Worcestershire Council at fault for delay in providing care and accommodation, for failure to assess capacity to make decisions, for failure regarding consideration of the need for advocacy, and failure to assess a carer

Date of Decision: 25th June, 2019

What happened

Mr D was a middle-aged man with autistic spectrum disorder (ASD) and mild learning disabilities. He was able to read and write and carry out simple tasks and under supervision could work, in supported, part-time work placements.

He had lived with Mr and Mrs C (who were at retirement age at the time of complaining) all his life.

In 2009, the Council had recorded on a care plan that Mr D’s needs should be met in supported housing with compatible peers with a high level of support from carers with knowledge of ASD.

Mr and Mrs C said that they and he wanted Mr D to live as independently as possible in their town and that Mr D had attended independent living college courses. He had wanted to live independently for 20 years and yet he still lived at home.

The family had moved to the Council’s area about 15 years ago and asked the Council to help shortly after that, and said the Council took 3 years to do a social care assessment. The ombudsman extended investigation of events going back to 2016 and read papers going back to 2014 for relevant background information.

In 2014, the Council entered into partnership with its Local NHS Trust for the provision of adult social care. The Council was entitled to enter into such an arrangement, but the statutory responsibility continued to lie with the Council and there were failures with which the Ombudsman found fault.

In early 2019, the partnership with the NHS Trust ended and the Council had since resumed its overall control of the adult social care in its area. While over much of the period about which Mr and Mrs C complained, the Council had only borne the statutory, but not the actual responsibility for Mr D’s care, it now has taken back operational responsibility fully, so the Ombudsman referred to ‘Council’ fault throughout.

Mrs C wrote that Mr D’s needs were complex and personal to him and were such that he would ‘not transpose easily into any of the social care settings you have mentioned’. Mrs C continued to say the following:

  • Mr D would find living in a rented home with others with support from a domiciliary agency an impossible challenge
  • He would find living alone, with similar support, also challenging
  • Mrs C would be unable to support and advise unmotivated staff in an unfamiliar or unsuitable setting in which she expected she would be ‘viewed as an interfering presence’
  • Mrs C could not afford to train and supervise her own team to support Mr D and due to her age, that would be unrealistic
  • The Council’s Shared Lives programme which would see Mr D living with another family was not acceptable
  • Autism specific residential provision was also unacceptable as it would be a ‘ghetto’
  • Companies providing autism specific care were not impressive and would probably not be able to help

The Council reported that Mrs C was not clear about her expectations, only about what she did not want to happen, and what services and support would not be appropriate for Mr D. The Council noted that they did not speak to Mr D on his own or gain access to him to assess to capacity to make a decision himself regarding and assessment.

Mrs C stated that she did not object to officers assessing Mr D and expected them to do so – she had been surprised when they did not. Mrs C says that she would have welcomed longer sessions between care professionals and Mr D.

In June 2014, Officer O sent his draft assessment to Mrs C – she believed that Officer O had misrepresented Mr D’s condition. She made extensive notes on the draft report. In October 2014, Mr C complained to the Council about lack of progress in the case and that was partially upheld, but things ground to a halt again.

In 2016, a new social worker Officer P took over the case but Mr and Mrs C were suspicious of Officer P and asked her to provide an account of all her relevant experience and the Council sought to accommodate then by involving a consultant clinical psychologist (Ms X) from the local NHS trust with experience of ASDs.

Before any meeting took place, Mrs C wrote to the Council saying that they (Mr and Mrs C) had ‘come to the end of the line. We have repeatedly expressed our concerns (since about 2006!) that [Mr D’s] social care assessments and resultant suggested placements have not reflected an understanding of his autism and how this impacts on his functioning as a learning disabled man’. She went on to say that she was concerned about the way that they were implementing the Autism Strategy and that they were probably breaking the law.

The Council took steps to involve Mr and Mrs C in the process and to prove Ms X’s expertise.

Mr D attended the meeting briefly but then left and Officer P noted that there was consensus that Mr D has capacity to understand that he can participate if he chose but that he had deferred to his parents to speak on his behalf at that time.

The notes record that Mrs C became agitated when DoLS was discussed (deprivation of liberty safeguards) and would not permit Mr D to leave the family home if that was applied. The refused an advocate for Mr D, as Mr and Mrs C saw this as their role.

Mr and Mrs C trusted Ms X and she completed a report on which the draft assessment was to be completed, but Ms X left the NHS Trust in October 2016, leaving the family without contact with a specialist consultant. Ms X and Officer P were able to complete the report bar two minor amendments on 27th October 2016. However, the full report was not sent until late January 2017 due to illness and efforts to work with Ms X on a consultancy basis.

The final assessment found that Mr D required help in doing the following

  • Managing and maintaining nutrition
  • Maintaining personal hygiene
  • Being appropriately clothed
  • Using the home safely
  • Maintaining a habitable environment
  • Developing and maintaining personal relationships
  • Accessing and engaging in work, training, education or volunteering
  • Making use of facilities such as public transport

The report stated that:

  • Mr D had wanted to move out of the family home for twenty years but had been prevented from doing so by a lack of appropriate support
  • If he was to move out, he would need appropriate support
  • His carers would need a bespoke training package created by Ms X
  • His care should take an inclusive approach
  • Speech and language therapy and assistive technology would help Mr D
  • He must maintain his current activities while building a ‘circle of support’ to support him
  • There should be a person-centred plan to enable him to move out of home

The local NHS trust failed to find a way of funding Ms X’s input throughout much of 2017 and in September a place in a new supported living facility with independent dwellings and sharing some facilities and common areas was offered. Officer P wrote to Mr and Mrs C and asked if they would like to view the facility and updated them on the problems with Ms X’s funding. Mr and Mrs C were interested in the facility but unhappy with the delays in funding Ms X.

In October 2017, Mr and Mrs C made enquiries about the facility and decided it was unsuitable as it was not autism specific and had shared facilities which they felt Mr C could not have used.

In November the NHS trust finally agreed to fund 15 hours of Ms X’s time as long as she registered with NHS Professionals (NHSP), an organisation that supplied temporary NHS staff. Ms X did not know how to register for this and also suggested another psychologist work on the case. In January 2018, payment was confirmed but Ms X was no longer willing to work on the case.

What was found

Having accepted that Mr D had eligible needs the Council had always had a duty to meet those needs.

These needs had been assessed in 2014 and again in 2016 by which time the Care Act had come into force.

In March 2019 the Council wrote to Mr and Mrs C to say that there had been a delay in the case which was unacceptable and the Ombudsman upheld that as a clear fault, causing injustice to Mr D who had no chance of moving into independent accommodation in the interim, and injustice was also caused to Mr and Mrs C.

Although the Council upheld Mr C’s complaint in December 2014 and promised further action, no officer was allocated, and the case was not progressed until February 2016 and this was found as fault too.

Once Ms X’s help had become available, Officer P completed a second assessment between February and June 2016 and Mr and Mrs C had agreed the wording. The Council agreed that Mr D had eligible needs and that they would meet them. It was found that the Council was at fault for causing inexcusable delay since then.

It was not the Council’s fault that Ms X left her job but given that she was happy to work for the short time of 15 hours, it was extraordinary that it took well over a year to confirm how to pay for the time, by which time Ms X was no longer available. It was accepted that because the NHS Trust were the cause of the delay in providing payment for Ms X that the fault lay with the NHS Trust. It was only in early 2019 that the Council wrote to Mr and Mrs C offering help and this was too late.

The panel hearing for Mr D’s funding still had not taken place at the time of the outcome of the Ombudsman’s investigation. This was found to be fault because the Council could not use its own difficulties to prevent the allocation of funds for the duty. It was noted that Mr and Mrs C suspected that the Council had deliberately delayed making a decision on the funding package to save money but the Ombudsman found no evidence of that activity.

However, the Ombudsman noted that in 2014 Mr and Mrs C had been offered and had often refused assistance without trying the offers first, using the Council’s misunderstanding of ASD as the reason. In 2014 Mrs C wrote to Officer O rejecting six separate solutions for Mr D as unsuitable and Mrs C at this point made assumptions that were not supported by evidence. She assumed that care staff would be ‘unmotivated’ and view her as an ‘interfering presence’ when no facility or staff had even been identified. In 2016, a further option of supported independent living was offered and in the end Mrs C did not visit because she believed it to be self-evidently unsuitable and wrote to Officer P asking how she could have considered it to be suitable.

In October 2017, Mr D wrote to Officer P prompted by Mrs C to ask when he might move out of the family home. However, on the evidence the Ombudsman found that there was a danger that no accommodation acceptable to Mr and Mrs C would be found.

Mr and Mrs C made the complaint on Mr D’s behalf and as they knew Mr D best it was right that the council involve them in his care and support. Mr D however was only peripherally involved and it is the law under the Mental Capacity Act 2005 that a person should be assumed to have capacity to make decisions unless proven otherwise.

No capacity assessment was ever made for Mr D – if he wanted to live independently and Mr and Mrs C refused all options made available to him, there was the possibility of a conflict of interest.

Mrs C refused an advocate in 2016 and the Council had never considered the concerns that were raised that Mr D had not himself been consulted in that context – for which it was found to be at fault.

The Council also undertook in 2015 to conduct a carer’s assessment for Mrs C. There is some suggestion in notes that this was resisted but there is no suggestion of this from Mrs C. The ombudsman found the Council at fault for failure to conduct a carer’s assessment of Mrs C.

The ombudsman found no evidence that the Council was in breach of the guidance issued under the Autism Act 2009. For example, the Council said that it has made ASD training available to all staff and that over 600 members of staff had attended to date. Officer P gained support from Ms X who had expertise in ASD in particular in her contribution to the funding assessment. The Council did try to adapt its suggestions to meet Mr D’s needs and co-operated with NHS Trust to provide care and support services. The council also attempted to find a way that Mr D could live independently.

Within four weeks the Council should:

  • Apologise to Mr and Mrs C for delays in assessing Mr D and Mrs C
  • Pay Mr D £500 for the delay in his case
  • Pay Mr and Mrs C £300 in recognition of the time and trouble they were put to

Within two months the Council should:

  • Find a replacement psychologist or other professional with appropriate expertise in ASD acceptable to Mr D and commence work with the family
  • Learn from Mr and Mrs C what kind of provision they considered would be suitable and get an agreed statement to what it was
  • Assess Mr D’s mental capacity, and identify Mr D’s wishes, if appropriate
  • Consider the appointment of an independent advocate to represent him
  • Assess Mr and Mrs C’s needs as carers, should they wish it.

Points for the public, service users, families and Councils

The most important action that was found to be necessary was that the Council should find a way to accommodate Mr D as soon as possible – but the LGO’s investigator did not say HOW, or refer to housing law, or make it any clearer what Mrs C believed should be provided, if he could neither live easily with other people nor on his own. If he wasn’t wanting to live with others, or could not be expected to, he could simply have been evicted benignly by his parents and found suitable housing through homelessness provisions by his local housing authority, and then could have received a service from the council that Mrs C would not have had to have run.

Social Services councils do not ever tell parents that that is a possibility, in our experience. They neither tell them that they don’t provide / find / secure the accommodation as part and parcel of the Care Act process, nor that they can help a person with their Housing Act application through providing assurance that the person will be given enough care and support to be a good tenant. The only reason we can think of is that no council wants to pay for a service for a person on their own, because of the culture that has grown up around Supported Living, which assumes people will be happy to share a house and share a care provider, so that their budget can be less than it would otherwise cost.

We think that there is a huge likelihood in the next 2-3 years that there will be caselaw making it clear that people with learning disabilities are at the very least owed the support to identify a range of ordinary tenancies in unregistered properties where they could receive care services – or to be allowed into occupation by the council after the council has taken up a tenancy itself.

That is because of the compelling likelihood in many cases, that a competent professional care planner could not AVOID concluding that services which would secure a person’s quality of life (at above the kind of impact and deficits comprised in the national minimum eligibility threshold) could only be provided in a stable environment, and that the housing element is therefore NOT able to be seen as separate from adult social care for such people and must be part of the their care plan.

We do not suggest that the housing would always have to be paid for by the council, if there was a willing deputy to sign a tenancy, and eligibility for Housing Benefit, and the system operating at the moment for getting people into supported living works along those lines.

But we do not believe it is acceptable for councils to signpost these clients only to such tenancies where there is already or will be shared care being commissioned to go into the house, to meet night-time and sometimes other needs. That sort of commissioning strategy conveys the impression that councils think that they can tell people where to live and that they must be jointly assessed or care planned for, and share a budget, as a condition of receiving adult social care and having their needs met. We do not think that there is any justification for that position unless the council is placing the person (and thus providing the accommodation as part of the social care package), as opposed to expecting them to sign up for the tenancy and pay for the accommodation themselves.

The Care Act says that personal budgets cannot be pooled other than with a person’s consent, and of course, nobody can be assessed to have a need for which the response could rationally be said to be one third or one quarter of a support worker! But the sector has offered service users that which was commercially acceptable to councils’ commissioners, instead, and that is why care and support in supported living is less of an ideal than it was first dreamt up to be.

If the council simply lets a person into accommodation without making them a tenant, the council will be providing personal care together with accommodation, through funding both the accommodation and no doubt a contract for the care with a provider. That is why the council’s being a landlord to a sub-tenant service user, will always be the better way forward rather than risking CQC prosecution for not registering the property or the suite of rooms in a larger property, as a care home.

