Decision date: 28th August 2020
What Happened
Mr X complained on behalf of his brother Mr Y.
Mr Y has learning difficulties and autism. He lived in supported living accommodation with 1:1 support during the day and a member of staff available at night time, a placement authorised by the Court of Protection. Mr Y’s family visited weekly and his needs assessment included the importance of his relationship with his family.
In November 2018 Mr Y’s behaviour deteriorated. A significant incident occurred where he harmed a member of staff, which resulted in the provider deciding it could no longer meet his needs and health professionals assessing he should be detained under S.2 of Mental Health Act 1983 (MHA) [admission for assessment].
The NHS Learning Disability Nurse (LD nurse) sought a specialist learning disability placement for Mr Y and identified a secure hospital placement in Yorkshire. It was explained to Mr Y that this was a short term placement until longer term options were organised.
In December 2018, the consultant psychiatrist rescinded the Section 2 MHA authorisation [for unknown reasons] and the hospital applied for an emergency Deprivation of Liberty Safeguard (DoLS), under the Mental Capacity Act 2005, followed by a formal DoLS application. A paid Relevant Person’s Representative (RPR) was appointed to advocate on his behalf.
Mr X told the Council in February 2019 that he wanted to start looking for placements for Mr Y and in March the Social Worker told him that the hospital had completed a service specification they would use to identify placements.
In May 2019, the Social Worker agreed to complete a pen picture and support plan and then started to investigate possible vacancies and placements. The Social Worker spoke with Mr Y twice in June, on each occasion Mr Y said he was happy but asked when he would be moving.
In July, Mr X was emailed with possible options that had been identified, including a placement in Liverpool. Soon after, Social Worker A went on long term leave, so the LD nurse agreed to be the main point of contact for Mr X.
The RPR advocate called the Council in August 2019 and said the Social Worker was supposed to be finding Mr Y somewhere else to live by September and they wanted to know who was taking over and what was going to happen.
In late August 2019, the Council allocated Social Worker B to Mr Y’s case. Social Worker B tried to arrange to meet the LD Nurse, who was not available, and spoke with the secure hospital, who said they had not heard anything recently about proposed move-on accommodation. The SW also spoke to Mr X and said they would chase up the providers who had previously been contacted; Mr X said that the family wanted Mr Y to live close by, and that Liverpool and Manchester would be their least preferred options. Notes from then show that Mr X was frustrated with the time taken to move.
The RPR spoke to Social Worker B in September 2019 and highlighted their concern with the length of time Mr Y had been in hospital. Social Worker B spoke to the LD Nurse who had identified a space in Liverpool but not anything more local. Social worker B updated Mr X who still did not want Mr Y moving to Liverpool.
In mid-September 2019, Social Worker B met with Mr Y and noted that he asked several times if he could leave the hospital and where he would be moving to. Social Worker B contacted Mr X about arranging a multi-disciplinary meeting to discuss Mr Y’s options for moving on, at which time the hospital reported Mr Y was getting more anxious about the potential move. The meeting was arranged for early November 2019.
Social Worker B arranged to meet with the LD Nurse in October 2019 to identify other potential properties for Mr Y. Later that month, the LD Nurse handed over the case to a colleague, LD Nurse 2.
In early November 2019, Social Worker B met with LD Nurse 2, the hospital manager and a representative of the NHS specialist support team, but Mr X was unable to attend. They noted Mr Y was stable and engaging positively, but that his main focus each day was about when he would be moving on. LD Nurse 2 agreed to contact another provider about potential properties that may be available and confirmed it had availability in two locations, before going on to identify another potential placement with another care provider in the area.
In mid-November, Social Worker B met with X and discussed the proposed placements; Mr X explained that he was struggling, with the pressure of getting Y moved affecting him and visiting Mr Y at weekends taking a large amount of his day.
In December 2019, the two care providers arranged to assess Mr Y and then confirmed they each had a placement suitable for Mr Y; Social Worker B emailed Mr X to confirm that there were three available options – the two local placements recently identified, and the previously identified placement in Liverpool.
In late January 2020, Social Worker B arranged a best interests meeting to discuss the placements, which was attended by the hospital manager, LD Nurse 2, the Specialist Support Team Nurse and the family. Since the RPR did not attend, no decision was made [although not mentioned in this part of the report, it later transpired they were not invited].
Mr Y wanted to visit the two local placements and the hospital manager arranged for him to do this. He was happy with both placements but expressed a preference for one of them.
In early March 2020, Social Worker B visited Mr Y with his RPR to discuss the two options and they agreed Mr Y could try the bus journey between each location and his family’s home to understand their locations and the distances involved.
At the time of the Ombudsman’s report, Mr Y had not yet moved, however the report does not say why this was.
What was found
Mr Y’s stay in hospital was meant to be short term. The Council’s delay in finding him suitable long-term accommodation was fault.
The Ombudsman acknowledged that as there were multiple parties involved in supporting Mr Y there were unavoidable delays due to difficulties in co-ordinating diaries and arranging meetings that all parties could attend. The Council started looking for suitable alternative accommodation in March 2019, but over a year later, Mr Y was still in the secure hospital, having previously indicated that it was likely to have found somewhere by September 2019. The change in social worker caused some delay, then there were further delays in exploring alternative options, other than the Liverpool placement.
When the Council arranged a Best Interests Meeting in February 2020 [the Ombudsman refers to the meeting being organised for January 2020 earlier in the report, so one of these dates must be incorrect] the RPR was not present and there is no evidence to show he was invited. The failure to include the RPR at the meeting was fault, and added to the delay.
From June 2019, the records showed Mr Y had repeatedly asked when he would be moving and the delay was causing him distress; Mr Y had to spend far longer than necessary in a secure setting which was a significant distance from his family and Mr X was also frustrated by the delay. The delay in arranging a suitable placement also caused them avoidable inconvenience and cost as they had to travel a significant distances to maintain their regular visits to Mr Y.
The LGO recommended the Council:
- Ensure it is their priority to find Mr Y long term accommodation as soon as possible
- Pay Mr Y £1000 to acknowledge the distress and anxiety caused by the delay
- Pay Mr X £500 to acknowledge the extra expense, distress and inconvenience caused by the Council’s faults
Points to note for councils, professionals, people who use services and their carers, advocacy providers and members of the public
Sadly, the lengths of stay that individuals with learning disabilities and autism have in hospital settings is often far too long and driven by factors other than their actual needs.
We at CASCAIDr understand that there are shortages in the care market, however we do not accept that where an individual needs round the clock support, that hospital is the best option for the person where their needs have clearly been assessed and the individual is dependent on councils or ICBs to source their future accommodation and support. It can clearly potentially do harm to the individual, including by making them more institutionalised and less independent.
Mr Y had an initial admission for assessment under s.2 of the Mental Health Act 1983, an admission for most individuals that results in them leaving hospital prior to the expiry of the section. However, his section was removed, and we see other legislation being used to enable him to remain in hospital but not under section. It is clear then, that he didn’t need treatment under s.3 MHA and the deprivation of liberty was really used for his safety – probably because there was nowhere suitable for him to go.
The Council simply took far too long to find him a suitable setting in which to live. There have been delays because his representative was not invited to an essential planning meeting and delays because of the inadequacies of the council in sourcing support. Councils have a responsibility under s.5 of the Care Act 2014 to ensure that they have commissioning arrangements that will respond to the needs of the people they have responsibility for supporting. There was no suggestion of the role of Housing in this sequence of events, or whether Mr Y’s needs were such as to trigger a duty actually to provide accommodation under the Care Act.
We are left wondering what the future position was for Mr Y and many others who still find themselves stuck in hospital inpatient settings alongside people who are unwell. Mr Y does not need to be in hospital yet remains in such a setting. We have seen failings in those settings such as with Winterbourne View reported by Panorama and the Government has introduced the ‘Transforming Care Programme’ in response to ensure that only people who really need to be in hospital actually receive their care there. It seems that despite the good intentions of such initiatives, people such as Mr Y continue to be at the mercy of councils to find suitable and safe options in their local community and are left languishing in secure accommodation which is not only unsuitable but detrimental to their long term wellbeing.
Despite the financial recommendation from the LGO, we know that the LGO could not force the Council to find an option for Mr Y. We are glad though, that the Council was required to provide the LGO with an action plan within one month, setting out what exactly it intended to do in order to secure a suitable provision for meeting Mr Y’s needs. We would therefore encourage those living in such situations or their family members to consider the use of the LGO, once council complaint processes have been exhausted.
If this is the way forward for s2 people with only Care Act rights, this must also be the way forward for people on s3 with s117 rights to aftercare. Best endeavours may be the extent of the duty under s117, but it is an enforceable one sounding in judicial review proceedings, if the Ombudsman route is not thought appropriate.
The full Local Government Ombudsman report of Lancashire County Council’s actions can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/19-012-043