Summary: The Council is at fault for failing to properly assess and put in preventative measures to support a person in need with fluctuating capacity. To remedy the complaint the Council has agreed to apologise to Mr D and Ms C and make a symbolic payment for the distress caused by the Council’s failures. It will work with Mr D to assess and plan future services, review procedures, remind staff about the importance of considering preventive measures and review processes when a person’s circumstances change.

The complaint

1. The complainant who I call Ms C, complains on behalf of her brother who I refer to as Mr D. Ms C says the Council has failed to support Mr D with his care and housing needs. It also did not do enough to prevent financial exploitation of Mr D.
2. Because of these failures Ms C says Mr D has been living in poor conditions and has “lost” £80000.

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The Ombudsman’s role and powers

3. 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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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)
5. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)

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How I considered this complaint

6. I considered Ms C’s written complaint and the complaint correspondence. I asked the Council questions and for information and considered its response. I also considered:-
• Care Act 2004 and the associated Care and Support Statutory Guidance (CSSG);
• duties owed under the Housing Act 1966;
• the Council’s case notes, safeguarding records, assessments, and support plans for Mr C.
7. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

8. Mr D was living with his parents. He moved into supported living in 2018. Mr D had a self-contained flat and there were staff on site to help. Mr D has mental health problems he also at times misuses alcohol.

What should have happened

Adult social care

9. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.

Care planning

10. Once eligible needs have been identified through the assessment process the council must produce a care and support/support plan. Where the Council is meeting some needs, but not others, it should clearly set out which needs it will meet and which ones it will not, explaining the rationale for its decision.
11. Certain elements must always be incorporated in the final plan. The relevant elements to this complaint are:
• the needs identified in the assessment;
• whether, and to what extent, the needs meet the eligibility criteria;
• the needs the Council is going to meet & how it intends to do so;
• the person’s desired outcomes relevant to care and support;
• information and advice on reducing needs and preventing or delaying needs in the future;
• sign-off should occur when the person and LA have agreed on the factors within the plan including the final personal budget amount.

Review of care and support plans

12. CSSG says reviews should be person-centred and outcome focussed. They should cover the following elements:
• have circumstances or needs changed?
• what is working in the plan, what is not working and what might need to change?
• have the outcomes identified in the plan been achieved?
• does the person have new outcomes they want to meet?
• could improvements be made to achieve better outcomes?
• is the personal budget enabling them to meet their needs and the outcomes identified in the plan?
• is the personal budget still meeting the sufficiency test?
• are there changes in the person’s community support networks which might impact on the plan?

Mental Capacity Act 2005

13. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make certain decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
14. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established that they lack capacity. A person should not be treated as unable to make a decision:
• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
15. Councils must assess someone’s ability to make a decision when that person’s capacity is in doubt. Some people have fluctuating capacity – they have a problem or condition that gets worse occasionally and affects their ability to make decisions.
16. Paragraph 4.29 of the Code of Practice says “it is important to review capacity from time to time, as people can improve their decision-making capabilities…… Capacity should always be reviewed:
• whenever a care plan is being developed or reviewed
• at other relevant stages of the care planning process, and
• as particular decisions need to be made.

Duty to promote integration with other relevant services such as housing

17. Section 6 Care Act places a duty on councils to carry out their care and support functions with the aim of integrating relevant services such as housing. The statutory guidance says, “local authorities should consider the value of regular inter-agency meetings with all those involved in the person’s care and support”.

Housing

18. Councils must complete an assessment if they are satisfied an applicant is homeless or threatened with homelessness. The Code of Guidance says, rather than advise the applicant to return when homelessness is more imminent, the housing authority may wish to accept a prevention duty and begin to take reasonable steps to prevent homelessness. Councils must notify the applicant of the assessment. Councils should work with applicants to identify practical and reasonable steps for the council and the applicant to take to help the applicant keep or secure suitable accommodation. These steps should be tailored to the household, and follow from the findings of the assessment, and must be provided to the applicant in writing as their personalised housing plan. (Housing Act 1996, section 189A and Homelessness Code of Guidance paragraphs 11.6 and 11.18)

Safeguarding

19. The Care Act requires that each local authority must make enquiries, or ensure others do so, if it believes an adult is experiencing, or is at risk of, abuse or neglect (s.42). These are often known as s.42 enquiries.
20. Section 14.2 of the statutory guidance says a local authority’s safeguarding duties apply when an adult:
• has needs for care and support;
• is experiencing, or is at risk of, abuse or neglect (including financial abuse);
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.

What happened

21. In June 2019 the Council assessed Mr D and compiled a support plan which included tasks to keep a clean home and to promote a healthy diet. There is no detail about how Mr D would achieve this. It also included a third-party organisation to support with finances and ensure Mr D received all his eligible benefits.
22. The supported living provider, who I refer to as LP, helped Mr D with his finances. It managed daily payments to Mr D so his money lasted for a week. This was with Mr D’s consent and agreement.
23. In 2021 Mr D’s parents died and left him over £75000. The Council completed an assessment on 8 July 2021 and discussed the inheritance. The assessment identified Mr D had capacity to make decisions about his finances but needed help to manage his money. The Council records,
24. “Based on my discussions with Mr D (sic) today I am satisfied that he has capacity to manage his finances. However, this would fluctuate when under the influence of alcohol.
25. Mr D (sic) reports that he is considering buying a flat with the money and he is meeting with his sister to discuss this with her. Mr D (sic) has also queried how the inheritance money will affect his benefits and I have signposted him to a third party organisation for information and advice on this.”
26. In August 2021 after threatening another resident with a knife LP gave notice to Mr D to leave the accommodation. It said Mr D’s behaviour had become more unpredictable and aggressive, especially when under the influence of drink. It said he was a risk to others. Mr D apologised for his actions. During the same period Ms C told the Council she had concerns Mr D’s mental health was worsening. Ms C told the Council Mr D needed support with looking for alternative accommodation and he had given a lot of money to a friend. She also raised concerns about the standard of accommodation and how much Mr D was paying.
27. In September 2021 the Council records that due to the circumstances around Mr D’s vulnerability it should carry out a safeguarding investigation. It made referrals to support Mr D with his substance misuse problems and to the housing department to secure alternative accommodation. The housing department found it difficult to find suitable accommodation due to Mr D’s behaviour. Private landlords were also unwilling to take Mr D as a tenant as although he had savings, he had no regular income.
28. The Council took little action until February 2022 when Ms C again raised concerns. These included:-
• Mr D had still not moved and was paying £1400 a week for the accommodation and the support he received;
• the cleanliness within Mr D’s accommodation was appalling. It was unclear what support Mr D was receiving and what he was paying for;
• it was difficult to find alternative accommodation for Mr D. Ms C had asked for help with this as she could not take Mr D to view properties;
• a person with a drug problem had moved into the property next door to Mr D and was financially abusing him and had introduced him to drug taking. Mr D was now abusing both drugs and alcohol;
• due to a mixture of financial abuse and substance misuse Mr D’s inheritance had dwindled.
29. Based on these concerns and issues raised from the bank the Council made safeguarding enquiries. It found:-
• Mr D’s bank had now set a money withdrawal limit of £50 per day. However, with the help of friends Mr D had accessed internet banking and managed to use different shops to withdraw extra money;
• Mr D had lent money to different friends;
• Mr D felt his spending was out of control;
• Mr D had discussions with the bank about putting £15000 in an ISA;
• Ms C had concerns about Mr D’s general appearance and the decline in his mental health.
30. The Council closed the safeguarding as it decided Mr D had capacity and was willingly giving his money away. It agreed to take the following actions:-
• to support Mr D with putting his money into an ISA;
• to look at independent housing for Mr D;
• for Mr D to engage with his support worker for help with his mental health and substance misuse.
31. There is no record of Council intervention until November 2022 when the police arrested Mr D after he had threatened staff at LP with a knife. LP said he could not return.
32. Over the next few days the Council got housing for Mr D. Due to Mr D’s threatening behaviour it could not secure long-term secure accommodation. Instead the Council provided him with hotel accommodation. Mr D was still within this accommodation at the point of his complaint. I understand however that he is now no longer living there.

Was there fault causing injustice?

Assessment, Care Planning, and review

33. The Council failed to consider how to prevent or delay needs arising in the future. It was aware Mr D would be receiving a large inheritance and needed support in managing money. This is fault and not in line with the Care Act 2014. (See paragraphs 8 and 9 above).
34. Once Mr D received his inheritance he had a change in circumstance and the Council should have reviewed his care needs and assessed:-
• how Mr D would manage his money;
• what financial changes would occur with his benefits, housing, and support costs;
• his future housing needs;
• addressing any concerns about the risk of financial abuse.
35. Ms C raised the quality of service provision several times which should have triggered the Council to complete a review of Mr D’s needs, but the Council took no action to address these issues. Before LP gave notice to Mr D, Ms C told the Council she could not support Mr D to look for alternative housing and he needed help with this. Although the Council made some contact with the housing provider there is no evidence it made a consistent, concerted effort. The failure to review Mr D’s care needs is fault and not in line with the Care Act 2014 (see paragraph 10 above).
36. The Council did not properly consider Mr D’s capacity to manage his finances until the bank and Ms C raised concerns in February 2022 about financial abuse. While it is clear Mr D had fluctuating capacity the Council did not support Mr D to make decisions about safeguarding his finances when he could. This is not in line with the Mental Capacity Act and is fault.
37. When the Council discussed financial restrictions with Mr D he only had £15000 left which he put in an ISA. There is no record about how the Council supported Mr D with the decision making around the ISA and why this was the right action. The failure to properly record the decision making is fault.