The cost of providing a competent 24 hour service for single people in self-contained premises may not be attractive to councils but it is the inescapable result of a policy of avoiding care home accommodation as appropriate for younger adults, and asserting that they can all just have tenancies. That must be better, we think, than people being stuck in ATUs or at home where they will never be able to experience independent living whilst living with their parents.

With regard to advocacy, it is the law that before a person’s willing and able relative can expect to support their loved one’s participation, in the situation where the person suffers from substantial difficulties in engaging with the Care Act processes (assessment, care planning, revision and safeguarding) that person must be asked whether they consent. In order to make a capacitated decision about that, despite substantial difficulties, one needs to be told that one doesn’t have to have one’s mum doing this support, and that one can HAVE a Care Act advocate, who may know a bit more about the Care Act and one’s rights under it, than one’s parent.

A thorough read of the report does give the impression that Mrs C was a person with her mind made up that her son was not going to be treated properly. In many respects she was proved right. Her views are echoed all around the country and we are not saying she was wrong to expect shilly-shallying.

This is the first complaint we’ve seen where the person has been supplied with a paid for autism specialist, even though the NHS Trust managed to mess even that up in the end through incomprehensible difficulties with the means to PAY the expert. It’s not whether the person was taking on the role of an independent social worker to resolve the historic mistrust issues, or contracted to do the assessment fact finding and recommendations, on behalf of the council, or as a skilled advocate for Mr D.

One does get the impression however that Mr D’s mother’s attitude must have contributed to the council’s apparent state of paralysis. No doubt that is why the compensation for this extreme inaction was not a high award. The law reports from the Administrative Court have seen cases such as this before, such as Sutton in the late 1990s. In that case, a mother’s conscientious and well-funded expert objections to more than 5 interim care plans were offered up as a justification for the council not having managed to complete a care plan in 2 years and 3 months. To that, the impression given of the judge’s thinking was this: ‘You should have just cracked on and let her judicially reviewed you: you don’t have to get her consent, you owe a duty to the daughter to meet her needs, and it’s as if you’ve lost sight of that, because she’s intimidated you all.’)

When parents have had to fight for so long for a reasonable lifestyle and services for a much-loved relative, we often see the following misconceptions about what it is that community care entitles people to:

  • “When the council agreed he’d be better off in supported living, that means that they will find the house…
  • “We can tell the State in which sort of setting his needs should be met – it’s his human right to have a house…
  • “We can write down that we don’t ever want him to go to a care home, in advance of something happening to us and they will have to abide by that, no matter what…
  • “We can be his advocates – we’re his parents – regardless of what he thinks, or whether he’d be better off with an advocate who knew something about the Care Act….
  • “Cost is irrelevant to the determination of an appropriate response to his assessed eligible needs – his needs are his needs….
  • “We can refuse to agree a care plan, and they will just have to give in…
  • “If I have got welfare deputyship for my adult son/daughter, I will be in total charge of decision-making on the part of councils and care providers. I’ll be able to consent to a deprivation of liberty in his/her best interests, I can make decisions about whether he can ever have sex, drink alcohol, eat cake, smoke, what religion he should follow, and make a will for them…
  • “We can use an agency rather than be employers, but tell them to send only male/black/Jewish care workers…
  • “I can spend this direct payment on whatever we like – it’s for my son’s needs, and I am the decision-maker (although I’ve never got deputyship and I’m not even the authorised person for the management of his direct payment – just the helper)…
  • “Once we’ve got something in his care plan, it won’t ever be able to be taken away…
  • “They can’t change his package because his needs haven’t changed at all…
  • “I can refuse to allow anyone in to review or re-assess him. That’ll mean his package can’t be changed…

All these thoughts about the system are flawed, unfortunately, for public law legal reasons that people’s relatives need to understand by the time their loved ones become 18. That is why CASCAIDr sells webinars to parents and parents’ support groups as well as to providers, councils, CCGs, etc.

Case law is clear that service users and carers cannot always have the care they want but must be offered the care they need and that professionals must make decisions based on the needs together with the best interests of service users. Judicial review, and increasingly these days, the LGSCO, are the only way to hold councils to account against public law principles, however.

The High Court has confirmed an individual’s wishes are not the same as their needs and their wishes are not the paramount consideration. A council must have ‘due regard’ to an adult’s wishes as a starting point, but social workers are entitled to exercise their professional skills and judgement in deciding how to meet eligible needs. (as for example was done in the case of R (Davey) v Oxfordshire County Council [2017] EWHC 354 (Admin))

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The full report can be found at: