Summary: Mr W, on behalf of the family, complained the Council failed to assess Mr X’s capacity or consult his parents before deciding to extend his respite stay. Mr W also complained about delays and lack of action in response to safeguarding concerns. We find the Council at fault for delay informing the family of the safeguarding outcome, which caused uncertainty. The Council has agreed to issue an apology.

The complaint

1. Mr W, a representative for the family, complained about the Council’s decision for Mr X to remain at a residential respite placement longer than necessary. Specifically, he said:
1. there is no evidence of a mental capacity assessment being completed for Mr X in relation to the decision for him to remain at the placement;
2. the best interests decision was made without consulting Mr X’s parents, Mrs Y and Mr Z; and
3. the best interests decision was made without involving Mr X.
2. Mr W says this meant that Mr X was kept away from his home for longer than necessary, breaching his human rights. As a result, Mr X’s wellbeing and mental health has been affected.
3. Mr W also complained about the Council’s response to safeguarding concerns raised by Mr Z about the care Mr X received during the respite placement. Specifically, that the Council:
1. delayed considering the safeguarding concern;
2. failed to complete a safeguarding enquiry;
3. failed to explain why the concerns reported did not meet the threshold; and
4. sent the parents an intimidating letter inappropriately proposing that Mr X return to a respite placement that had been previously unsuitable for him.
4. Mr W says this has caused Mrs Y and Mr Z significant distress and uncertainty and leaves Mr X at an increased risk of abuse and neglect in the future.
5. Mr W would like the Council to apologise, compensate the family for the impact it has had on their physical and mental health, and make improvements to its service.

Back to top

The Ombudsman’s role and powers

6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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)

Back to top

How I considered this complaint

9. I considered the complaint and information Mr W provided.
10. I made written enquiries of the Council and considered its response along with relevant law and guidance.
11. I referred to the Ombudsman Guidance on Remedies, (a copy of which can be found on our website).
12. Mr W and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Relevant law and legislation

Mental capacity

13. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

Best interests decision making

14. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
15. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Lasting Power of Attorney

16. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
17. There are two types of LPA.

• 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. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• 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.

Human Rights Act

18. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
19. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
20. In practical terms, councils will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.

Safeguarding

21. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

What happened

Background

22. Mr X has complex needs and an existing respite allocation as part of his package of care. From March 2023, his behaviour changed significantly. Mr X’s parents, Mrs Y and Mr Z began requesting respite at short notice and in quick succession, reporting sleep deprivation, challenging physical behaviours, and damage to the home. Mrs Y said these behaviours were due to a change in his medication which was being monitored by healthcare professionals. After previously raising concerns about placement A, the family asked the Council to find an alternative respite placement for Mr X.

Emergency respite

23. On 16 August 2023, due to difficulties managing Mr X’s behaviour at home, his parents requested emergency respite. An urgent multidisciplinary team (MDT) meeting was held that day, and it was agreed that Mr X should enter respite care at placement B and be supported by care provider A. The family was informed, and Mr X began his stay. A later mental capacity assessment (MCA) confirmed that Mr X lacked the capacity to make decisions about a stay at respite.
24. After five nights, an MDT meeting (attended by professionals and the family) concluded that Mr X should remain in respite for an additional two weeks. A follow-up MDT meeting during his stay confirmed that he should return home at the end of this period to resume his regular care package and planned respite later that month. Throughout, the Council explained that placement B was not a sustainable long-term solution and that a new respite option would need to be sourced; the family, however, refused the previous setting (placement A).
25. On 21 September 2023, the family reported behaviour challenges, requested respite, and shared they would consider placement A if necessary. However, the Council arranged a four-night respite stay at placement B starting later that week.