Safeguarding

38. The Council delayed by seven months in starting safeguarding procedures. It noted concerns in September 2021 but only started procedures in March 2022. This delay amounts to fault.
39. The Council made safeguarding enquiries after both the bank and Ms C raised concerns about Mr D’s wellbeing and potential financial abuse. This was in line with the Care Act. It closed the safeguarding because it considered Mr D had capacity and could decide to give or loan money. The Council could make this decision as Mr D could tell them, while in a capacitated state that these were his wishes. I find no fault in how the Council reached this decision.
40. However, there is no evidence the Council completed follow up actions resulting from the safeguarding enquiries. This resulted in Mr D not receiving the services he needed. It was not until eight months later after a further incident at LP did any other action take place. This delay amounts to fault.

Housing

41. There was some liaison between the housing and social care departments about alternative housing for Mr D. The Council approached various housing providers but because of Mr D’s past threats of violence it was difficult to find alternative housing. There was however a gap of eight months where there is no record of the Council taking any action to secure accommodation and support for Mr D. The delay amounts to service failure.
42. It does not appear that the Council completed a personalised prevention plan for Mr D’s housing. This is not in line with the housing Code of Practice and is fault.

Injustice

43. This was a difficult situation. Mr D was struggling with his mental health and substance misuse. The Ombudsman’s role is to remedy injustice caused by the Council’s failures. Mr D has complex needs and the Council failed to properly consider safeguards to protect him.
44. Mr D had agreed both with LP and later during the safeguarding enquiries with the bank about ways to manage his money. I consider it is therefore more likely than not, had the Council discussed money management with Mr D earlier, either as a preventative measure or later as a protective measure he would have agreed to some form of financial management which would have stemmed his losses.
45. However due to the nature of Mr D’s difficulties I cannot say now whether had the Council acted correctly, Mr D would have received alternative accommodation sooner or still have all his inheritance money. Both Mr D and Ms C however have the uncertainty that but for the faults identified Mr D’s situation would not have declined to the extent it did.
46. Ms C also has the injustice that the Council did not properly, if at all consider her concerns about Mr D’s health, financial abuse, and accommodation. This left her angry and frustrated and the time and trouble in having to pursue the Council.

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Agreed action

47. I have found fault in the actions of the Council which caused Mr D significant injustice. The failures also affected Ms C. I consider the following actions are suitable to remedy the complaint:
48. Within one month of the final decision the Council has agreed to:
1. apologise to Mr D and Ms C for the failures I have identified in this statement;
2. pay Mr D £3000 for the uncertainty caused by the Council’s actions and the failure to put in preventative measures which exposed Mr D a vulnerable person, over a prolonged period of time, to the risk of harm. A meeting should take place with Mr D and Ms C about how this money should be paid. For example it could be held until Mr D moves into alternative accommodation to pay for essential items;
3. pay Ms C £750 for the anger, frustration, uncertainty, time and trouble the Council’s failures have caused her.
49. Within three months of the final decision the Council has agreed to:
1. hold a multidisciplinary meeting to properly consider Mr D’s housing and social care needs and if applicable provide Mr D with a personalised housing plan;
2. reassess Mr D’s social care needs and provide him with a copy of his personal budget, support plan and assessment. The reassessment should include Ms C;
3. make any appropriate referrals for specialist support if identified within that assessment;
4. with Mr D’s consent keep Ms C updated with actions the Council is taking.
50. Within three months of the final decision the Council has agreed to:
1. remind staff and if necessary, provide training about how to assess capacity where there is fluctuating capacity, in particular cases where there is substance misuse;
2. review policies and procedures so they address assessing and supporting people with fluctuating capacity;
3. remind staff about taking prompt action in response to safeguarding concerns and to follow action plans and include them as part of the care management process if they arise out of safeguarding;
4. remind staff and review procedures about the need for personalised housing plans and when individuals should receive them.
51. The Council should provide us with evidence it has complied with the above actions.

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Final decision

52. I have found fault in the Council’s actions which has caused both Ms C and Mr D injustice. I consider the recommended actions above are suitable to remedy the complaint. I have now completed my investigation and closed the complaint on this basis.

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Investigator's decision on behalf of the Ombudsman