Decision date: 28/01/20
Mr Y is on the autistic spectrum and lacks mental capacity. He lived with his mother, Mrs X – however, nobody holds a power of attorney for him.
He had previously lived with his father, Mr X, who provided his care and support before suffering a stroke which left him disabled.
Mrs X suggested respite care to facilitate some breaks in her care responsibilities. The Council assessed Mr Y’s needs and offered short visits and short overnight stays, supported by a familiar face from his day care service.
The Council claimed that some of these stays were successful. However, Mr X strongly disagreed and said that his son was experiencing anxiety as a result of the respite care. Mr Y told staff himself that he did not wish to attend. The Council said that as well as Mrs X being in favour of the respite care, it believed that it was in Mr Y’s best interests to start decreasing his dependence on family.
Mr Y left the respite care centre and walked to his father’s house 4 times in the second half of 2018. This journey included several busy roads and as Mr X believed Mr Y was at high risk of harm as he lacks mental capacity.
The Council referred Mr Y to an independent advocacy service and declared a safeguarding concern. The advocate said Mr Y was clear that he did not want to attend the respite care and Mr X refused to return his son to the home. The Council decided not to arrange any more respite care.
Mr X complained to the Ombudsman about Knowsley Council’s failure to properly provide support to his son. He also asked if it would reassess its decision to prevent him seeing his son alone without having a care worker there to manage risks.
What was found
The Ombudsman found Knowsley Council at fault for not referring Mr Y to an advocate sooner as he lacked capacity and his parents were of clearly conflicting opinions. Not fully understanding Mr Y’s wishes left him distressed and at risk of harm.
Mr X was clearly an individual who had an interest in Mr Y’s welfare and well-being. However, there was no evidence that the Council properly requested or considered information from him and this was fault.
The Council’s own complaints procedure had found no fault in its handling of the case.
These faults caused Mr X and Mr Y an avoidable injustice and risk.
Knowsley Metropolitan Borough Council agreed to
- Write to Mr X apologising for the distress it caused and confirming that it will include him in future decisions about Mr Y’s care
- Pay Mr X £500 on behalf of Mr Y
- Consider Mr X’s invitation to re-assess any risks arising from Mr X’s medical conditions preventing Mr Y spending time alone with Mr X.
Points for the public, families, advocates and councils
The LGO’s investigator had to grapple here with the way that the MCA framework should, by now, have become part and parcel of care planning – but has not – within some local authorities.
Care planning that involves anything comprising restraint or the imposition of a regime on someone that they do not seem to welcome raises MCA issues, which no council or provider can fail to grapple with, if they wish not to be sued for assault. Compliance with the MCA is the only way to acquire that cloak of legal protection that s5 of the MCA provides. It is not planning care that triggers MCA issues; it’s implementing a care plan, which a council does through a third party, that could constitute an assault, if it is NOT properly decided as being in a person’s best interests.
Secondly, advocacy is there to help people who will struggle with engaging with Care Act processes, to be heard. The Care Act says that it is a duty and must be provided in certain situations – and then provides for exceptions (where one has someone willing to do it informally and one consents to that happening). There is an exception to that express exception in the Act that one is not owed a DUTY if one has appropriate and willing informal relatives to support one’s participation for free, in the following situation: where there is a material disagreement between one’s natural supporters and the council in relation to a person with substantial difficulties in engaging:
4.—(1) The exception in section 67(5) of the Act does not apply in the circumstances specified in paragraphs (2) and (3).
(3) The circumstances specified in this paragraph are that—
(a) there is disagreement on a material issue between the local authority and the person referred to in section 67(5) of the Act in the case of the individual; and
(b) the local authority and that person agree that making arrangements under section 67(2) of the Act in relation to the individual would be in the best interests of that individual.
This is a difficult structure: an exception to an exception to a duty, where the exception to the exception only applies if two things coincide: the disagreement, and the agreement on the part of the disagreeing informal supporter that having an independent advocate would be in the best interests of the person! That seems to imply that if that agreement is not forthcoming, the exception to the exception does not apply, and thus the existence of the disagreeing relative as the supporter, with the consent of the person with substantial difficulties, would prevent entitlement to a funded advocate.
In that situation, we advise councils to check that the cognitively impaired person understands that they can choose not to consent to their relative acting for them, in that supporting role, or, if there is no possibility of obtaining that consent they can regard the person as entitled to an advocate in any event OR able to regard the disagreeing relative as not appropriate any longer, so that the person is entitled to an advocate in any event.
Here, where it was agreed that the person despite having strong wishes and feelings was someone who did lack capacity, the two best interests consultees were not agreed on the plan for respite, and the father was therefore in the situation in the regulations above.
There should have been an advocate appointed from the very beginning, not just once there was a safeguarding concern, under the Care Act.
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The full Local Government Ombudsman report on the actions of Knowsley Metropolitan Borough Council can be found here: