Summary: Ms X said the Council was not providing the property protection service Mr Z was paying for and its failure to do so might affect Mr Z’s ability to meet his care costs. We found fault in the Council’s service delivery but it did not cause Mr Z significant personal injustice. We also found fault in the Council’s handling of Ms X’s complaint about its property protection service, which was frustrating for Ms X. To put matters right, the Council agreed to apologise to Ms X and make a symbolic payment of £200.

The complaint

1. Ms X said the Council was not protecting and properly maintaining Mr Z’s vacant property. So Mr Z was not getting value for money for the monthly charge he paid the Council to look after his property until it was sold.
2. Ms X was concerned that if the Council did not look after Mr Z’s property it would deteriorate and lose value. Mr Z might then have insufficient funds to meet his residential care costs. Ms X wanted the Council to explain why it was not looking after Mr Z’s property. Ms X also sought a partial refund of Mr Z’s monthly payments.
3. Ms X also complained about the Council’s complaints handling.

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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 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)
5. We may investigate complaints made on behalf of someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. Here, the Court of Protection appointed a deputy to make decisions for Mr Z. The court appointed deputy provided written consent for Ms X to act in bringing this complaint for Mr Z. (Local Government Act 1974, section 26A and 34C, as amended)
6. 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(i), as amended)

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How I considered this complaint

7. I have:

• considered Ms X’s written complaint and supporting papers;
• talked to Ms X about the complaint;
• considered information about the complaint provided by the Council;
• shared Council information with Ms X; and
• shared a draft of this statement with Ms X and the Council and considered any comments received before making a final decision.

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What I found

Background

8. Adults may have their care and support needs met by a placement in a residential care home. Some adults cannot look after their property and have no one to do so for them. In such cases, if councils consider the adult’s property is in danger of loss or damage, they have a legal duty to prevent or reduce that loss or damage. To carry out the duty, the council may enter the adult’s former home. Councils may also recover their reasonable expenses, from the adult, in carrying out the duty. (Care Act 2014, section 47)

Summary of what happened

9. The Court of Protection appointed a deputy to manage Mr Z’s affairs. In summer 2023, Mr Z moved into a residential care home. The Council said the police, an advocate, and one of its social workers was present when it responded to a request to secure Mr Z’s former home (‘the Property’). Later, having entered the Property, the Council found an issue needing pest control. The Council said it acted under its section 47 duty (see paragraph 8).
10. About two weeks later, Ms X, being aware of Mr Z’s move and the Council’s involvement, asked about its costs for protecting the Property. The Council said it charged £342 a month. The charge covered it insuring the Property, monthly insurance inspections, any necessary front garden works, and other matters, for example, minor repairs. Ms X then told the Council that Mr Z’s front garden was overgrown and included a fly tipped item.
11. About two months later, Ms X contacted the Council saying the fly tipped item remained in the front garden, which was still overgrown. The Council replied saying its contractors would soon deal with the garden. And, if the contractors could not remove the fly tipping, it would ask its waste collection department to do so.
12. Around the same time, the Council’s contractor attended the Property. However, the Council said an incident at the Property meant its contractor left without carrying out any gardening. The Council said it viewed what happened as anti-social behaviour and a health and safety issue for its contractor. It told its contractor not to return to the Property until it completed a risk assessment. The Council did not tell Ms X about the incident.
13. Ms X continued to contact the Council, saying there had been no change to the front garden. Ms X also contacted both Mr Z’s local councillor and Member of Parliament (MP) about the Council’s failure to protect the Property while taking his monthly payment.
14. In summary, the Council’s responses to Mr Z’s councillor and MP confirmed two of its officers visited the Property each month. They did not enter the Property on health and safety grounds because of the pest control issue. The Council also referred to the anti-social behaviour incident and said it had delayed gardening work. It aimed to restore the front garden by spring 2024. The Council apologised for any seeming lack of action and inconvenience to Ms X.
15. Ms X considered the Council’s responses showed it was not providing the services covered by its monthly charge (see paragraph 10). Ms X also reported a possible break in of sheds in the rear garden of the Property. And, about six months after Mr Z’s move, Ms X formally complained to the Council. Ms X said the failure to carry out gardening works for six months was unacceptable. The Council had also failed to deal with the pest control issue or check the rear garden sheds for a possible break in. Ms X asked the Council for a significant refund of Mr Z’s monthly fee. Ms X also sought confirmation the Council would deal with the front garden, fly tipping, pest issue and check the rear sheds at the Property.
16. In responding to Ms X’s complaint, the Council said its monthly charge covered the responsibility it had taken on for the Property. This included insuring the Property and checking it for security and maintenance purposes. Gardening work was discretionary and mainly carried out in the growing season. So, it was aiming to restore the Property’s front garden in spring 2024. The Council also gave Ms X a date for when it would remove the fly tipping and deal with the pest control issue at the Property. The Council sent Ms X photographs showing it had secured the rear garden sheds, which had been broken into. The Council also said it would repair boundary fencing to further secure the Property. In its final response, the Council upheld Ms X’s complaint except for her concerns about a break in at the Property. The Council said its last two inspections had found no evidence of a break in at the Property. And, in recognition of the delays in providing services, the Council said it would not take any further payments from Mr Z until completion of the outstanding works.
17. Ms X complained to the Ombudsman after the Council’s date for completing the outstanding works passed but the fly tipping remained at the Property. Ms X sought more information about the Council’s actions in dealing with the Property and a partial refund of Mr Z’s monthly payments. Ms X also asked why the Council needed a two stage complaints procedure and why it changed its position on her complaint between stages one and two.

The Council’s comments to the Ombudsman

18. The Council said it had not charged Mr Z for services linked to the Property. It would calculate and agree the costs, when appropriate, with the court appointed deputy. The monthly charge was not payable in the first month. This gave people an opportunity to make their own arrangements to protect and secure an adult’s property. It would also reasonably adjust Mr Z’s costs to reflect the time when health and safety concerns prevented gardening and internal inspections.
19. The abortive visit to maintain the front garden of the Property took place in early autumn 2023. As it carried out gardening works in the growing season, restoration of the garden had not then taken place until early spring 2024.
20. The Council recognised the fly tipping remained at the Property. It said its contractor had moved the fly tipping when restoring the front garden. The fly tipping was now in the Property’s rear garden behind a fence. So, the fly tipping was not visible when its waste service came to collect it.
21. Since dealing with the pest control issue, its officers were inspecting the Property both internally and externally.
22. The Council also said a two stage complaints procedure was considered best practice and most councils used a two-stage procedure. Stage two allowed it to further consider unresolved complaints.

Consideration

23. Our role is to consider whether the Council has acted with fault and, if so, whether this has caused injustice for which we should provide a remedy. Doing so does not mean this statement must address every point and query raised in Ms X’s complaint papers. So, while I carefully considered all Ms X’s information, my investigation focused on whether there was evidence of fault by the Council.
24. I found there was avoidable delay in the eight months it took the Council to restore the Property’s front garden and deal with the pest control issue. And this was fault.
25. The Council explained why fly tipping had not been removed on the date it had given Ms X. I had no reason to doubt what the Council said as there was no dispute the fly tipping was moved to the rear of the Property. And the Council’s published information about its bulky waste collection service said waste must be left at the front of a property as close as possible to the kerbside. Unfortunately, once behind the Property, the fly tipping was not visible for removal by the Council’s waste collection service.
26. I saw no evidence the eight months it took to restore the front garden and start internal inspections caused any substantive loss or damage to the Property. And the failure to remove the fly tipping did not lead to further substantive fly tipping at the Property. I therefore found the Council’s avoidable delay in providing services at the Property did not cause Mr Z significant personal injustice.
27. Ms X was also dissatisfied with the Council’s complaints procedure. However, it was for the Council to decide how it dealt with complaints. And, the Council was correct in saying many councils have two stage procedures. I recognised Ms X used her time to complete the Council’s complaints procedure. However, complaining inevitably takes time.
28. A two stage complaints procedure allows complainants, and the Council, to further consider a complaint remaining unresolved at stage one. Here, the Council changed its position from not upholding most of Ms X’s complaint at stage one to mainly upholding it at stage two. However, despite largely upholding Ms X’s complaint, the Council did not offer a partial refund of Mr Z’s monthly payments. And this was the key outcome Ms X sought in complaining to the Council. It was therefore regrettable that it was only later, in responding to Ms X’s complaint to the Ombudsman, the Council said it had not taken any payment from Mr Z.
29. I found the Council’s failure to tell Ms X it had not received any payments from Mr Z, given the contents of her correspondence and complaint, was fault. If the Council had made this clear, in its stage one complaint response, it may have avoided Ms X pursuing the complaint, including coming to the Ombudsman. The Council’s failure to make the financial position clear would have been frustrating for Ms X. I therefore found the Council fault I identified caused Ms X injustice.

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Agreed action

30. The Council said, when it charged for its protection services to the Property, it would take account of the delayed garden works and internal inspections. And its charges would be agreed with Mr Z’s court appointed deputy. These were matters for the future and did not directly concern Ms X.
31. However, I identified fault causing injustice to Ms X (see paragraph 29). To address the injustice to Ms X, the Council agreed:

• (within 20 working days of this statement) to send Ms X a written apology and make a symbolic payment of £200. The apology and payment were to recognise the frustration caused by the Council’s failure to tell Ms X it had not yet charged Mr Z for its protection services to the Property.
• (within 20 working days of this statement) to arrange the removal of fly tipped material at the Property.

32. We publish guidance on remedies which includes information about making effective apologies. The Council should consider this guidance in making the apology agreed at paragraph 31.
33. The Council also agreed to provide us with evidence it complied with the agreed actions at paragraph 31.

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Final decision

34. I completed my investigation on the Council agreeing the actions at paragraph 31 finding:

• fault but no injustice in the Council’s provision of protection services to the Property; and
• fault and injustice to Ms X in the Council’s complaint handling.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman