• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• What I found
• Final decision

The Ombudsman's final decision:

Summary: Mr X complains the Council failed to assess his brother-in-law’s care needs properly, appointed an Advocate for him when this is not necessary, and has failed to confirm that it will extend the lease on his brother’s home. There is no evidence of fault causing injustice significant enough to warrant a remedy.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains the Council:
   • failed to assess his brother-in-law’s care needs properly;
   • appointed an Advocate for him when this is not necessary; and
   • has failed to confirm that it will extend the lease on his brother’s home.

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The Ombudsman’s role and powers

2. 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)
3. 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, sections 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I have:
   • considered the complaint and the documents provided by Mr X;
   • discussed the complaint with Mr X;
   • considered the comments and documents the Council has provided in response to our enquiries; and
   • shared a draft of this statement with Mr X and the Council, and invited comments for me to consider before making my final decision.

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What I found

What happened

5. Mr X’s brother-in-law, Mr Y, has a learning disability. He lives in rented accommodation where he receives 24-hour support with one other person.
6. The Council identified the need to apply to the Court of Protection to approve the deprivation of Mr Y’s liberty. It contacted Mr X on 31 January 2019 to arrange a visit with Mr Y and his family to discuss the “reassessment stage” of the application.
7. Social Worker A met Mr Y with members of his family on 8 February. Her record of the meeting says Mr X said:
   • he would contest the application to the Court of Protection;
   • the Council should arrange a new lease for Mr Y’s home, to give him security of tenure and do this before applying to the Court of Protection to approve the deprivation of his liberty;
   • the family would not oppose a third person moving into the property.
8. On 21 February, Social Worker A noted Mr Y had said he wanted to go to a café and the pub, but according to his Support Plan his family said he did not want to do this.
9. Social Worker A completed a Comprehensive Supported Re-Assessment and a Support Plan, which she sent to Mr X on 28 February. Both documents identify him as the family contact.
10. Social Worker A had another meeting with Mr X on 11 March. There is no formal record of the meeting. However, at the meeting Social Worker A told Mr X she would be appointing an Independent Advocate for Mr Y.
11. After the meeting Mr X wrote to the Council:
    • questioning the need for an Independent Advocate as he could speak for Mr Y;
    • asking how the Council could sign a tenancy/licence agreement for Mr Y;
    • asking the Council to tell him of any visits to Mr Y, as Social Worker A’s visit on 7 March had left him distressed;
    • opposing a proposed disconnection of the landline at Mr Y’s accommodation (with him using a mobile instead) as he understood Support Staff would always have access to a work mobile. He also said Mr Y prefers day trips to holidays;
    • saying the Support Plan was largely historical, contained information which was no longer applicable and in parts was factually incorrect.
12. When the Council replied, it said:
    • it would engage an advocate to ensure Mr Y’s voice was heard and his views and opinions taken account of in the decision-making process, as there were several family members involved;
    • it would propose signing Mr Y’s licence agreement for his accommodation for him and had received similar orders from the Court of Protection. Other details would be reflected in the Management Agreement between the Council and the Landlord;
    • on 7 March, Mr Y had shown Social Worker A photographs of holidays and day trips, asked to go on holiday to Wales and shown no sign of distress. It was not practical for Social Workers to always to tell family members of visits;
    • the Care Provider did not supply its Support Staff with mobile phones. Although Mr Y had a mobile phone there was no credit on it. Support Staff had been asked to check the phone still worked. Social Worker A was looking for ways to save Mr Y money, as he had a limited personal allowance. Mr Y could still make use of the landline if he needed to use it. It would be helpful to discuss his views about holidays with Mr Y;
    • Social Worker A had invited Mr X to provide information for her assessment and to provide comments on the document. It would be helpful if Mr X could identify any information he felt was not correct so she could correct it.
13. Mr X wrote again:
    • asking the Council to identify the relevant policies and explain why it considered it necessary to appoint an Independent Advocate when Mr Y had family to represent his views;
    • saying the lease for his brother’s accommodation was the key documentation for occupational rights and duties. He noted the lease had expired but Mr Y was still living there, and the landlord was accepting rent;
    • asked why a Support Worker had completed part of the form asking the Court of Protection to approve the deprivation of Mr Y’s liberty;
    • he understood all Support Staff had a mobile phone to use in emergency situations, so was not unduly concerned;
    • Social Worker A had not invited them to provide comments on the Comprehensive Supported Re-Assessment and Support Plan but only sent them “for your records”.
14. On 26 March Social Worker A asked Mr & Mrs X to complete Annex B, part 3 of the application to approve the deprivation of his liberty.
15. On 29 March Mr & Mrs X sent an e-mail to Social Worker A saying:
    • they objected to the fact the Council had allowed the 15-year lease on Mr Y’s home to expire, leaving him with no security of tenure;
    • they objected to two female support workers supporting Mr Y to access the community when a male worker needs to go with him to the toilet (e.g. in a pub or a restaurant);
    • they had concerns that Mr Y cannot access the community between 17.30 and 10.30, when there is only one support worker on duty;
    • there was no structured activity plan in place, although his GP had recommended regular exercise to keep his weight down;
    • the Council should resolve their concerns before asking the Court of Protection to approve the deprivation of Mr Y’s liberty.
16. The Council noted it could not proceed with a “streamlined” application for the deprivation of Mr Y’s liberty, given the family’s objections. It would therefore have to make a different application to the Court of Protection.
17. Social Worker A contacted an Independent Advocate on 1 April. She said a safeguarding concern had been raised by Mr Y’s family which had not yet been discussed with Mr Y. She said Mr Y had also asked for activities that his family disagreed with. She asked the Independent Advocate to consult Mr Y so his voice could be heard.
18. On 11 April the Council told Mr X his brother’s accommodation had “a rolling lease, with a 12 months’ notice period”. It said the landlord had confirmed an “ongoing commitment to the tenants”, so Mr Y could continue to live there as long as his needs were met there.
19. On 22 May the Council told Mr X it had assigned Social Worker A to complete the paperwork for the application to the Court of Protection. It said:
    • it had moved Mr Y up the waiting list because of family concerns about his tenancy agreement, as the Council could not resolve this until the Court had made a decision;
    • Social Worker A asked for an Independent Advocate to make sure Mr Y’s wishes were heard when Mr X objected to his Support Plan;
    • the concerns raised in their e-mail of 29 March reflected a disagreement between the Social Worker and family members;
    • the use of an Independent Advocate did not detract from the involvement of family members;
    • this was to ensure decisions were person centred and in Mr Y’s best interests, and reflected good practice; and
    • the referral was made on 4 March.
20. The Council assigned Mr Y’s case to Social Worker B, who contacted Mr X on 23 May. She said she needed to hold a best interests meeting.
21. On 28 May, Mr X complained to the Council about:
    • the handling of a meeting at his home on 26 March;
    • the decision to appoint an Independent Advocate, the failure to explain why it had done this and the failure to follow the Council’s policies, the Care Act 2014 or the Mental Capacity Act 2005;
    • the failure to conduct a proper review of Mr Y’s needs;
    • the failure to provide any reason for the decision not to enter into a new lease for Mr Y’s accommodation.
22. On 10 and 11 June Social Worker B assessed Mr Y’s capacity to decide if he should remain living in his current home. She found he lacked the capacity to make that decision.
23. On 17 June Social Worker B held a meeting to decide if it was in Mr Y’s best interests to remain living in his accommodation. Mr & Mrs X attended, as did the Independent Advocate and Officers from the Care Provider which provides support for Mr Y. The Council‘s record of the meeting says Mr X objected to the appointment of an Independent Advocate. They discussed the Support Plan produced by Social Worker B. Mr X said there were numerous mistakes, so they could not agree to it, and provided a copy with the disputed content highlighted. Mr X asked if 2:1 support was necessary. The Care Provider said not when Mr Y was a passenger in a car and proposed a meeting to resolve this. Mrs X raised concerns about Mr Y being unable to go out after 17.30. The Care Provider said he preferred to go out in the mornings, but support hours could be changed. Mr X said the Support Plan said Mr Y liked to go on holiday, but he prefers days out. The Care Provider said there were no plans to fill the third room at the supported living accommodation. Mr X said the Support Plan did not contain enough support hours. The Council said they needed to focus on “outcomes”, not the number of hours. The Care Provider said Mr Y went out most days. The Independent Advocate said Mr Y was happy with the conditions at his accommodation. They discussed the need for male carers when out in the community because of the need to support Mr Y when using public toilets. The Independent Advocate said the rota would need to reflect this, so Mr Y could go out. He said a risk assessment would be needed, but this should not limit Mr Y’s ability to go out. Mr X confirmed Mr Y could be supported by a female Support Worker, provided it was for a short time. Social Worker B said she would make the necessary changes to Mr Y’s Support Plan. Mr X said he would then agree it, but would check the document and let Social Worker B know of any more amendments.
24. On 18 June Social Worker B completed a Comprehensive Supported Reassessment for Mr Y. She also updated Mr Y’s Support Plan, sent a copy to Mr X the next day and invited him to identify anything he wanted amending. She also sent him minutes of the meeting on 17 June.
25. On 20 June Mr X made some comments on the minutes. He denied:
    • agreeing to all future e-mails being copied to the Independent Advocate;
    • agreeing to the Independent Advocate being Mr Y’s representative;
    • his wife offered to give up her position as Mr Y’s Department for Work and Pensions Appointee.
26. He said they needed to discuss the amended support plan and noted previous support plans had included the number of hours.
27. On 12 July Social Worker B told Mr X:
    • she would send the Independent Advocate a copy of the Support Plan when finalised;
    • the Independent Advocate would continue to work with Mr Y;
    • the minutes say Mrs X is happy to continue managing finances only;
    • he should highlight parts of the Support Plan so she could respond by e-mail;
    • the Support Plan should be “outcome based”, rather than include an exact number of hours. He should query the Care Provider’s care plan “for specifics”;
    • to contact her by e-mail as she was often away from the office but had a laptop with her.
28. When the Council replied to Mr X’s 28 May complaint on 17 July, it said:
    • there were times when officers had to be direct when outlining a situation, but they apologised if they had not appeared professional and calm;
    • it had referred Mr Y for independent advocacy to make sure his voice was heard and he had choices over his life;
    • various documents identified advocacy as a fundamental priority. The use of an Independent Advocate would help to resolve disagreements between Mr X and Council Officers;
    • the purpose of the meeting on 8 February (referred to as 8 March in the letter) was to explain the Court of Protection process and the need for a reassessment and updated Support Plan. The meeting on 11 March had been arranged to gather information about Mr Y’s social history for the Court application, but Mr X was “not receptive to engaging in the process”. Historical information provided by another family member had been used to complete the assessment;
    • the Council was aiming to reach Management Agreements with all landlords, but this was taking longer than it had hoped. When the agreements were in place it would produce tenancy agreements for each individual. The length of any agreement would be decided by the landlord. Even a longer agreement would not necessarily guarantee Mr Y would stay there indefinitely. However, there were no plans for him to move to a different property. It apologised for the time taken to sort out a tenancy agreement.
29. Social Worker B sent Mr X a copy of Mr Y’s Comprehensive Supported Reassessment and Support Plan on 30 July. She noted the Support Plan said his personal budget could be used flexibly to meet his needs.
30. Mr X raised further concerns, to which an Assistant Director responded on 27 August. She said:
    • the appointment of an Independent Advocate did not need a legal basis as the Council had discretion to do this if it was in someone’s best interests. This was good practice but there was no specific policy about this. Independent Advocacy was a way to ensure someone’s human rights and best interests were objectively considered when making decisions for them;
    • a brother had provided historical information about Mr Y at the meeting on 8 February and apologised if Mr X had been told this was in writing. She understood the atmosphere at the meeting was “uncomfortable”. Officers reported Mr X being critical of them at the meeting on 11 March and constantly asking questions which prevented them from progressing the meeting effectively. Mr X had been critical of the assessment but did not provide information to correct any inaccuracies afterwards and had still not done this despite being invited to do so;
    • she apologised on behalf of the Council for saying the 8 February meeting had been on 8 March;
    • the discrepancy between what Mr Y and Mr X had said was not the only reason for appointing an Independent Advocate. This was just one example;
    • the Council intended to continue with the lease for Mr Y’s accommodation and had confirmed this on 11 April.
31. On 2 September Social Worker B asked Mr X if he wanted clarification on anything in Mr Y’s Comprehensive Supported Reassessment, as she needed to proceed with the application to the Court of Protection.
32. When Mr X replied on 5 September, he said he had just received the Council’s response to his stage 2 complaint and was considering complaining to us. He said he had proposed a “proper and detailed” review of Mr Y’s care and support plan. He said the Council needed to confirm that it is content for him to advocate for Mr Y and terminate the appointment of the Independent Advocate.

Is there evidence of fault by the Council which caused injustice?

33. Because of his learning disability, Mr Y lacks the capacity to make some decisions for himself. He does not have a Power of Attorney or a Deputy appointed by the Court of Protection to make those decisions for him. The Council therefore needs to make sure such decisions are made in his best interests, involving him as much as possible in that process and consulting others about the decisions.

Assessment

34. It appears there was a misunderstanding about the purpose of the meeting on 8 February. This resulted in a poor relationship between Mr X and Social Worker A. This was unfortunate but I cannot put it down to fault by the Council. It is clear from its records that it arranged the meeting because it had to reassess Mr Y’s needs before applying to the Court of Protection for approval to deprive Mr Y of his liberty. Since then Social Worker B has met Mr X, updated the assessment and invited Mr Y to provide comments. She has also drafted another Support Plan. It is for Mr Y to decide whether to provide comments. If not, the Council is entitled to draw both matters to a conclusion.

Independent advocacy

35. The Care Act and the Care and Support Statutory Guidance set out the circumstances in which councils have a duty to appoint an Independent Advocate. This includes anyone who does not have someone suitable to represent them or when safeguarding concerns have been raised. However, these duties do not preclude councils from exercising their discretion to appoint Independent Advocates under other circumstances. The decision to do so in Mr Y’s case did not amount to fault.
36. The records show that views Mr Y expressed to Social Worker A conflicted with the contents of his Support Plan and Mr X’s comments. Within that context there was nothing wrong in appointing an Independent Advocate to establish Mr Y’s wishes and feelings. This did not displace Mr X as the principal family contact over matters relating to his care.
37. I have seen no evidence to support the claim that the use of an Independent Advocate has caused distress to Mr Y. The minutes of the meeting on 17 June suggest the use of an Independent Advocate has been helpful in clarifying what is in Mr Y’s best interests.

Tenancy

38. The Council has confirmed that it intends to continue with the lease for Mr Y’s accommodation. Although the matter still needs to be settled, it is clear there are no plans to move Mr Y as he is settled in his accommodation and it is meeting his needs. However, whatever agreements are put in place, they will not guarantee permanency. For instance, Mr Y would have to move if his needs could no longer be met there.

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Final decision

39. I have completed my investigation as there is no evidence of fault causing injustice significant enough to warrant a remedy.

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Investigator's decision on behalf of the Ombudsman

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