Best interests decision

26. On 26 September, three nights into the respite, an MDT meeting was set up to decide whether Mr X should return home as planned or remain in respite until long-term supported living could be arranged. With the family nearing crisis after his previous return home, the Council gathered input from professionals, appointed an advocate, and documented Mr X’s views and recent behaviour. Although the parents’ preferred view that he remains at home was considered and documented, the MDT determined that staying at placement B was in his best interests because of concerns about managing his needs at home.
27. Following the meeting, Mr X’s social worker explained to the parents that, due to the recurring crisis, the MDT had recommended that Mr X remain at placement B while exploring long-term support options. The social worker reassured the family about regular contact and visits. During the call, Mrs Y mentioned that she believed the issues stemmed from a medication change and expressed that she missed Mr X. The social worker explained that if the Council and family could not reach an agreement, the matter would be referred to the Court of Protection. The family agreed to work with the Council.
28. Over the next week, Mr X became increasingly dysregulated at placement B, causing property damage and showing physical aggression towards carers, resulting in police involvement. Consequently, the Council decided to change the care provider while coordinating with the family and current provider to ensure a consistent response to Mr X’s requests to return home.
29. In October, the parents told the Council they no longer believed that remaining in respite was in Mr X’s best interests. The Council reiterated that the MDT decision was not permanent and could be revisited based on his best interests. Although the parents could take him home at any time, doing so would contradict professional advice.
30. The care provider supporting Mr X in Placement B was changed by the Council to care provider B. On the same day, the parents took Mr X home, sharing concerns that the previous care provider was inadequate, and that respite was causing him harm. The Council reiterated the MDT’s recommendation that Mr X remain in respite until long-term options were found and requested his return to placement B. Despite this, Mr X remained at home and his original care package was reinstated.

Safeguarding concerns

31. After Mr X was taken home, Mr Z raised concerns about the quality of care at placement B, including issues with food, personal hygiene, and an incident that had occurred. The Council told Mr Z it would share these concerns with the commissioning team.
32. Six weeks later, Mr Z raised further concerns.
33. Mr Z followed up with the Council for a response to his concerns.
34. In December, Mr X’s social worker told Mr Z that while his concerns had been reviewed by the safeguarding team, they did not meet the threshold for a safeguarding enquiry. The social worker asked that any comments made by Mr X about his care be logged and sent to her.

Follow-up letter and subsequent correspondence

35. In December, the parents received a letter from the social worker suggesting that Mr X return to placement A for future respite stays. The letter also stated that the Council was no longer pursuing its application to the Court of Protection; however, this was dependent on maintaining open communication and re-establishing good working relationships.
36. In January 2024, the parents responded, welcoming the opportunity to work with the Council on Mr X’s care plan. They raised concerns that:
• no MCA was completed on Mr X before the MDT meeting on 26 September 2023;
• Mr Z, who holds lasting power of attorney (LPA), was not involved in the MDT, which they claim resulted in Mr X being unlawfully detained in a placement where he was allegedly subjected to neglect and abuse; and
• returning to placement A for regular respite was unsuitable given past concerns; they proposed placement C as an alternative.
37. The next day, the Council responded saying that:
• an MCA was completed before Mr X entered respite and again to assess his capacity to consent to remain there;
• the Council was not previously aware that Mr Z held LPA;
• in best interests decisions, not all parties are required to be present at the same meeting; the professionals had agreed that remaining at placement B was best for Mr X. The Council explained that if agreement could not be reached, a decision would be sought from the Court of Protection, but this was ultimately not necessary;
• Mr X was not unlawfully detained; although the Council had considered a Court of Protection order, this was ended after Mr X’s condition stabilised; and
• the Council is reviewing the proposed alternative placement; any change would require management approval.

Complaint to the Council

38. In February, Mr W submitted a formal complaint on behalf of the family, raising several issues:
• the 26 September 2023 MDT meeting took place without the parents;
• there is no evidence that an MCA was conducted for the decision to keep Mr X in respite;
• although an advocate was appointed for Mr X, the meeting minutes do not show that his views were effectively represented;
• the decision for Mr X to remain at placement B until a long-term placement was found was made without consulting the parents; they were informed only afterward and felt intimidated by the threat of Court of Protection proceedings;
• the parents believe Mr X experienced neglect and abuse at placement B under care provider A and criticised the Council for not explaining why a safeguarding enquiry was not initiated or for sharing the outcome of any investigation;
• he expressed concerns about the suggestion that Mr X return to placement A for regular respite, given previous concerns; and
• the parents continue to feel insufficiently involved, noting that a recent MDT did not allow enough time for them to raise their views.
39. The Council responded explaining that:
• the best interests decision was made in line with its Care Act responsibilities to ensure that Mr X was cared for and his needs were met;
• the parents were informed of the MDT’s concerns and agreed that it was in Mr X’s best interests to remain in respite whilst long-term options were explored;
• the safeguarding team reviewed the concerns and advised that the care provider no longer posed a risk to Mr X, and discussing the concerns with him would have a negative effect on his emotional wellbeing;
• Mr X is now receiving respite care at placement C; and
• the Council will continue to involve Mr X and the parents in all future decisions about his care and support.

My enquiries

40. In response to my enquiries the Council explained that:
• although Mr Z raised a safeguarding concern about the care Mr X received from care provider A, that provider has since been replaced. Since Mr X will not return to their care, the risk associated with the original concern is no longer present. The Council has shared these concerns with its commissioning and quality teams;
• an application to the Court of Protection was considered due to concerns about Mr X’s wellbeing, risk of hospitalisation, and ongoing instability. However, once Mr X returned home and his behaviour stabilised, the proceedings were discontinued; and
• the Council had discussed support options with the family including the limited option for respite. The family made it clear that they want Mr X to remain at home with a care package, including respite, that meets his individual needs. Placement A was considered as one potential option to provide the support needed.

My findings

26 September MDT

41. I reviewed evidence of two MCA’s conducted for Mr X. The first, completed before his emergency respite stay in August, evaluated his capacity to decide on a respite stay to meet his care and support needs, and residency. The second assessed his ability to determine how and where his care and support needs would be met. Both assessments concluded that Mr X lacks the capacity to make these decisions, and, given his lifelong permanent health conditions, it is unlikely he will regain capacity in these areas.
42. Considering the outcomes of these assessments, I have not further investigated whether an MCA was completed the following month regarding the decision for him to remain in respite. On the balance of probabilities, I find that Mr X would have been found to lack capacity, so the existence of an additional MCA would not have changed the decision.
43. The evidence shows that the parents maintained regular contact with the Council. Their wish for Mr X to return home was considered and documented during the MDT meeting, and they were consulted after the meeting, providing them an opportunity to express their views. Although the parents claim they would have raised safeguarding concerns during that meeting, which they believe might have ended the placement, incidents later raised by Mr Z occurred after this meeting. Additionally, the parents had ample opportunity to raise concerns during their ongoing contacts with the Council both before and after the meeting.
44. The evidence also confirms that Mr X’s views were considered and documented as part of the MDT meeting. I find no fault with the Council’s handling of the best interests decision.

Safeguarding concerns

45. When Mr Z first raised safeguarding concerns, the Council immediately told him that his concerns would be shared with the commissioning team. The Council did not progress with a safeguarding enquiry as Mr X was no longer receiving care from care provider A. I find no evidence of fault in this decision.
46. Mr Z later raised additional safeguarding concerns. When he followed up on the safeguarding concerns, the Council informed him that it had decided not to proceed with an enquiry. I find no evidence of fault in this decision, however the Council’s failure to communicate this decision in a timely manner is fault and caused Mr Z avoidable uncertainty.

Follow-up letter

47. I acknowledge that the parents felt the letter they received was intimidating. However, upon review, I do not find that it was written in an intimidating manner.
48. The Council supported the family in their caring role by repeatedly responding to urgent requests for respite. It worked closely with the family and other professionals to manage risks and explained the difficulties in sourcing respite for Mr X. To provide long-term support it suggested placement A, a proposal that the parents were at one stage open to. I find no fault in the Council making that suggestion. Subsequently, the Council has worked with the family and secured an alternative provision for ongoing respite.
49. In summary, the evidence shows that the Council acted in line with its statutory responsibilities and in Mr X’s best interests. While the family raised concerns, the decision-making process was supported by relevant assessment, and the Council engaged with the parents throughout. The Council also took steps to manage risks and address the family’s requests, including securing an alternative respite provision for Mr X.

Back to top

Action

50. To remedy the injustice caused by the above fault, within four weeks of the date of my final decision, the Council has agreed to apologise to Mr Z in line with our guidance on Making an effective apology.
51. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

I have completed my investigation. There was fault by the Council. The Council has agreed to the above action as a suitable remedy for the injustice caused.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman