church and shopping. A care worker also advised Mr Y was due to go cycling the next day.

Response to our enquiries

25. In its response to my enquiries the Council explained it was now more aware of Mr Y’s tendency to say what he perceived others want to hear. Therefore, relying on the provider to discuss with him did not give him optimum opportunity to express his views. It also acknowledged that the review completed in November 2022 was not completed in a person-centred way as Mr Y did not attend. It said it has since revised its processes so a review will now only be completed without the person being present if it has been assessed as being in the person’s best interests. It said that as a result of this complaint it will remind relevant staff:
• to obtain consent to share information, at each review;
• to make enquiries into who the individual would like involved in their review, at each intervention; and
• that not including individuals in their review should only happen if a best interest decision has been made that involvement will cause significant distress.

Findings

26. The Council has acknowledged that it failed to properly ascertain Mr Y’s views on whether to involve Mr X in his reviews. This was fault. In addition, the Council conducted the November 2022 review without involving Mr Y. This was fault and meant Mr Y’s review was not conducted in a person-centred way. It also leaves uncertainty over whether Mr Y’s views were properly represented. The Council’s proposed actions to prevent a recurrence of this fault are appropriate. The council has agreed to provide us with evidence that it has carried these actions out.
27. After Mr X raised his concerns, the Council acted correctly and sought Mr Y’s views about involving Mr X in the review process. It then arranged an early review for June 2023 and sought to include Mr X. This was appropriate.
28. Mr X also raised concerns about the support provided to Mr Y by the care provider. The records show the social worker visited Mr Y several times, including carrying out an unannounced visit. The records show Mr Y was happy and settled and participated in a variety of activities, Mr Y managed his own personal care and was able to choose what he ate. When Mr Y requested to start cycling and to attend church, this was arranged. There was no evidence to support Mr X’s concerns about bruising or that Mr Y was caused any harm so the Council was not at fault.
29. Mr X is unhappy the Council appointed an advocate to Mr Y. The records show Mr Y’s views can be influenced by who he speaks to and he can say what he perceives others want to hear. The Council appointed an independent advocate to ensure Mr Y’s voice can be heard. This was appropriate and was not fault.

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Agreed action

30. Within one month of the final decision the Council has agreed to:
1. apologise to Mr X for the frustration and distress caused by the Council’s failure to properly consult Mr Y on who should be involved in his review. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology.
2. pay Mr Y £200 to acknowledge the uncertainty caused by the failure to complete his November 2022 review in a person-centred way.
3. provide evidence that it has reminded relevant staff:
1. to obtain consent to share information, at each review;
2. to make enquiries into who the individual would like involved in their review, at each intervention; and
3. that not including individuals in their review should only happen if a best interest decision has been made that involvement will cause significant distress.
31. The Council should provide us with evidence it has complied with the above actions.

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Final decision

32. I have completed my investigation. There was fault causing injustice which the Council has agreed to remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman