Decision Date: 10 April 2023
What happened
Ms W complained to the Ombudsman on behalf of her son, Mr D, who lives with a developmental disorder and has significant care and support needs. Mr D turned 18 in October 2020 and his services began to transition between the Council’s children’s services and adults’ services.
The Council initially sought a new education placement for Mr D, but Ms W requested that they also seek a supported living setting for him, as she wished for him to move out of the family home.
A supported living placement began in October 2022; however, Ms W complained that this should have started sooner. Ms W said that she believed the delay was due to the Council being unable to provide a consistent Social Worker during this time, including a period of time when Mr D had no allocated worker. She further complained that the Council was too focused on the costs of the services AT the settings, and not Mr D’s needs. The Council said it identified 25 different supported living options and presented these to Ms W, who turned them down saying they were unsuitable for a variety of reasons [there is no detail in the report as to whether the Council agreed or not].
Once a suitable setting had been identified, the Council completed a mental capacity assessment to determine whether Mr D had capacity to decide where he should live. Mrs D complained that this assessment was unreliable as it took place at a time when Mr D was ‘emotionally dysregulated’. Immediately prior to the assessment, which took place at Mr D’s school, he was involved in an incident which led to him being restrained by staff.
Ms W further complained that she was unable to attend the assessment as the Council could not provide a Social Worker to complete this on a weekend. The Council responded to Ms W’s complaint advising that it could not make a social worker available outside of business hours and that it did not share her concerns about the reliability of the assessment.
The mental capacity assessment found that Mr D lacked capacity to make decisions about where he should live. A best interests decision meeting was convened, but Ms W said she was not invited to this. The Council’s notes identify that Ms W was invited to attend but did not respond, because of which it decided that a meeting would ‘serve no purpose’ and no meeting went ahead.
What was found
The LGSCO found no fault by the Council regarding the delays in the process of arranging a supported living option for Mr D when transitioning from children’s to adults’ care services. Whilst agreeing it was a lengthy process [taking approximately 15 months] it found evidence that the Council had been proactive in its efforts to identify a suitable option, identifying 25 in total, which were declined by Ms W.
The LGSCO determined that it was Ms W’s prerogative to decide whether she felt the placements suggested by the Council were suitable or not. It did however acknowledge the limited number of placements available and did not criticise the Council for not being able to identify a placement that was to Ms W’s satisfaction.
It was noted that, whilst it was not ideal that Mr D was allocated to several Social Workers during this time, this did not amount to poor management by the Council. The Council cited the reasons for this as staff leaving or being sick and the LGSCO found this to be inevitable, given the time it took to find an acceptable option, and agreed that the Council had no alternative but to reallocate Mr D’s case.
Additionally, the LGSCO found no fault in Mr D’s case being ‘de-allocated’ for a time, and found no evidence that this caused any significant delay in finding a placement. [We must also consider the timeframe of this: early 2021 to May 2022, a time when local authorities were experiencing additional pressures on staff and resources due to the COVID-19 pandemic].
Ms W complained that the Council focused on the cost of potential service packages above Mr D’s assessed needs. The Council had a duty to meet the needs of the people it must serve alongside the best use of limited resources, as well as make best interests decisions, and the investigator here regarded it as right that it sought to achieve the best value for money it could find, balanced with meeting Mr D’s care needs. However, the only evidence of the Council considering the cost of the placement was once the final option on offer was agreed by all parties and negotiations with the provider were undertaken. These negotiations resulted in a significant reduction in price, and were found to have only taken approximately one week, and did not elongate the process unnecessarily, considering the previous delays. The LGSCO found no fault in this element of the complaint.
The LGSCO also found no fault in how the Council carried out a mental capacity assessment for Mr D. It is for Councils to decide how they manage their resources and, whilst Ms W’s request to have the assessment completed on a weekend was considered, Southwark was unable to facilitate this as its staff work traditional office hours. This was not fault. It further considered Ms W’s complaint that Mr D was unsettled immediately prior to the assessment but deferred to the assessor’s notes and professional judgement that Mr D was ‘calm by the time she arrived’ and that the assessment could be relied upon.
The LGSCO did, however, criticise the timing of the mental capacity assessment, which took place after a lengthy process to identify a suitable placement. Given that a potential outcome of this assessment was that the presumption of Mr D’s capacity to decide where to live, might not be rebutted, in which case he could not be made to live somewhere where he did not want to live, or sign a tenancy in any such place, it would have been logical [and more legally literate] – to complete this prior to the Council seeking to facilitate a tenancy – without which he could not contract for tenure, at least not without a deputy. This was not found to be fault, but could have rendered the Council’s efforts in finding an option a waste of time.
Ms W’s final complaint was that the Council failed to invite her to a best interests meeting following the mental capacity assessment. Evidence was noted by the LGSCO that the Council did invite Ms W to a meeting via email on 13 July 2022, but that no response was received. The meeting then did not go ahead. The Council acknowledged that it should have followed up its invitation with additional contact with Ms W, but that it could see no benefit in arranging a meeting now.
The LGSCO therefore found fault with the Council for failing to hold a best interests decision making meeting. It could not say that the outcome would have been any different for Mr D, but that this caused uncertainty for Ms W, amounting to injustice, and made the following recommendations:
- The Council is to arrange a review of Mr D’s mental capacity assessment.
- If the outcome of this is that Mr D is unable to make decisions about where he should live, the Council will arrange a best interests decision meeting, to include all relevant parties.
- The Council will remind all relevant staff of the legal requirement to follow the best interest principle, and what it expects this to look like in practice.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
The LGSCO stated in the report findings that ‘’It was entirely Ms W’s prerogative to decide whether she felt a placement was right for Mr D’’. However it makes no mention of whether she held Deputyship or Lasting Power of Attorney (LPA) for Finance and Property or for Health and Welfare, and therefore was the right person to be making this decision.
Indeed, given that she was not regarded as the final decision-maker, by any of the parties or the investigator into Southwark’s process, we must presume she did not have LPA.
But there is no detail in the report as to how the ‘placement’ was MADE in terms of security of tenure, a licence or a tenancy. Nor any mention of the fact that councils do not PROVIDE supported living at all: they just buy the services that are rendered effectual by dint of the person’s being facilitated into a tenancy, in the vast majority of cases, in the end. Adult Social Services departments do not PROVIDE housing as part of the package, although housing is needed as a precondition for the service delivery to make any sense.
It should not require to be stated this long after the MCA has been in force that best interests decisions are not sufficient to secure a tenancy as a matter of contract law as between occupant and householder.
We think that this report mixes up those types of decisions for which a best interests decision is essential to provide legal cover for anyone implementing a decision taken on behalf of a person lacking in capacity on the specific issue, where there consent would otherwise be required, ie touching restraining and deprivation of liberty and information sharing – and another type of decision altogether, relating to finance or property, contracts and arrangements involving agreement, such as tenancies, where a best interests decision is of no effect at all in constituting a valid and binding agreement.
What needs to happen for supported living tenancies (not ‘placements’ with all due respect to those concerned) is that an MCA decision about capacity must be made first, by the decision maker, and that will depend on the issue and the existence of anyone else with legal authority to make the relevant decision. Thereafter, there needs to be a best interests decision as to the nature and extent of services and restrictions required – in a setting secured by someone with actual legal authority – a deputy or an LPA exercising their OWN best interests decision-making powers and obligations – or the Court of Protection making a substitute decision under its specific authority so to do, if no such person exists.
None of this is explained by the report, and we think it conveys an impression of superficial awareness of the legal framework, on the part of the investigator.
The full Local Government Ombudsman report on the actions of London Borough of Southwark Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/transition-from-childrens-services/22-011-943