Summary: Mr X complained about the Council’s unsuccessful application to seek welfare deputyship over his sister - Ms Y. Mr X also raised concerns about the Council’s handling of the complaint, the care Ms Y received and the actions of the Council and its staff. He says that this issue has cost substantial legal fees and caused much distress to him and his family. We found the Council at fault which caused Mr X injustice. The Council will act to apologise in consideration of this.

The complaint

1. Mr X complained about the Council’s unsuccessful application to seek welfare deputyship over his sister – Ms Y. Mr X has raised several complaints against the Council which I have summarised under the following areas:
1. Appointment of somebody else (Ms Z) over financial matters for Ms Y and the actions of Ms Z.
2. Failure to complete independent mental capacity assessments.
3. Safeguarding issues at the supported living home.
4. End of Tenancy at supported living home and collection of belongings.
5. Best interests meeting and information being provided the day before.
6. No care assessment when Ms Y moved properties
7. No new social worker appointed or advocate.
8. Legal fees occurred because of court action.
2. Mr X confirms that this issue has caused his whole family a lot of distress and Ms Y has spent a large amount in legal fees because of this issue.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), 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(1), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I have and have not investigated

7. Although many concerns are over events which occurred more than 12 months ago and could be considered outside our jurisdiction due to time, I have decided to exercise discretion. This is because the matter went to court and it was reasonable for Mr X to use this route. The court made its decision and stated that Mr X was entitled to seek further justice from the Local Government and Social Care Ombudsman (LGSCO) regarding costs. After the court case finished, Mr X brought the complaint to LGSCO.
8. Mr X has raised concerns over the failure for the Council to respond to a subject access request. However, any matters relating to a subject access request, would fall under the remit of the Information Commissioner Office (ICO) and will not be considered in this investigation.
9. Mr X also says the Council’s staff lied in the Court of Protection case. However, we cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended).
10. Mr X has also made allegations into stealing and a potential kidnapping however these matters would be for the police to investigate.

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How I considered this complaint

11. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.
12. I have also considered the relevant statutory guidance, as set out below. In addition, I have considered the Ombudsman’s published guidance on remedies.

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What I found

What should have happened

13. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
14. 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. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. 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.
15. Councils must carry out assessments over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell people when their assessment will take place and keep them informed throughout the assessment.
16. Where somebody provides or intends to provide care for another adult and it appears the carer may have any needs for support, the council must carry out a carer’s assessment. A carer’s assessment must seek to find out not only the carer’s needs for support, but also the sustainability of the caring role itself. This includes the practical and emotional support the carer provides to the adult.
17. As part of the carer’s assessment, the council must consider the carer’s potential future needs for support. It must also consider whether the carer is, and will continue to be, able and willing to care for the adult needing care. (Care and Support Statutory Guidance 2014)
18. An adult with possible care and support needs or a carer may choose to refuse an assessment. In these circumstances councils do not have to carry out an assessment. Where a council identifies that an adult lacks mental capacity and that carrying out a needs assessment would be in the adult’s best interests, it must do so.
19. Sometimes councils have to decide between themselves which organisation has to meet someone’s eligible care needs under the Care Act 2014. They do this by deciding where the person is ‘ordinarily resident’. There is no definition of ordinary residence in the Care Act, therefore, the term should be given its ordinary and natural meaning.
20. The courts have said this means where someone normally lives “as part of the regular order of [their] life, for the time being, whether of short or long duration” [Shah v London Borough of Barnet (1983)]. Where doubts arise about a person’s ordinary residence, it is usually possible for councils to decide that the person has been in one place long enough, or has firm enough intention towards that place, to have acquired an ordinary residence there. Sections 18 and 20 of the Care Act 2014 says a council must meet the eligible needs of people if they are present in its area but are of no settled residence. In this regard, people who have no settled residence, but are physically present in the council’s area, should be treated in the same way as those who are ordinarily resident.
21. There may be some cases where a council considers it proper for the person’s care and support needs to be met by providing accommodation in another council area. Section 39 to 41 of the Care Act and the regulations set out what should happen in these cases. They specify which council is responsible for the person’s care and support when they are placed in another council’s area. The principle is the person placed ‘out of area’ is considered to continue to be ordinarily resident in the first or ‘placing’ authority area and so does not get an ordinary residence in the ‘host’ or second authority. The council which arranges the accommodation, therefore, keeps responsibility for meeting the person’s needs.
22. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular 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.
23. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established 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.

24. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
25. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

26. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
27. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.
28. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
29. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection:

• decides whether a person has capacity to make a particular decision for themselves;
• makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
• appoints deputies to make decisions for people lacking capacity to make those decisions;
• decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid; and
• removes deputies or attorneys who fail to carry out their duties.

30. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.
31. The Supreme Court defined deprivation of liberty as when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
32. If there is a conflict about a deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection.

What happened

33. Ms Y moved into a supported living placement several years ago. In 2023 the placement broke down and she moved out to live with her sister. Mr X says that he is unhappy with this decision, the actions of care staff, and the lack of support from the Council around this time.
34. The Council were concerned about Ms Y’s capacity and made an application to the Court of Protection to say that it was in Ms Y’s best interest to move to a different supported living placement. It also raised concerns about Mr X. An interim decision decided that Ms Y lacked capacity, however this decision was reversed after an independent medical assessment in 2024.
35. The Court of Protection declined to make an award into the costs requested by Mr X and stated that he could approach LGSCO instead.

Appointment of somebody else (Ms Z) over financial matters for Ms Y and the actions of Ms Z.

36. Mr X is unhappy with the appointment with Ms Z over Ms Y’s financial matters and the Council lack of investigation into the actions of Ms Z.
37. The Council completed a safeguarding investigation in 2024, where it recorded the concerns of Mr X and conducted an interview with Ms Z. Ms Z says that she has been an appointee to Ms Y’s finances since 2015 and before this her mother had done so.
38. I note that Mr X is unhappy with the appointment of Ms Z however we cannot investigate late complaints unless we decide there are good reasons to do so.
39. Ms Z was also appointed by the Department of Works and Pensions and so the appointment would not be something we could find fault against the Council for.
40. Mr X has also raised concerns into the actions of Ms Z including an allegation of fraud. However as explained above, this would be a matter for the police and or the courts to determine.
41. I am satisfied by considering the matters in a safeguarding investigation the Council did attempt to investigate these matters.

Failure to complete independent mental capacity assessments

42. Mr X says he requested the Council to complete an independent mental capacity assessment in 2023 on several occasions.
43. The Council says that it carried out a mental capacity assessment in May 2023 for finances, however this was stopped. It was confirmed that Mr X and his sister were applying for power of attorney over Ms Y. A further assessment took place in July 2023 however Mr X disagreed with the level of care and support put in place.
44. The evidence shows the Council did complete assessments into Ms Y’s mental capacity. I note that Mr X remains unhappy with the outcome of these assessments completed. However, the process to dispute this would be through the Court of Protection, which can then order further reassessments.
45. In this circumstance, I note the Court of Protection initially agreed that Ms Y lacked capacity however after a further independent assessment, it found that Ms Y did have capacity. Overall, as the Council completed an assessment and Mr X had this matter considered in court, there is no injustice we can remedy regarding this.

Safeguarding issues at the supported living home

46. Mr X says that Ms Y was mentally and psychologically abused at the assisted living home. He reports the Council admitted this in a best interest meeting in July 2023. However, despite making numerous complaints, Mr X says the Council has not investigated or done anything about this.
47. The Council completed a safeguarding investigation in 2024. In this investigation, a member of staff at the assisted living home admitted to being unprofessional in their interactions between Ms Y and her family members. It also investigated other issues raised by Mr X including an issue to do with a gas certificate and staff members going through Ms Y’s belongings. It sent the outcome of the investigation to Mr X.
48. From reviewing the safeguarding findings there does seem to be a lack of follow-up into the actions of staff during this time. While the overall outcome to the safeguarding investigation is inconclusive, a staff member does admit to being unprofessional in their conduct. There are also the allegations into staff going through Ms Y’s belongings which I would have expected the Council to have investigated further.
49. As such I consider the failure to do so to be fault by the Council. This fault would have caused Mr X distress, in his belief the Council were not treating him fairly or acting over this matter. I consider the Council should therefore apologise to Mr X in consideration of this.
50. I am mindful of the time since the incident took place and that Ms Y is no longer a resident. I have also considered that at the time the staff member had committed to being reflective of their service. Subsequently I do not consider that any further action would be warranted from the Council.

End of Tenancy at supported living home and belongings

51. Mr X says Ms Y was evicted from the supported living home and the Council did nothing to help Mr X regarding this. He says the staff at the supported living home refused to allow him access to collect Ms Y’s belongings.
52. The Council say the relationship between Mr X and the assisted living home had broken down, and it was decided the tenancy should end.
53. Although I recognise Mr X’s concern about how the tenancy ended, he has reported he was unhappy with the level of support and care Ms Y was receiving in the home. In September 2023 he wrote to the Council and told it that in his opinion it was in Ms Y’s best interest to move out of the home.
54. It is also important to consider that before September 2023, it was determined that Ms Y lacked capacity, that Mr X was not an appointee of Ms Y finances, nor did he hold power of attorney over Ms Y. Therefore, the Council at this point were entitled to refuse to provide information about Ms Y to Mr X.
55. I recognise the relationship between Mr X and the assisted living home had broken down by the point that Ms Y’s tenancy had ended. Also, the home had told Mr X to stay away. However, after Ms Y moved out, there should have been a facility offered for her belongings to be removed. Otherwise, the home would have had to dispose of Ms Y’s belongings.
56. Eventually the issue was resolved by the police being called and Mr X being able to remove the belongings. However, I do consider it fair the Council should and could have done more to avoid this issue occurring. Given it was aware of the breakdown of the relationship at the time. I find therefore the Council should apologise to Mr X for the distress it caused.

Best interests meeting and information provided the day before

57. Mr X says the Council only provided him with information the day before the best interests meeting. He also says the Council ignored his complaint about this.
58. While I recognise the frustration caused by receiving information at short notice, the Council did provide Mr X with the information. I do consider that it should apologise to him for the overall distress caused in this delay and for the failure to acknowledge the complaint.

No care assessment when Ms Y moved properties

59. Before Ms Y’s move in September 2023, the Council completed an advocate report. The advocate asks Ms Y of her thoughts over the move and the level of support which will be offered. Ms Y responds to say that she is happy with the level of support put in place by Mr X and his sister.
60. The Council also completed a safeguarding investigation in February 2024. However, this report contains interviews conducted both before and after the move. It includes a meeting held with Mr X, his sister and Ms Y in October 2023.
61. The meeting reports that Mr X’s sister had caring qualifications and was coping caring for her sister. Mr X reports that no care assessment or plan had taken place.
62. The Council in the meeting told Mr X that a social worker had tried to contact Ms Y however Mr X reported that this had made Ms Y anxious. The Council agreed after the meeting, to offer a care assessment.
63. An assessment then took place in January 2024. In March 2024 a mental capacity assessment took place and supported Ms Y’s request to move into her own property.
64. Overall while the Council did complete an assessment in January 2024 this was almost four months after Ms Y had moved properties. I accept there was at the time a breakdown in trust between Mr X and his family and the Council. Also, the Council tried to complete an assessment sooner. However, the assessment should have been completed prior to the move.
65. The advocate report does indicate that Ms Y was in favour of the move. However, the Council could have done more to ensure that a care plan was in place at the time of the move.
66. I also must however consider that Ms Y had moved in September 2023 outside the Council’s area of responsibility. Under the care and support statutory guidance (Section 19.5) it states that if a person has moved into a Council area it becomes their ‘ordinary residence’. This means it would normally be that Council’s responsibility to provide care services and support.
67. However, the Council has accepted that it owes Ms Y continuing care and support. Although there was a delay in the assessment taking place, there is no confirmed injustice caused by the Council’s failure. The meeting at the time, reported Ms Y was happy with the move and so I consider it fair the Council should apologise for the distress this issue caused Mr X.

No new social worker or advocate

68. Mr X says that no new social worker or advocate has been appointed by the Council. The Council say it provided 15 hours of outreach support each week from May 2024 until Ms Y moved again.
69. After Ms Y move in September 2023, the Council attempted to contact Ms Y through a social worker however this caused Ms Y anxiety.
70. Despite the move, the Council did offer support services until Ms Y moved again. Ms Y now lives in an area beyond the Council’s responsibility. It would be the responsibility of the new Council to offer social and advocate services. Overall, in consideration of the complaint and circumstances mentioned above, I do not consider that any further award or action is warranted from the Council.

Legal fees occurred because of court action

71. Mr X says Ms Y has incurred legal fees because of the Council’s action in taking the matter to court.
72. Our guidance states we can award against court action if it was shown the Council were at fault for starting the proceedings. The Court of Protection found the Council had legitimate reasons for starting the proceedings.
73. The matter over the capacity of Ms Y is complex and I note that at first the court agreed that Ms Y had no capacity. However, after further evidence and consideration it concluded that she does have capacity.
74. I must also consider the impact an award against the Council for court costs could have. I do not want this to act as a deterrent from the Council in taking matters to court, if it has legitimate safeguarding concerns. The potential failing from this could be serious and cause other people potential harm by the reluctance of the Council.
75. The safeguarding investigation report showed that Ms Y’s doctors had raised safeguarding concerns and there was an active dispute over the capacity of Ms Y. I therefore do not consider the Council were at fault for raising this matter to court. As such, I do not recommend the Council should be responsible for Ms Y’s court costs.

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Action

76. Within four weeks of my final decision, the Council has agreed to:
1. Provide an apology to Mr X for the distress caused in the failure to take certain actions in the safeguarding investigation, for the difficulty in the removal of belongings at the home and the delay in completing a care assessment.
77. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
78. The Council should provide us with evidence it has complied with the above actions.

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Decision

79. I find fault causing injustice. The Council has agreed to apologise to remedy the injustice.

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Investigator's decision on behalf of the Ombudsman