Decision date: 28/11/19
Mr Y is an adult diagnosed with ADHD and mental health problems and also with a history of substance abuse. He spent a considerable amount of time in a neuropsychiatry rehabilitation inpatient unit after he suffered a brain injury in August 2016 which left him with memory loss problems and difficulties performing every-day tasks.
Mr Y was discharged from the unit in August 2017 to an accommodation provider, Cherrytrees. He had previously been detained under Sections 2 and then 3 of the Mental Health Act 1983 and was therefore entitled to free s.117 aftercare.
In late November, Mr Y was shown a copy of his care plan which caused him a great deal of upset. He reacted aggressively enough for the Cherrytrees to call the police and immediately end his placement. However, Mr Y’s care coordinator intervened and Cherrytrees allowed Mr Y to remain at the accommodation until he had found a new placement, which he did in late January 2018.
His mother, Miss X, complained to the Ombudsman after she had complained several times to both the landlord and the Council and had received responses that contained confusing information that she believed to be false and potentially damaging to her son’s future. She complained that Cherrytrees failed to provide Mr Y with the support necessary to participate in meaningful daily activities, or even that which had been outlined in his care plan. There was no evidence that Cherrytrees provided Mr Y with a clear daily routine to help structure his day.
Mr Y soon fell into an unstructured daily routine of spending time in his bedroom in the morning and wandering town in the afternoons and evenings, often alone, sometimes visiting pubs. While Mr Y had declined community support for alcohol use, and could not be forced to engage, it would have been reasonable for the staff to continue to encourage Mr Y to avoid alcohol and attempt to steer him towards some more productive activities instead. The LGO said that that was contrary to his care plan and therefore fault.
She also complained about the manager of Cherrytrees, who she believed had been dishonest and had communicated poorly about her decision to evict Mr Y.
What was found
The Ombudsman referenced the care plan created by Cherrytrees for Mr Y in November 2017 as evidence that the provider was certainly aware of his brain injury and the effect it has on his behaviour.
The s.117 Mental Health Act Aftercare Plan that Mr Y was discharged from the inpatient unit expressed clearly that he needed structure, routine and a lot of staff support to access the community. However, the support actually provided to Mr Y during his stay was irregular. Records show very little evidence of any daily support after the first 6 weeks. He began drinking again and his behaviour worsened. Daily care records suggest that the provider did little to prevent this increased drinking. The Ombudsman found Cherrytrees at fault for not continuing to encourage Mr Y away from alcohol and for failing to provide him with a clear daily routine.
The provider was also at fault for failing to complete Mr Y’s gym membership and was responsible for the resultant stress caused to Miss X as she attempted to resolve to matter.
The Ombudsman felt that the three months it took to complete a care plan for Mr Y from the point of his moving in, was far too long and was fault.
When it was finalised, it was shared with Mr Y. A section of the plan recorded with great detail every single behavioural incident involving him and this is what caused him the distress.
The Ombudsman thought that although it was sensible to record potential risks relating to Mr Y’s behaviour, the comprehensive list was unnecessary.
Furthermore, the way in which Cherrytrees decided to share Mr Y’s care plan with him was contrary to the advice given in his s.117 aftercare plan that complex information should be shared with him clearly and concisely to help alleviate his anxiety. He was invited to a meeting to discuss the plan but he declined and was then allowed to read the 12 page plan (including detailed criticisms of his behaviour) alone in his room.
The Ombudsman could not find evidence that the stay had actually worsened Mr Y’s mental health.
Miss X was given inconsistent information about the decision to evict her son. In a complaint response, the Cherrytrees manager attempted to shift the blame onto the Council by saying he had merely advised the Community Mental Health Team about the risk and suitability of the placement. However, records kept by Mr Y’s care coordinator confirm that it was the manager who had been in contact to serve Mr Y’s eviction notice. Supplying Miss X with false information caused her confusion and frustration and was fault by the provider. Additionally, the Council admitted its fault in failing to ensure that Miss X was not left out from ongoing meetings between Mr Y’s care coordinator and Cherrytrees.
Cherrytrees’ claim was that it was Mr Y’s behaviour preceding the care plan incident that had affected their eviction decision. There is little evidence that any steps were taken by the provider to address his behaviour prior to the incident. Cherrytrees failed to discuss the decision to evict her son until a week after it had approached the CMHT directly. The provider admits that the manager chose not to return Miss X’s calls on at least one occasion as he had ‘nothing further to add’ which is poor service and clearly fault that has led to injustice.
Cherrytrees’ complaint response
The Ombudsman felt that there was fault in Cherrytrees complaint response in February 2018. It went into unnecessary detail about Mr Y’s criminal and medical history, sometimes as an alternative to actually addressing the complaints.
The Council’s complaint response
The Council declined to comment on several aspects of Miss X’s complaint, including the interactions between her and the manager. It failed to take a view on a plethora of Miss X’s points. It said it couldn’t access the records held by Cherrytrees. The Ombudsman declared this as unacceptable as the Council was a joint commissioner of the service and should have demanded to review Cherrytrees’ records in order to reach a decision.
The Council and the CCG will, within one month:
- Send a written apology to Miss X and Mr Y, acknowledging any fault mentioned.
- Pay Mr Y £500 in recognition of their failure to provide support in line with his care plan and for the distress that this caused.
- Pay Miss X for her inconvenience
And within three months, ensure that all of the care providers acting on their behalf under s.117 conduct a review of their policies and procedures and how they comply with law including the Code of Practice: Mental Health Act Code 1983, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the Care Act 2014.
Points for the public, s117 users, families, advocates, s117 care planners
Cherrytrees is ambiguously referred to in this report as a supported accommodation provider, with 24 hr support, and the arrangement was referred to as a placement, not a tenancy. It is unclear whether that was in fact the situation.
If an accommodation provider is also providing personal care, which includes prompting together with supervision in relation to personal care, then there is a likelihood that the place is running as an unlawfully unregistered care home. For that reason, many providers insist on a tenancy, (or, if it really was a placement, which is consistent with giving only 24 hours’ notice but no more lawful), or insist that they do not prompt TOGETHER with supervision; they just prompt OR supervise.
When he drank excessively, the report suggests that he was told it was a breach of his tenancy; and the discussion of eviction is consistent with it being a tenancy, and not a placement (ie a right to occupy that accommodation, but paid for by the commissioners), inconsistently with other upheld complaints from the LGO in reports involving Solihull and Lewisham, recently, where the need for a placement rather than a tenancy was stressed by the LGO investigators, when it was specialist housing that was required for the success of the aftercare services package.
So the report needed to have been quite a bit more explicit, we think.
The demand on the part of Cherrytrees was that the man leave within 24 hours, which is of course unlawful, under the Protection from Eviction legislation, for anyone who occupies premises as their home, but the investigator said nothing about that, which is another weakness in the handling of the matter.
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The full Local Government Ombudsman report on the actions of Surrey County Council can be found here: