Summary: Mr and Mrs X complain about the Council’s provision of care to Mr Y, causing distress. The Ombudsman finds no evidence of fault by the Council.

The complaint

1. Mr and Mrs X complain the Council has failed to provide care to Mr Y and is wrong in seeking to speak to him alone. They are also unhappy the Council said Mr Y needed a deputy.
2. Mr and Mrs X feel the Council, through its actions, has discriminated against them as a family, causing Mr Y and them distress.
3. I note Mr Y is an uncle of Mrs X.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
6. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
7. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
8. If we are satisfied with a council’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)

Back to top

How I considered this complaint

9. I spoke to Mr X and I reviewed documents provided by Mr and Mrs X and Mr Y. I gave Mr and Mrs X and the Council the opportunity to comment on a draft of this decision and I considered the comments provided.

Back to top

What I found

Care and Support Act statutory guidance

10. The Department for Health issues statutory guidance on the Care Act 2014 that we expect councils to follow. I have referred to relevant information below.
11. The care assessment must be person centred throughout, involving the person and supporting them to have choice and control.
12. Councils must consider whether a person can be involved in their assessment or whether they would have substantial difficulty. If a person does have substantial difficulty, the council must find someone appropriate and independent to support and represent the person, for the purpose of facilitating their involvement.
13. “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 council, 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 council must appoint an independent advocate.”
14. “At the time of the assessment of care and support needs, the council must establish whether the person has the capacity to take part in the assessment. If the person lacks capacity, the council must find out if the person has any of the following as the appropriate person will need to be involved”:

• enduring power of attorney (EPA)
• lasting power of attorney (LPA) for property and affairs
• lasting power of attorney (LPA) for health and welfare
• property and affairs deputyship under the Court of Protection
• any other person dealing with that person’s affairs (for example, a Department for Work and Pensions appointee)

15. “People who lack capacity to give consent to a financial assessment and who do not have any of the above people with authority to be involved in their affairs, may require the appointment of a property and affairs deputyship. Family members can apply for this to the Court of Protection or the council can apply if there is no family involved in the care of the person. While this takes some weeks, it then enables the person appointed to access information about bank accounts and financial affairs.”

What happened

16. Mr Y left supported living at the end of October 2018. Mr and Mrs X wanted to provide his care going forward, funded by the Council.
17. The Council progressed with a care assessment from December 2018. Mr and Mrs X supported Mr Y at any meetings.
18. In February 2019 the Council’s social worker sought to speak to Mr Y alone to get his own views on his care and support.
19. Mr and Mrs X refused to allow the Council to speak to Mr Y alone and complained to the Council.
20. In response the Council explained it wanted to speak to Mr Y alone to get his views and it would engage an independent advocate if needed. However, it had been unable to properly assess Mr Y’s care needs because Mr and Mrs X had not allowed access to him.
21. Mr and Mrs X complained to the Ombudsman that the Council had failed to provide care for Mr Y and they were unhappy it wanted to speak to him alone. They also complained the Council told them they would need a deputyship in order to manage Mr Y’s finances in future.
22. In October 2019 the Council applied to the Court of Protection for it to decide whether Mr Y had capacity to make decisions about his care.
23. Mr and Mrs X have said they do not want the Court of Protection involved.

Findings

24. The statutory guidance says a care assessment must be person centred. Therefore, a council must ascertain the views and wishes of the person who will receive care. If a council considers a person will have difficulty during an assessment and they do not judge any family or friends appropriate to assist, they must appoint an independent advocate.
25. The Council did not consider any family or friends appropriate to assist Mr Y in the assessment and wanted to speak to him alone. However, the Council also made clear it would appoint an independent advocate if needed. The Council’s actions were in line with the statutory guidance and therefore I do not find fault.
26. I appreciate Mr and Mrs X felt Mr Y was too vulnerable to speak to the Council alone and felt they, or someone chosen by them, should be able to provide support. However, the law says it is for the Council to decide who is appropriate and to appoint an independent advocate if the Council considers its necessary.
27. While the Council has been unable to gather Mr Y’s views it cannot proceed with his care and support plan. Therefore, although I note the Council is not providing care to Mr Y, I find this is through no fault of its own.
28. Where a person lacks capacity to consent to a financial assessment it may be necessary for family members or the council to apply to the Court of Protection for deputyship. I note Mr and Mrs X were unhappy the Council suggested Mr Y may need a deputy, however I consider the Council gave advice in line with the law. I do not find the Council at fault.
29. Only a court can decide if a council has unlawfully discriminated against a person. However, the Ombudsman can consider if there has been some fault by the Council. Having considered the complaint and the Council’s actions, I find no evidence of fault by the Council in its actions in seeking to provide care to Mr Y.
30. There remains a dispute about whether Mr Y has capacity to make decisions about his care. However, the Court of Protection is the appropriate body to resolve such disputes.
31. There are also disputes over Mr Y’s care needs and the content of the Council’s assessments to date. However, I find it is not possible to properly investigate such matters until the Court has decided on Mr Y’s capacity and the Council has had opportunity to complete a care assessment and support plan.

Back to top

Final decision

32. I have completed my investigation. This is because I find no evidence of fault in the Council’s actions in seeking to provide care to Mr Y.

Back to top

Investigator's decision on behalf of the Ombudsman