Decision Date: 6th October 2024
Summary
Mr X complained the Council failed appropriately to manage the care needs of his adult son, Mr Y. Additionally it failed to support him and Mrs X (Mr Y’s Mother) in their role as carers.
Failure to determine Mr Y’s mental capacity whilst refusing someone else’s view he retained capacity, meant his care plan was not updated and therefore Mr Y’s needs were not met and his parents were required to provide additional unsupported care.
What happened
Prior to an assessment of his care needs in July 2023, Mr Y received direct payments to fund 15 hours of personal assistance a week which was increased to 30 hours during holidays, when his educational placement was not functioning.
The July assessment recognised that Mr Y needed social and mental health support and would be unable to manage his own finances. Mrs X managed these on his behalf.
When completing its assessment of Mr Y, the Council recorded that Mr and Mrs X were unable to continue to provide the high level of care that was required in all areas of Mr Y’s life.
This was partly due to Mr Y no longer attending an educational placement. The Council concluded that the hours of support Mr and Mrs X provided could not be sustained in the short or long term.
The re-assessment recommended that Mr Y’s direct payment should include 50 hours of one-to-one support, 50 nights of respite care, therapeutic activities and a gym membership. It also specified that a mental capacity assessment should be carried out relating to care and accommodation, finances and direct payment decisions. At this time however, no care plan to reflect these findings was issued. [The report does not say what the Council’s excuse was.]
At a meeting in mid-October Mr and Mrs X were told by the social worker that an independent person was to be allocated to complete an assessment of Mr Y’s mental capacity to make decisions. Mr and Mrs X were made aware that a decision to pay them through Mr Y’s direct payments for their role as carers could not be made until the capacity assessment had been completed.
Mr X raised concerns that the proposed membership to a Council leisure centre would not be appropriate for Mr Y as it did not have the facilities that he liked to use. The Council considered this but maintained that the leisure centre could meet Mr Y’s needs and that he could pay the additional cost to use a commercial gym if he wished.
Mr X contacted the Council in October with a letter from a health professional involved in Mr Y’s care. He stated Mr Y did not want any more capacity assessments. The health professional had assessed Mr Y’s ability to make decisions regarding his care, respite services and use of direct payments, among other things. The professional concluded that Mr Y had the capacity to make such decisions. [The report does not say what type of health professional had been asked for their view, but the findings were supportive of Mr Y holding on to the presumption of capacity, not lacking it.]
The Council considered this but told Mr X that the professional’s opinion did not meet the required standards as it did not show how Mr Y’s capacity had been explored with regard to the various issues.
In November Mr and Mrs X submitted carers’ self-assessment reviews stating they could not continue their caring roles. They said that whilst it had been assessed that Mr Y required 50 hours of support, in July, the Council had not issued an updated care plan so he was still only receiving 15 hours of support, supplemented by Mr and Mrs X.
The couple made it clear that this was impacting their health and wellbeing as well as causing financial difficulties as it prohibited them from working full time. Additionally, they mentioned that Mr Y would not use respite services (preferring to stay at home) so would need alternative replacements.
The Council completed a carer’s support plan at the end of November proposing 2 nights of respite a week and funding for a holiday for the couple. There was no record of the Council sending this plan to Mr and Mrs X, however.
Mr Y’s care and support plan was also finally issued in November and recorded that Mr Y would have a direct payment to cover personal assistant support, day services and therapeutic activities. It also covered the cost of a gym membership to the local leisure centre. The Council reiterated that this plan was not final as a mental capacity assessment had not been completed and subsequently the direct payments could not be used to pay Mr and Mrs X.
Mr X complained to the Council in mid-December stating that they had failed to issue a carers’ support plan, failed to finalise Mr Y’s care plan, had not correctly identified Mr Y’s needs, had not accepted the health professional’s assessment nor included alternatives for respite care. Mr X later added to his complaint the point about local leisure centre membership being unsuitable.
The Council considered this complaint, recording that respite arrangements within the home needed to be agreed and that they had a finalised plan on their system but were still not satisfied about Mr Y’s mental capacity.
In its response the Council offered an independent capacity assessment but stated in the interim it would increase Mr Y’s direct payment to ensure sufficient funding for the care agency. The care agency had made the council aware that they believed Mr Y needed two-to-one care instead of the one-to-one care already in place. The increase in direct payment was to fund this change only.
The Council also highlighted how Mr Y’s personal budget for gym membership could be used flexibly and that they would consider alternative respite arrangements.
Mr X told the Council it had failed to mention his or Mrs X’s carers’ support plan and was unhappy with the repeated offer of an additional capacity assessment. The Council referred to its initial response and Mr X subsequently complained to the LGSCO.
What was found
Mental capacity assessment
The council had a duty to assess Mr Y’s mental capacity if they were concerned with his decision-making ability [in relation to something on which it was the decision-maker and within the Mental Capacity Act, we would add – not just because they owed duties to someone who might lack capacity]. The LGSCO recognised how this was particularly important as Mr Y was said to want to use his payments to pay Mr and Mrs X. The LGSCO commented on Mrs X’s control of her son’s finances and how this could lead to a conflict of interests as she would have been both the employer and the employee, so it was important to ascertain the man’s capacity to hold the DP in his own right.
The LGSCO found no fault in the council’s refusal to accept the health professional’s assessment as the council member of staff had set out why it considered the assessment was inadequate.
However, the Council was at fault for the delay in establishing Mr Y’s capacity. Whilst Mr Y did not want to complete an additional assessment and Mr X had declined the Council’s offers of such an assessment, the Council should have taken positive action to resolve the issue in the 11 months it had been outstanding.
In June 2024 the Council stated it intended to make an application to the Court of Protection. The LGSCO recognised that this was the appropriate action but maintained that the Council’s delay in doing so had caused all three parties avoidable uncertainty.
Care and support plan
The Council’s failure to complete a mental capacity assessment meant that a finalised care plan could not be issued. As a result the findings of the July care needs assessment which recommended 50 hours of support a week had not been implemented. Mr Y still received funding for only 15 hours of support. The LGSCO found that this was fault.
The Council did not seek any alternatives to direct payments to provide Mr Y with support in the interim. Whilst Mr Y did not personally suffer any injustice as his parents fulfilled his support needs, Mr and Mrs X had suffered an injustice. They were required to provide an additional 35 hours of care for 11 months which had detrimentally impacted their daily lives.
The LGSCO did not find fault regarding Mr Y’s gym membership, because the Council considered Mr X’s complaint but believed the centre could adequately meet Mr Y’s needs. They also told Mr X that his son could use the direct payment to partially fund a membership to another gym.
Carers’ support plans
Despite the July assessment concluding that Mr and Mrs X’s caring roles could not be sustained the council failed adequately and appropriately to support them. The support plan produced in November failed to consider that Mr Y did not want to use respite services outside the home.
In addition, the Council did not consider Mr and Mrs X’s suggestions of alternatives to respite care and did not send either of them a carer’s support plan.
The LSGCO found that this failure was fault. It caused Mr and Mrs X uncertainty and frustration and left them no choice but to continue providing care they were struggling to provide for a further 13 months.
The complaint handling
The LGSCO found that the Council’s failure to consider aspects of Mr X’s complaint was fault resulting in frustration.
It was agreed that within one month the Council would:
- apologise to Mr Y and pay him a symbolic £300 to reflect the uncertainty he faced due to the council’s delay in establishing his mental capacity.
- apologise to Mr and Mrs X and pay them £500 each in recognition of the impact their caring roles have been subject to, due to the council’s fault.
- reconsider how it can best meet Mr Y’s assessed needs and explore alternatives to direct payments
- offer and complete a reassessment of Mr and Mrs X’s needs as carers.
Within two months Mr X and Mr Y must come to a decision regarding a capacity assessment and then either complete the Care Act documentation or refer the matter to the Court.
Points to note for Councils, professionals, people using services and their carers, advocacy groups and members of the public
This report is an illustration of what happens when nobody applies the legal framework. Mr Y was entitled to the presumption of capacity. Any suggestion he needed an assessment to ascertain if he was incapacitated in a relevant regard would have had to have been justified, by the staff who would be obliged to set out the pros and cons and context for the decision, in respect of which his capacity was considered to be in doubt.
The council had still not set out their reasons in writing by the time of the complaint being determined! It was not allowed just to leave care planning up in the air without a decision about capacity being made and an application to the CoP with really good reasons for considering Mr Y to lack capacity should have been made much sooner.
The treatment of the carers’ position by the Ombudsman’s investigator conveys the impression that even s/he thinks it is up to the Council to ‘decide’ whether the carers were willing to continue, which is not the case. The duty is to respond to that, in terms of organising replacement care to meet needs to an appropriate extent, if it is a matter of fact, not decide whether it is a matter of fact!
We have not been able to glean from a close study of the report whether they said so, in terms, or were just holding on until a care plan was formalised. The assessment to which their willingness, and not merely their ability, was relevant, was Mr Y’s – it is only in the context of a carers’ assessment that the council is required to explore the sustainability of informal input, but even then, unwillingness is not something to be evaluated. It is what it is. It’s a No to the task, which means that there’s a gap in the means to meet needs.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Lancashire County Council (23 020 361) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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