Decision date: 19 May 2024
Summary: The LGSCO investigated a complaint made in relation to the support provided to an adult, after the adult’s mother and main carer passed away.
It found that the Council had failed to follow the Best Interests decision-making process in line with the Mental Capacity Act 2005 and make a clear record of the decisions and rationale.
The Council was also at fault for not appointing an independent advocate in good time, for not following up on the decision regarding who should apply for deputyship, and for not reconsidering the need for bereavement services earlier.
The Council agreed to the LGSCO’s recommendations to apologise for its failings, and to pay a financial remedy of £600, and carry out service improvements.
What happened:
This report concerns Mr Z, who has a physical disability and has been assessed as lacking mental capacity to make decisions in a number of areas, including decisions about his care and property and finances.
Mr Z was living at home with his mother, who was also his main carer and appointee for benefits. He received 28 hours of care per week from a council-funded care worker who attended his home; his mother had provided wrap-around care at evening and weekends. He also attended a day service for one day each week.
A complaint was made in January 2023 by Ms T (a friend of Mr Z), stating that the Council failed to ensure suitable support was in place for Mr Z when his mother died.
The key events in this case were as follows:
In November 2022, Mr T’s mother died suddenly. Emergency services made a referral to adult social care for Mr Z.
On the same day, the Council took an urgent decision that Mr Z had significant care needs and lacked capacity. They moved Mr Z into a residential care home for temporary respite. They also increased the time he spent at the day service since Mr Z was familiar with staff there.
Mr Z’s father (Mr X) lived abroad and, upon being informed by Mr T’s relatives of the situation, started to make travel arrangements to move to the UK as he wanted to support his son.
In the meantime, since relatives were unable to provide ongoing care for Mr Z, the Council took a best interests decision that Mr Z’s urgent care and living arrangements in respite would continue for two more weeks.
At the end of November Mr T returned home and the Council arranged 24 hour live in care to be provided by care provider Kumari Care. The social landlord agreed thar Mr Z could remain in the property pending a deputy being put in place to manage the tenancy, as he did not have capacity to manage this himself.
Mr X was now living with his son Mr Z and sleeping on the sofa.
It was at this time that the social worker assessed Mr Z’s wishes regarding Mr X being his main carer and living with him, concluding that this was a complex decision that Mr Z was struggling with and which he did not have capacity to make. There was no deputy to make the decision as to who should even have access to the property.
In mid-December 2022 the social worker carried out a mental capacity assessment and recorded that Mr Z lacked capacity to make a decision about who should live with him and be his main carer, and that ‘a decision’ would therefore be made in his best interests. However, the Council record did not make clear what best interests decision was taken. Mr X continued to live with and provide informal care to Mr Z.
Ms T helped Mr X apply for appointeeship and Mr Z’s benefits resumed after three months of non-receipt, due to delay at the DWP.
In January 2023 a referral was made for Mr Z to have an independent advocate.
Between November 2022 and February 2023, whilst Mr Z was supposed to be receiving 24 hour care from Kumari Care, there were concerns that Mr Z was not receiving the medication he required.
On 23 February 2023 the Council carried out a comprehensive care needs assessment. No advocate was included in this assessment. The assessment found that Mr Z needed support to meet multiple outcomes under the Care Act.
The Council decided to reduce the care package being provided to Mr Z due to support being provided by his Mr X. The Council also advised Mr X to apply for deputyship as he wanted to manage his son’s affairs.
In late February 2023 the live-in care package with Kumari Care was terminated and Mr Z received 4 hours of care each day from another care provider.
Ms T complained that the Council had failed in a number of areas, including failing properly to consider his mental capacity or who would be a suitable representative for him; failing properly to consider his care needs and how and these needs should be met; and failing to ensure adequate care was delivered by the care provider.
Ms T also complained that the Council failed to ensure that his finances were in order; that no mental health and bereavement support was provided; and failing to investigate her complaint in a timely manner.
What was found:
The LGSCO found that the Council had acted appropriately in sourcing an urgent residential placement for Mr Z and increasing his hours at the day care service to provide some consistency to him. The Council also acted promptly in considering alternatives to residential care for Mr Z.
However, the Council had failed to carry out a proper care needs assessment before deciding that long term residential care was not a suitable long term option, and neither did it follow the necessary Best Interests process when making this decision – there was no explanation of the Council’s reasons for the decision and the other options that it had considered.
The Council was at fault for the delay in carrying out the needs assessment, which took place 3 months after the Council first became involved with Mr Z. This delay also caused uncertainty about whether a less restrictive care package (less than the 24 hour care that was put in place) could have been implemented sooner.
The LGSCO found that the Council has conducted mental capacity assessments appropriately in respect of where he should live, with whom he should live with, and who should represent him.
However, the Council had failed to record the subsequent best interest decisions made on Mr Z’s behalf.
The Council was at fault for not appointing an independent advocate sooner.
These failings caused Mr Z uncertainty about whether the Council had properly considered what was in his best interests in response to the need for several key decisions and it warranted a financial remedy at the higher end of the LGSCO’s scale.
Although the Council has considered bereavement support shortly after Mr Z’s mother had died (and at that time the Council decided to prioritise a consistent routine), the Council was at fault for taking several months to reconsider this and for letting this matter drift. This caused uncertainty about whether he could have accessed bereavement support earlier.
In respect of the alleged poor standard of care, the LGSCO’s review of the evidence found that it was likely Mr Z had medication missed during this time. However, there was insufficient evidence to establish exactly what happened in able for the LGSCO to come to any finding on the other allegations of poor care.
The LGSCO recognised that the Council wanted Mr X to have the opportunity to apply for deputyship and it had been asserted that Mr X had failed to follow through on doing so. As the ultimate decision-maker in respect of Mr Z’s care and support services, the LGSCO considered that the Council failed to make a clear decision regarding deputyship after assessing Mr Z to lack capacity in this area, and had let the matter drift instead of giving Mr X a clear timeframe in which to make the application [– the default position being that the council can and is told under the Care Act Guidance that it should apply, where holding property may be key to a care package – and of course a tenancy must be held by an authorised person.]
Finally, the Council was also at fault for failing to deal with Ms T’s complaint in a timely manner.
The Council agreed to the LGSCO’s recommendations to apologise for its failings, pay a financial remedy of £600, and carry out service improvements.
Points to note for councils, ICBs, professionals, people using services and their carers, advocacy groups, members of the public
Care Act Assessments and Participation
Section 9 of the Care Act 2014 requires LAs to carry out an assessment for anyone who appears to have needs for care and support. This assessment is required to determine what type of care and accommodation is required.
Although the Care Act 2014 does not specify the timeframe within which assessments should be carried out, it is important that they are carried out in a timely manner taking into account the circumstances of the individual. The LA should consider the potential risk and impact of scheduling anyone’s assessment. The Statutory Guidance states the following about timescales:
6.29 An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Local authorities should inform the individual of an indicative timescale over which their assessment will be conducted and keep the person informed throughout the assessment process.
If an adult has an urgent need, Section 19(3) of the Care Act 2014 gives LAs the power to meet these urgent needs without even having completed an assessment.
The LA must involve the adult and any carer in the assessment process, and has a duty to arrange for an independent advocate to support the adult where it considers that the adult would have substantial difficulty taking part in the assessment (as per Section 67 of the Care Act 2014) and has nobody else to step up to support participation informally.
The Statutory Guidance states the following in respect of independent advocates:
6.34 If a person does have substantial difficulty, the local authority must find someone appropriate and independent to support and represent the person, for the purpose of facilitating their involvement. This should be done as early as possible in the assessment process so that the individual’s involvement can be supported throughout all stages of the process. Individuals may require help to understand information provided, assistance in weighing up the information, and support in communicating their wishes and preferences.
Where there is a family member or friend who is willing and able to facilitate the person’s involvement effectively, and who is acceptable to the individual and judged appropriate by the local authority, they may be asked to support the individual in the assessment process.
Where there is no one thought to be appropriate for this role – either because there is no family member or friend willing and available, or if the individual does not want them to be a part of the assessment – the local authority must appoint an independent advocate.
The report says nothing about any decision being taken about Mr X, in terms of willingness or appropriateness, but he had been told by the landlord that he could take the tenancy over for his son, if he got deputyship, it seems.
Best Interests decisions
Where there are doubts about the adult’s capacity, and an action involving care or treatment which attracts the need for protection under s5 of the Mental Capacity Act if the person in respect of whom it will be taken as part of the delivery of care does lack capacity, it will be necessary to carry out a capacity assessment in accordance with the Mental Capacity Act 2005.
When a LA acting within the scope of the Care Act determines that the adult lacks capacity to make decisions on specific matters that will need to be made with regard to the LA’s proposed care plan, it would be for the LA to make a best interest decision on the adult’s behalf in the absence of anyone else having legally authority to refuse consent.
Unless there is a possibility that the adult may regain capacity in a certain area (which does not appear to be the case for Mr Z), the decision being made in a person’s best interests on their behalf should be carried out promptly following the capacity assessment.
Where there are decisions that need to be made are nothing to do with the decisions needed under the Care Act, or not ones which attract the need for protection under s5 or are otherwise decisions to be taken through some other existing form of authority to make them (i.e. through an LPA or deputyship or trusteeship, appointeeship or guardianship) then those decisions may be relevant or essential to setting the context for the care plan.
Here, if no deputyship appointment was implemented, the house in which Mr Z was living would not offer secure accommodation, and the whole plan would have been dependent on the landlord’s willingness to take rent without any tenancy terms or conditions. The council is able to take up deputyship on behalf of a person with a right to remain in property under the rules about inheriting a tenancy and should have thought to do so much sooner, in our opinion, when Mr X did not take steps.
The ombudsman says nothing about this distinction. There are plenty of outcomes that cannot be validly effected in legal terms, merely based on a best interests decision. The signing of a tenancy is one of them.
The decision whether or not to take deputyship is not a best interests decision at all, either. Leaving someone without one, if there is nobody else to do it or seemingly willing to, is a decision that should be made under the public law governance framework: ie focusing on rationality first and foremost – the relevant consideration then being ‘…If WE don’t do it, what will happen? And will that stop us from providing a decent care package / charging for it / protecting the person from abuse or neglect?’
Section 4 of the Mental Capacity Act 2005 requires that the best interests decision takes into account the adult’s wishes and feelings as well consultation with those interested in the adult’s welfare.
Best interests decisions should be clearly related to specific issues that need to be decided by decision-makers acting within the scope of the specific functions they are responsible FOR. This entails identifying all the options that are available to an adult in the situation of Mr Z.
Best interests decisions must also be recorded formally and a rationale should be provided. In this case, the Council, as the decision-maker in a limited sense in this regard, fell short in both of these requirements.
If you are affected by the issues in this report, please consider asking us a free One-off Question, at a level of principle, here.
The full Local Government Ombudsman report on the actions of Devon County Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/23-004-795