Summary: There was poor communication with Mr X and Mrs X about a referral to an advocate and a delay in complaint handling. This was fault which caused avoidable distress and time and trouble. The Council will apologise and make a payment of £150 to reflect the injustice.

The complaint

1. Mr and Mrs X complained Suffolk County Council (the Council) referred their adult son Mr Y to an independent advocate. They consider this was inappropriate because they can represent Mr Y’s views. They also complained about poor communication by the social worker and poor complaint handling.
2. Mr and Mrs X said this caused avoidable distress and time and trouble.

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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. 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

5. I considered the complaint to us, the Council’s response to the complaint and documents in this statement. I discussed the complaint with Mr X.
6. Mr and Mrs X 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

The law

7. Section 67 of the Care Act 2014 sets out provisions around advocacy. It requires a council to arrange an independent advocate to enable an adult to take part in a social care assessment or a review of a care and support plan if the adult would have substantial difficulty in contributing without an advocate. There is no requirement for an advocate if the council is satisfied there is an ‘appropriate person’ to support the adult. If the adult lacks mental capacity to consent to advocacy, the person is only appropriate if the council is satisfied they act in the adult’s best interests.

What happened

8. Mr Y is an adult with autism and a learning disability who lives at home with Mr and Mrs X. He has received care and support from the Council for at least 10 years. Mr Y’s care and support plan of September 2020 notes his parents have lasting powers of attorney. The care and support plan also says Mr Y does not need an advocate as he can voice his own views with support from his parents and his support worker.
9. A social worker started a review of Mr Y’s care and support in January 2021. She sent Mr X a copy of a form called Care Act Eligibility Assessment which she had filled in and asked for his comments. Mr X added his comments and sent the form back. The social worker put on the form there need not be an independent Care Act advocate because Mr Y was happy having his parents advocate for him.
10. In April 2021, Mr X emailed the social worker to say he had never discussed advocacy with her and he did not consider it appropriate because he and Mrs X could deal with any issues on behalf of Mr Y. The social worker replied saying Mr X’s notes were very helpful, but she also needed to capture Mr Y’s views. The social worker went on to say advocacy was free and independent and would support Mr Y in decisions about how his health and care was delivered.
11. Four days later, Mr X emailed the social worker saying an advocate had just phoned him. Mr X said he had never given consent for the referral to an advocate and advocacy had not previously been discussed. He said he was angry.
12. The team manager replied to Mr X’s email a week later, apologised for the delay and said the referral was made to support Mr Y to communicate his views and consent was not needed.
13. Mr X replied saying he had complained formally. The Council responded to the complaint in July. Mr X said he did not receive the letter until October, although the case records indicate it was sent on 9 July. A member of the Council’s complaints team told me there was an administrative error which meant he did not email Mr X a copy of the complaint response until Mr X chased it up in October.
14. The Council’s complaint response said:
• The Council had a duty to consider advocacy where an adult has difficulty understanding and taking part in an assessment
• It was sorry this was not explained earlier
• There was no requirement to seek consent
• Advocacy should have been identified at the start. The social worker explained the role of an advocate in an email in April
• It was sorry the social worker did not reply to one of his emails
• It was also sorry the social worker made the advocacy referral without telling him before, but there was no intention to mislead or be dishonest
• It wanted to arrange a date to complete the review of Mr Y’s care and support.
15. Unhappy with the response, Mr X complained to us.

Findings

16. There was fault by the Council. There should have been a full discussion with Mr and Mrs X before referring Mr Y to an advocate. This was because Mr Y’s care and support plan did not identify the need for an advocate. The preparatory documentation for Mr Y’s review did not identify a need for advocacy either. So there was no clear reason for an advocacy referral. There is nothing in the records to suggest the Council did not consider Mr and Mrs X appropriate people to support and represent Mr Y during the care review.
17. The Council’s complaint response is accurate in saying the Council did not need Mr and Mrs X’s consent, however, in terms of good working relations between informal carers and the Council, my view is there should have been a discussion about referring Mr Y to advocacy as set out in the previous paragraph.
18. There was also a delay in responding to the complaint which was fault. The complaint response is however appropriate in content.

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Agreed action

19. The Council will, within one month of my final decision:
• Apologise to Mr X and Mrs X for the fault identified (the delay in sending the complaint response; the Council has already apologised for poor communication by the social worker)
• Make them a payment of £150 to reflect the avoidable distress (delay in receiving the complaint response and making a referral to an advocate without prior discussion).
20. This will enable Mr and Mrs X to move on and for the Council to complete the outstanding review of Mr Y’s care and support plan. I am not making any recommendations for a timeframe for completing the review of Mr Y’s care and support plan because it depends on input and availability of Mr and Mrs X.
21. Mr and Mrs X asked me to make other recommendations including removal of the social worker, meeting with Mr Y and a promise not to reduce Mr Y’s direct payment. I have not made these recommendations because they are disproportionate and because it is not our role to direct the Council on the scope or outcome of the review of Mr Y’s care and support plan.

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Final decision

22. There was poor communication with Mr X and Mrs X about a referral to an advocate and a delay in complaint handling. This was fault which caused avoidable distress and time and trouble. The Council will apologise and make a payment of £150 to reflect the injustice.
23. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman