Summary: Mr and Mrs X complain the Council has refused to provide care to Mr V, causing distress. The Ombudsman finds no evidence of fault in the Council’s decision making process.

The complaint

1. Mr and Mrs X complain the Council has refused to provide care to Mr V, causing distress. They are also unhappy the Council insisted on Mr V having a deputy. Mr and Mrs X feel the Council, through its actions, is discriminating against them and their family, causing distress.
2. Mr V is the brother of Mrs X.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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)

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How I considered this complaint

7. I spoke to Mr X and I reviewed documents provided by Mr and Mrs X and Mr V. 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.

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What I found

Care and Support Act Statutory guidance

8. 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.
9. The purpose of a care assessment is to identify the person’s needs and how these impact on their wellbeing, and the outcomes the person wishes to achieve in their day-to-day life. The assessment will support the determination of whether any needs are eligible for care and support from the council.
10. If the council determines the person has eligible needs, it must complete a care and support plan setting out how it will meet those needs. There are different ways a council can meet a person’s needs. This could include arranging a homecare service or by putting a person in contact with a local community group or voluntary sector organisation.
11. “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)

12. “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

13. In October 2018 Mr and Mrs X asked the Council to assess Mr V. Mr and Mrs X wanted to provide Mr V’s care, funded by the Council.
14. The Council carried out its assessment from November 2018 to February 2019.
15. The Council’s records show Mr V attended college full time and was provided with some support from family while at home. The Council identified some equipment that would be useful to increase Mr V’s independence but found no eligible care needs. The Council intended to carry out another review before Mr V finished college in 2020.
16. In August 2019 Mr and Mrs X complained about the content of Mr V’s assessment. The documents show they pointed out some factual inaccuracies, such as contact details. However, their main concern was the social worker’s assessment of Mr V’s needs. They disagreed with the findings and judgements reached by the social worker. They considered Mr V’s needs were greater than she had found.
17. Mr and Mrs X complained to the Ombudsman that the Council had refused to fund care for Mr V. They were also unhappy the Council had told them they would need to have a deputy to manage Mr V’s finances in future.
18. In September 2019 Mr and Mrs X asked the Council to reassess Mr V as he had now decided to leave college.

Findings

19. I cannot question whether a council’s decision is right or wrong simply because a complainant disagrees with it. I must consider whether there was fault in the way the decision was reached.
20. I have reviewed the Council’s assessment of Mr V. While I note there are some factual errors I find these do not affect the Council’s consideration of Mr V’s needs. The assessment appears detailed and robust, with the social worker’s findings supported by her observations. The Council does not appear to have overlooked any relevant information or, taken into account any irrelevant information. I acknowledge Mr and Mrs X have a different view of Mr V’s needs. However, the Council has followed a proper decision making process and therefore I cannot find it at fault.
21. 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 V may need a deputy, however I find the Council gave advice in line with the law. I do not find the Council at fault.
22. 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.

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Final decision

23. I have completed my investigation. This is because I find no evidence of fault in the way the Council made its decision on Mr V’s care.

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Investigator's decision on behalf of the Ombudsman