The Ombudsman's final decision
Summary: Mrs J complained about the care and support provided to her adult grandson and herself as his carer. We found no fault.
The complaint
Mrs J complained on behalf of her grandson, Mr M, that the Council had failed to: provide him with care and support.
assess his mental capacity.
carry out a carers assessment of her.
provide respite support.
Mrs J says this had resulted in a lack of adequate support, causing them significant distress and affecting her mental health.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
I spoke to Mrs J about her complaint and considered the Council’s response to my enquiries and: The Care Act 2014 (“the Act”) The Care and Support Statutory Guidance 2014 (“the Guidance”) The Mental Capacity Act Code of Practice (“the Code”) Mrs J and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance Care and support The Care Act 2014 requires local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment determines what the person's needs are and whether the person has any needs which are eligible for support from the council. Where councils have determined that a person has any eligible needs, they must meet those needs. The person's needs and how they will be met must be set out in a care and support plan.
Everyone whose needs the council meets must receive a personal budget as part of the care and support plan. Personal budgets can be administered as a managed account held by a third party (called an individual service fund) or as direct payments.
Support for carers Where somebody provides care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. The assessment determines whether the carer has any needs which are eligible for support by the council. The Act says the council may meet the carer’s needs by providing a service directly to the adult needing care.
Mental capacity The Mental Capacity Act 2005 sets out how a local authority should act to determine if a person has capacity to make their own decisions. The law says a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt.
Any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The Code sets out the steps that decision makers must follow to determine what is in a person’s best interests.
What happened Mr M has a medical condition which causes learning disability. He also has ADHD and autism. Mr M finds it difficult to regulate his emotions which can lead to verbal and physical aggression and he often has threatening behaviour towards Mrs J and professionals. He has also been suicidal and received support from mental health services. Mr M had been a looked after child and had lived with Mrs J under a care order. In 2021, aged 19, he lived with another relative for a short time, but moved back in with Mrs J in September 2021.
The Council assessed Mr M’s care and support needs in October 2021. The assessment found he took time to process what was being said but could communicate his wishes and feelings. It found no concerns about Mr M’s capacity to make decisions about his care.
The assessment says Mr M wanted to live with Mrs J but the relationship was volatile and Mrs J wanted him to move out in a planned way. Mr M needed support with budgeting and accessing the community. The Council determined he needed a mentor and support when he was in mental health crisis. He had met a charity for initial assessment for a mentor but had become aggressive.
Mrs J’s carer’s assessment was reviewed and found she should receive direct payments to fund respite care for two nights a week every three months for a year. The Council has sent evidence that payments of £195 were made to Mrs J in September and December 2021, and March and June 2022.
A review of Mr M’s care and support in January 2022 noted that the charity had been unable to support to him due to the risks caused by his behaviour. An individual service fund would be provided to enable Mr M to fund a personal assistant. Mr M had an introductory meeting with an agency. In response to my enquiries, the Council said it agreed to pay the agency mileage to take Mr M into the community, but he refused to go on the trips.
There was then an incident and Mr M was arrested and taken into custody. In May 2022 he had bail conditions to not return to Mrs J’s home. The Council sourced emergency housing but Mr M went to stay with a relative. Between then and October 2022 there are references in the evidence I have seen to Mr M moving around to live with Mrs J, relatives and friends. He was also taken into hospital by the police under the Mental Health Act 1983. The Council made a payment to Mrs J of £195.55 on 22 June as a one-off carer’s support.
In November 2022, Mr M was again living with Mrs J. The Council arranged care and support with another charity which provides housing. It was unable to meet Mr M in his home as he was aggressive to the staff. The Council says Mr M stopped engaging with the support and did not want to leave Mrs J’s home. Between January and March 2023 Mr M engaged with some support from another charity and was referred for support with finding employment and a college placement.
Mrs J’s complaint Mrs J complained to the Council in March 2023 that it was not supporting Mr M. She said she understood why some professionals were unwilling to work with him but it was the Council’s responsibility to find alternative support. In the meantime she was at risk and with no respite, affecting her mental health. She did not agree that Mr M had capacity to make decisions about his welfare and wanted him to be fully assessed by a mental health practitioner. Mrs J also complained about events when Mr M had been a looked after child.
The Council responded on 21 March. It said: It had arranged support for Mr M and this was available should he wish to access it.
It had had no reason to doubt Mr M’s mental capacity.
It could not investigate a complaint about when Mr M was a looked after child, or lack of respite, as this was too long ago.
Mrs J remained dissatisfied. She said Mr M would not access support as he did not have the capacity to. Mrs J considered a 24-hour support package was needed, whether in the home or in supported living accommodation. There had been a carers assessment but only one direct payment was made and the Council was now refusing to do a carer’s assessment.
In a response on 28 April, the Council said “Following the safeguarding in February 2023 you were advised you can evict him and you do not need to continue to provide support. As a result, you do not continue to meet the eligibility as a carer as defined under the Care Act 2014.”
Mrs J said she had been Mr M’s full-time carer since he came out of care. She asked for another carers assessment and backdated direct payments for respite.
The Council’s final complaint response on 22 June 2023 said Mrs J could not be Mr M’s carer due to his bail conditions being that he could not enter her home.
Mr J came to the Ombudsman but it took a few months to arrange Mr M’s consent for her to complain on his behalf. Since coming to the Ombudsman, psychiatric assessments have been done for the court. These say Mr M may not have capacity to instruct a solicitor or make decisions about his welfare.
My findings
Mrs J complains that the Council has failed to provide care and support to Mr M, or herself as his carer.
It is not the Ombudsman’s role to say what a person’s needs are, or what support they should receive. My role is to consider if a council has followed the correct process to assess a person’s needs. In doing so we look at what information the council considered, and if it took account of the service user’s or carer’s wishes. If a council considers all this information properly the Ombudsman cannot find a council at fault just because a service user disagrees with its decision.
Mr M’s care and support The Council assessed Mr M’s care and support needs in October 2021. It found he needed support and arranged a mentor. I have seen no evidence of fault in the way this assessment was done.
The mentor support broke down so in January 2022 the Council said it would fund a personal assistant to take Mr M into the community. There was an introductory meeting but the Council says Mr M refused to go out once it became clear he would have to pay for his own meal. There is no evidence of fault by the Council; it put support in place as set out in Mr M’s care and support plan.
Following Mr M’s arrest and bail there was a review of his care and support needs in November 2022. Support was put in place with a charity which provided housing, but this ended when Mr M said he was not looking for housing. The Council then arranged alternative support with another charity and Mr M did start to engage with this in early 2023.
There is no evidence of fault in the way the Council assessed Mr M’s care and support needs or arranged his support.
Mr M’s mental capacity The law says a person must be assumed to have mental capacity to make decisions unless it has been assessed that they do not.
During the care and support assessments and reviews in 2021 and 2022, the Council found no reason to doubt Mr M’s capacity. It therefore had no duty to carry out a mental capacity assessment. This is a professional judgement the Council was entitled to reach and without evidence of fault I cannot challenge it.
I therefore do not find fault by the Council in not assessing Mr M’s mental capacity.
Mrs J’s support as a carer The Council had assessed Mrs J’s needs as a carer in October 2021 and agreed to fund respite every three months for a year. I have seen evidence that four carer’s payments were made to Mrs J, in line with the carer’s assessment, so I do not find fault.
The Council assessed Mr M’s care and support needs again in November 2022. He was living with Mrs J although his bail conditions said he could not enter her home. Mrs J disputes that Mr M has lived anywhere else, or that there were any bail conditions, but on the evidence seen my view on the balance of probabilities is that Mr M sometimes went to other places. I find no fault by the Council in determining that Mrs J could not be his carer at that point.
The Council’s email of 28 April 2023 to Mrs J implied she was not eligible for support as a carer as she was able to evict Mr M. In response to my enquires, the Council accepted this was unclear. It said Mr M was moving between family, friends and hotels and Mrs J was therefore not undertaking a caring role.
Final decision
There was no fault by the Council. I have completed my investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman