Date of decision: 05 June 2025
Summary
The Ombudsman criticised Surrey’s handling of an adult’s care, neglecting timely safeguarding and needs review or reassessment.
What happened
In June 2023, the Council assessed an adult with dementia whose needs had increased, such that he now needed 24 hour support with most aspects of daily living. His care package included sleeping night staff and access to 24-hour support.
In September 2023, after a fall, the supported living provider made a safeguarding referral and requested an urgent needs review.
The Council delayed completing the safeguarding enquiry until February 2024, then failed to act on recommendations for a care review. By March 2024 the Provider said that the adult could no longer carry out his own personal care and was at high risk of falls, which was unmanageable without waking night staff, and that it had been providing waking night staff without funding since November 2023.
Multiple further requests for review occurred, but the Council took until October 2024 to reassess needs. Meanwhile, it proposed the adult’s relocation to a care home without proper consultation, despite opposition from professionals, family, and advocacy. The Council’s internal decisions vacillated for months. Only in July 2024 did a social worker begin a formal best interests process.
What was found
In relation to safeguarding, a referral was sent to the Council in September 2023 but a social worker did not finish the safeguarding enquiry until February 2024, deciding that a review of the adult’s care and support needs should be completed.
Although there is no time frame in place for a safeguarding enquiry to be finished, this is expected to be completed within a reasonable timeframe. The five month delay to DO the safeguarding review, was fault, which caused the adult’s representatives uncertainty about how potential safeguarding concerns were being managed.
In relation to the adult’s care needs, his care plan dated from a review in June 2023. Between September and November 2023 his relative, the provider and a nurse all asked the Council to complete a review. The Council seemed to agree with the need for a review because it identified this in its safeguarding enquiry in February 2024.
The statutory guidance says that a council must conduct a review within a reasonable timeframe, if an adult or a person acting on the adult’s behalf makes a reasonable request for one. It took the Council until October 2024 to conduct the review. This delay of 13 months from the first referral by the provider constituted fault, which caused the adult’s representatives uncertainty about his care and support.
The delay meant that the Ombudsman could not know what the adult’s care and support needs were between September 2023 and October 2024, so could not make findings on whether the Council was meeting the adult’s care needs, or whether the Council wrongly claimed the Provider could not meet these.
The adult lacked capacity to make the relevant decisions, and so a best interests process was the necessary and appropriate process for finalising care planning. Although the Council evidenced that it was following the best interests process, there was a significant delay in starting to do so. The issues with the adult’s care were identified in September 2023, but it took until late 2024 to allocate a social worker to start that process, and until October 2024 to hold the first best interests meeting. The Ombudsman found fault in the Council’s inconsistent communication of the plan for the adult’s care and the delay in the best interests process. The Ombudsman observed that if there continued to be a dispute between the adult’s representatives, and the Council, about the man’s long term needs, the Court of Protection should be considered.
No financial compensation was specified; the Council was required to apologise and produce an action plan to complete the best interests process.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Section 27 of the Care Act 2014 requires councils to keep care and support plans under review and to act without delay when a review is reasonably requested.
Statutory guidance underlines the need for both scheduled reviews and additional reviews in response to significant changes in a person’s needs or upon any reasonable request from the adult or anyone with an interest. Safeguarding duties under section 42 of the Care Act also make clear that councils must make enquiries if they suspect an adult with care and support needs is at risk of abuse or neglect, promptly and proportionately to the risk identified. The Mental Capacity Act 2005 requires that all decisions made for someone lacking capacity must follow a structured best interests process, involving relevant parties and IMCAs where appropriate.
We feel that the Ombudsman could have gone further, since there was evidence from the provider dating back to September 2023 about the adult’s change of needs, and they were sufficiently concerned to provide waking night staff without funding since November 2023. The Council said that it needed more evidence from the Provider about this need and said it would complete a needs assessment as soon as possible. In situations like this the only reason that there is no injustice is that the provider is shouldering the statutory duty outside of contract, and that is not acceptable.
Even though this adult lacked capacity, the report is silent as to whether he was deprived of his liberty at his supported living accommodation. It seems likely that he was deprived of his liberty, since he needed 24 hour support from June 2023, with most aspects of daily living. If that was the case then since he was at a supported living placement and not a care home, a standard authorisation under the DoLS framework could not have been granted by the local authority and the Court of Protection ought to have been asked to authorise the deprivation in the community. If that had happened, we would have expected the concerns of the provider and the adult’s representatives to be picked up during this court process, even though the Court of Protection cannot award a remedy against a council for breach of public law obligations, as if it were a judicial review court.
We think that the Ombudsman’s comment that the ‘Court of Protection should be considered’ if a dispute continued, is somewhat misleading. The position is that if a dispute continues about the proportionality or necessity for deprivation of liberty, an application to the Court of Protection must be made, but that is in the context of a DoLS authorisation – which is only relevant if a move is being made, and the report is not clear about that, here. If the case concerned a challenge to a deprivation of liberty under a DoLS authorisation in a care home, then the adult would be entitled to non-means tested legal aid.
Short of allegations of unnecessary restriction of liberty or deprivation of it without due process, best interests decisions can be made and implemented without regard to the CoP unless or until someone uses that Court to dispute incapacity or to force a human rights or best interests issue in front of a judge, as a stance that exceeds the authority of the decision-maker. The Council should make the application, but a family member could also do so. One does NOT get free legal aid in that scenario.
A threat of Judicial Review, or actual Judicial Review proceedings in respect of the failure to review and or meet care needs, might have led to a speedier resolution, as might an application to the Court of Protection. Again, however, no free legal aid exists, but a means test of having under £3K in one’s name.
The broader implication is that councils should build systems to ensure all review requests, professional alerts, and changes in need are rapidly logged as formal requests for assessment, triggering appropriate Care Act processes from the outset.
They must ensure that best interests procedures are commenced, not deferred, at the earliest opportunity, with all steps recorded and shared with advocacy and family.
The legal necessity of meaningful consultation, properly recorded decision-making, and sequence of lawful process is not a box-ticking exercise but a fundamental protection for individuals’ autonomy and rights.
For all involved, vigilance regarding timely, lawful, and participative Care Act processes is essential to prevent recurrence of such failings.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Surrey County Council (24 011 942) report.
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