London Borough of Southwark (22 011 943)

Category : Adult care services > Transition from childrens services

Decision : Upheld

Decision date : 10 Apr 2023

The Ombudsman's final decision:

Summary: There was no fault by the Council which caused delays in the process of arranging a supported living placement for a young person transitioning from child to adult care services. There was also no fault in how the Council carried out a mental capacity assessment of him. However, there was fault by the Council for failing to hold a best interests decision meeting, once it had decided the young person did not have capacity to decide where he should live. Given the time which has now passed, the Council has agreed to remedy the injustice this caused by carrying out a fresh assessment of the young person’s capacity, and then, if appropriate, holding a best interests decision meeting.

The complaint

  1. I will refer to the complainant as Mr D. Mr D is represented in his complaint by his mother, to whom I will refer as Ms W.
  2. Ms W complains about the Council’s handling of Mr D’s transition from child to adult services. Specifically, she says:
  • poor case management practices caused a delay in arranging a supported living placement for Mr D;
  • the Council carried out a mental capacity assessment of Mr D when he was unsettled, making the outcome unreliable, and also failed to arrange it at a time she could attend;
  • the Council failed to ensure she could attend a subsequent ‘best interests’ decision meeting.

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The Ombudsman’s role and powers

  1. 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)

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How I considered this complaint

  1. I reviewed the Council’s correspondence with Ms W and other relevant parties, its case notes, and a copy of the mental capacity assessment of Mr D alongside other records.
  2. I also shared a draft copy of this decision with each party for their comments.

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What I found

  1. There has been a significant volume of correspondence between Ms W and the Council during the events related to this complaint; and Ms W’s complaint to the Council covers many small details, which the Council addressed in its responses and, in some cases, upheld her complaint.
  2. However, as a publicly funded body we must be careful how we use our resources. We conduct proportionate investigations; completing them when we consider we have enough evidence to make a sound decision. This means we do not try to answer every single question a complainant may have about what the organisation did, but instead focus on the issue(s) which have the potential to cause significant injustice. The appropriateness of this has been agreed by the courts.
  3. For this reason, my investigation will not consider each small point which the Council considered in response to Ms W’s complaint, but will instead focus only on the main, substantive issues as described in paragraph 2. Similarly, the following chronology will provide only an overview of the events surrounding this complaint, and not a detailed account of what happened.
  4. Mr D has a developmental disorder, which means he has significant care and support needs and can sometimes be violent towards others. He has been receiving Council services for some years and, at the beginning of the period relevant to this complaint, was attending a special school and living at home with Ms W.
  5. In October 2020, Mr D turned 18 years old, which means his support was due to transition from the Council’s child services to its adult services. As part of this, the Council began to arrange a new educational placement for him, but Ms W also wished for him to move away from home into a supported living placement.
  6. Mr D’s supported living placement began in October 2022. However, Ms W complains this should have started sooner. She says delays arose because the Council kept changing Mr D’s allocated social worker, and that there was a period in which his case was ‘de-allocated’ entirely. Ms W says the Council’s main focus in arranging a placement for Mr D was cost, and not his needs.
  7. Ms W also complains the Council undertook a mental capacity assessment for Mr D, to determine whether he had the capacity to decide where he lived. The outcome of the assessment was that he did not have capacity, but Ms W considers this unreliable, because the assessment took place when Mr D was emotionally dysregulated. She also complains the Council did not arrange the assessment to take place at a weekend, when she would have been able to attend it.
  8. Ms W also complains the Council did not invite her to a subsequent ‘best interests’ decision meeting. She said she had wished to challenge the outcome of the mental capacity assessment at this meeting, and that its outcome was again not reliable because of the flawed assessment.
  9. In response to Ms W’s complaints, the Council said it had identified 25 different supported living placements, each of which Ms W had turned down because she did not consider them suitable. It acknowledged Mr D’s case had been handled by several different staff, but explained this was unavoidable because of staff turnover and sickness. It said placement cost was a relevant factor for it consider, but it denied this took precedence over Mr D’s needs.
  10. The Council also explained that it had de-allocated Mr D’s case briefly while Ms W was considering different potential placements for him. It said this was a normal administrative practice, but accepted it could have explained this better to Ms W.
  11. The Council explained it could not make a social worker available at the weekend to carry out the mental capacity assessment. However, it said it was confident the social worker had taken account of Mr D’s mental state at the time of the assessment, and did not share Ms W’s concerns about its reliability.
  12. The Council noted it had invited Ms W to a best interests decision meeting, but when she did not respond it decided this would serve no purpose. But the Council agreed the invitation should have been repeated, giving more detail about the purpose of the meeting, and upheld this point. However, as Ms W agreed with Mr D’s placement, which had now been arranged, there was now value to re-arranging the meeting.
  13. Ms W referred her complaint to the Ombudsman on 26 November 2022.

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Legislative background

Mental Capacity Act

  1. 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.

Mental capacity assessment

  1. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:
  • because they make an unwise decision;
  • based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
  • before all practicable steps to help the person to do so have been taken without success.
  1. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
  2. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.

Best interests decision making

  1. 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.

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  1. For ease of understanding, I will address each point of Ms W’s complaint separately and in turn.

Delay in finding a supported living placement

  1. The records I have seen show the Council began sending consultations to supported living providers, seeking a placement for Mr D, in early 2021; but it was not until May 2022 that a placement was actually arranged.
  2. I agree this was a lengthy process. However, I am not persuaded this can reasonably be attributed to Council fault. The evidence shows it consulted widely, with numerous providers – according to the Council, 25 in total – each of which Ms W decided was not suitable. In some cases she did not elaborate on her reason for this, in other cases she explained it was because the location meant it would impinge on Mr D’s right to a family life.
  3. It was entirely Ms W’s prerogative to decide whether she felt a placement was right for Mr D, and I do not seek to criticise her for this. The fact remains there will always be a limited number of placements available to accommodate a person in Mr D’s position, and I cannot say the Council was at fault simply because Ms W was not satisfied with what was on offer.
  4. I note the Council has acknowledged Mr D was re-allocated several times to a new case worker during the search for a suitable placement for him. This, clearly, is not ideal. But the issues cited by the Council to explain this – staff leaving their posts or going on sick leave – appear inevitable, given the period of time the search took to complete; and I do not see what alternative the Council would have in such circumstances except to re-allocate Mr D’s case. This is not evidence of poor management.
  5. Similarly, the Council has explained it de-allocated Mr D’s case for a period of time while Ms W considered the options available. Again, this is not ideal, but the Council has explained this just meant the case was held in one of its teams, without a specific social worker. The Council is entitled to decide how best to manage its resources and I do not consider there is any fault in this practice. There is no reason to believe this caused any significant delay in finding Mr D a placement.
  6. Ms W also complains the Council focussed on the likely cost of Mr D’s placement, to the exclusion of his needs, during the search. In this, it appears she is referring particularly to the fact that, after his placement was finally agreed, the Council’s decision-making panel asked a social worker to negotiate a price reduction with the provider.
  7. Ms W’s concern here is, understandably, about what is best for Mr D. But the Council’s duty here is to balance both this, and the best use of its limited resources. It is therefore correct for the Council to work to achieve the best value for money it can in providing for a person in Mr D’s position. I do not consider this demonstrates the Council was not concerned about properly meeting Mr D’s needs.
  8. And, in fact, it succeeded in negotiating a very significant reduction (in the region of 20%) in the price of Mr D’s placement. More importantly, this process appears to have taken only approximately one week, from when the panel asked the social worker to seek a reduction, to when it agreed the newly offered price. Again, there is no reason to believe this caused any significant delay in Mr D taking up his placement.
  9. I find no fault in this element of Mr D’s complaint.

Mental capacity assessment

  1. After settling on a placement for Mr D, the Council arranged to carry out a mental capacity assessment. The purpose of this assessment was to determine whether he had the capacity to decide where he should live.
  2. Ms W complains the Council did not agree to carry out the assessment at the weekend, as she works full-time during the week. This meant she could not attend.
  3. The Council has explained its social workers also generally work normal office hours and not at the weekend. Although there are social workers on duty over the weekend, they are there to deal with emergencies and not routine, scheduled business.
  4. Again, it is for the Council to decide how to manage its resources. While I appreciate Ms W’s reason for seeking a weekend appointment, it is not fault for the Council to refuse this request. It is unfortunate this meant Ms W could not attend the assessment, but this is not something I can criticise the Council for.
  5. Ms W also complains Mr D was unsettled at the time of the assessment, and she therefore questions how representative it was of his capacity. I understand that, shortly before the assessment (which took place at Mr D’s school), he had been involved in an incident which had led to him being restrained by staff. I note also a staff member wrote an email to Ms W afterwards, suggesting the assessor’s questions were too “hard” for him, and that it would have helped for them to have had the list in advance so they could have rephrased the questions.
  6. I understand why Ms W considers this may have affected the outcome of the assessment. However, the assessor recorded that Mr D was calm by the time she arrived and responded to her greeting, and the Council says it is satisfied the assessment can be relied upon. It is not possible for me to make a judgement on this point. I was not there and did not witness the assessment. I appreciate Ms W’s concern, but equally I have no reason to doubt the assessor’s view.
  7. I also acknowledge the school’s comments to Ms W, but I have seen the questions the assessor asked Mr D and there does not appear anything unusual about them.
  8. Having said this, I am left questioning the timing of the mental capacity assessment. Given the outcome could potentially have been that Mr D did have the capacity to decide where he was going to live, it appears the assessment should logically have taken place before the Council sought and arranged a supported living placement for him, not after.
  9. I note the Council told Ms W, before the assessment, that Mr D would not be able to move into his placement until it had been completed. I am satisfied, therefore, the Council was not treating the assessment simply as a formality, but as an important part of the process. For this reason I do not consider this amounts to fault; but I still feel compelled to observe it was possible all the time and effort to find a placement for Mr D could have been wasted, if the outcome of the assessment had been different.
  10. I find no fault in this element of Mr D’s complaint.

Best interests decision meeting

  1. Ms W’s complaint here is that the Council failed to invite her to the best interests decision meeting, which took place after Mr D’s mental capacity assessment.
  2. I have seen an email from the Council to Ms W dated 13 July, in which it explicitly invited her to attend the meeting which was due to take place a couple of weeks later. A subsequent note says the Council was still waiting for Ms W’s response. I am satisfied, therefore, it is not accurate to say the Council failed to invite her.
  3. However, the Council stage 2 response explained officers had then decided not to hold the meeting, because, without Ms W, it would not have “served any practical purpose”. Although the Council accepted it should have chased the invitation up with Ms W at the time, and found fault for this, it said it would not now arrange a best interests decision meeting for Mr D because it could not see “why this would now benefit” him.
  4. The purpose of best interests decision making is to ensure that any decision, taken on behalf of a person who lacks capacity to do so him- or herself, is in their ‘best interests’; this means considering not only their physical safety and welfare, but also their known wishes, beliefs and values. Consulting next of kin or others who know the person well is an important part of this process, but this does not mean the best interests principle no longer applies because a key family member cannot be contacted.
  5. I am therefore concerned about the Council’s comments here, even acknowledging it has criticised itself for failing to chase Ms W about the meeting invitation. The implication is that, because Ms W would not be at the meeting, there was no purpose to considering whether the move to supported living was in Mr D’s best interests. And later that, because several months had passed and Mr D's placement was shortly due to start, there was now no benefit to him in considering his best interests.
  6. I do not share either view. Once it had been decided Mr D lacked capacity, the decisions which followed had to follow the best interests principle. This did not mean a formal decision-making meeting must then, by law, have been convened; but given the Council had evidently decided this was necessary in Mr D’s case, I consider it should have seen this through.
  7. I agree the Council should have contacted Ms W again about the proposed meeting when it did not receive a response, but even if it had still been unable to contact her, the meeting should still have gone ahead without her. Alternatively, the Council should have reconvened the meeting after its investigation of Ms W’s complaint. I consider it was at fault for failing to do this.
  8. I cannot say the outcome would have been any different for Mr D, even if there had been no fault. I am conscious that, despite her complaints about these matters, Ms W agrees Mr D should be in a supported living placement; and so there is no reason to believe she would have objected to this proposal, even if she had been at a best interests decision meeting. I note Ms W believed the meeting would have given her the opportunity to challenge the outcome of the mental capacity assessment, but this is not the purpose of a best interests decision meeting.
  9. I should stress I also have no reason to believe the placement is not in Mr D’s best interests, and so I cannot say there is any injustice to him in this sense. But there remains an uncertainty about what would have happened if the meeting had gone ahead, and I consider this represents an injustice in itself.
  10. I consider the appropriate way to remedy this would be by convening a meeting now between all relevant parties – including, if she so wishes, Ms W. Although Mr D’s placement has already started, there remains a value in formally deciding this is in his best interests.
  11. In making this recommendation, I am conscious it has now been nearly a year since Mr D’s mental capacity assessment. Although I have no reason to doubt the outcome of that assessment, the law recognises that mental capacity can fluctuate over time. This being so, I consider the Council should first carry out a fresh mental capacity assessment of Mr D, to determine if he is still not capable of deciding where he should live. If the outcome of the assessment is the same as before, the Council should then proceed to arranging a best interests decision meeting.
  12. Separately, I consider the Council should also take steps to reinforce amongst relevant staff the importance of following the best interests principle where a person lacks capacity to make a decision.
  13. I make recommendations to this effect.
  14. I find fault causing injustice in this element of Mr D’s complaint.

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Agreed action

  1. Within one month of the date of my final decision, the Council has agreed to arrange a fresh mental capacity assessment of Mr D.
  2. If the outcome of this is that Mr D is not capable of deciding where he should live, the Council will then arrange a best interests decision meeting, including all relevant parties, within three months of the date of my final decision.
  3. Also within one month of the date of my final decision, the Council has agreed to circulate guidance to all relevant staff, stressing the legal requirement to follow the best interests principle once a decision has been made that a person lacks capacity, and explaining what the Council expects this should look like in practice.
  4. The Council should provide us with evidence it has complied with the above actions.

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Final decision

  1. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman

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