Summary: The Ombudsman has not investigated most of Mrs B’s complaints as they are out of time, relate to court proceedings, relate to another council or are out of the Ombudsman’s jurisdiction for another reason. There is no evidence of fault in the Council’s review of its decision that Mrs B has a single point of contact in her communications with the Council and in its offer of a carer’s assessment.

The complaint

1. Mr and Mrs B have a Lasting Power of Attorney for property and finance for Mr B’s mother, Mrs C.
2. Mrs B made a number of complaints relating to:
• The Court of Protection’s (COP) court proceedings issued by another council (council K) in 2012 to gain deputyship for Mrs C.
• Council K’s failure to carry out a mental capacity assessment of Mrs C before it started the COP proceedings.
• The Council’s statements to the police about the COP proceedings.
• The Council’s refusal to grant consent to sell Mrs C’s house.
• Historical and current payments for Mrs C’s care.
• The Council’s restrictions on Mrs B’s contact with the Council.
• The Council’s failure to assess Mrs C as a carer or to offer her a carer’s assessment.

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What I have investigated

3. I have investigated Mrs B’s complaint that the Council’s restriction on her contact with the Council is unfair and its failure to provide a carer’s assessment. Paragraph 41 explains why I have not investigated her other complaints.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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 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)
6. 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 has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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

8. I have discussed the complaint with Mrs B. I have considered the documents that she and the Council have sent and the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law, guidance and policies

Care Act 2014

9. The Care Act 2014, the Care and Support Statutory Guidance 2014 (updated 2017) set out the Council’s duties and rights.
10. The guidance says that where an individual provides care for another adult and it appears the carer may have any needs for support, local authorities must carry out a carer’s assessment.

Unreasonable conduct

11. The Council has guidance on how it manages unreasonable customer conduct. This guidance is in line with the guidance the Ombudsman has written on the subject.
12. The Council’s guidance defines unreasonable behaviour as any behaviour by a customer which ‘because of its nature or frequency raises substantial health, safety, resource or equity issues for the council.’
13. It sets out the types of restrictions it can impose which includes:
• placing time limits on telephone conversations and personal contacts;
• restricting the number of telephone calls that will be taken.
• limiting the customer to one medium of contact (telephone, letter, email etc.) and / or requiring the customer to communicate only with one named member of staff;
• requiring any personal contacts to take place in the presence of a witness;
• refusing to register and process further communications about the same matter; a designated officer is to be identified who will read future correspondence;
• not meeting the customer alone; face to face or on home visits;
• banning from council buildings.
14. The guidance says that if a decision is taken to apply the procedure, the customer must be provided with a copy of the process and informed in writing that:
• the decision has been taken;
• what it means for their contacts with the council;
• the time period for which the restrictions will last; and
• what they can do to have the decision reviewed.
15. When reviews are carried out, the Council informs the customer of the outcome in writing and, if restrictions continue to be applied, says when these will next be reviewed.

Background

16. In 2012, another council (council K) started Court of Protection (COP) proceedings to obtain deputyship for Mrs C. Milton Keynes Council joined the proceedings.
17. The proceedings ended on 15 March 2013. The outcome of the proceedings was:
• Mrs C had the mental capacity to make a decision about where she wanted to live and she could live with Mr and Mrs B.
• Mr and Mrs B could not sell Mrs C’s house without the COP’s or the Council’s consent.
• Mr and Mrs B could not use the proceeds of the sale to fund legal proceedings.
18. Mrs C lived with Mr and Mrs B and received care from a care agency. She also attended a day centre.
19. Mrs B had made a number of complaints to the Council about the court proceedings and Mrs C’s care.
20. The Council imposed a single point of contact on Mr and Mrs B on 26 March 2013. The decision was made because of the volume and nature of Mrs B’s communications with the Council. The Council imposed the same restriction on Mr B as it said that Mrs B would use his email address to communicate with the Council.
21. In 2014, the Ombudsman investigated the Council’s decision to impose contact restrictions on Mrs B. The Ombudsman found no fault in the Council’s decision. The Ombudsman also investigated Mrs B’s complaint that the Council had not offered her a carer’s assessment and found no fault.
22. Mrs B complained to the Ombudsman about the single point of contact and the lack of lack of carer’s assessment (among other things) in 2016. The Ombudsman investigated again and found no fault in the Council’s restriction on Mrs B’s contact, nor in its offer of a carer’s assessment. However, it said the Council should review its decision of Mr B’s restriction of contact and should consider whether this should only relate to complaints about Mrs C’s care or to any Council business.
23. In 2017 Mrs C’s needs had increased and she started to live at a care home. The NHS funded the placement under continuing health care funding from 18 May 2017.
24. Mrs C stopped being eligible for continuing health care funding on 16 January 2019. As Mrs C owned assets over the threshold to be eligible for Council funding, she was assessed as a self-funder.
25. Mr and Mrs B started COP proceedings on 18 December 2018 as litigants in person. They applied for an order for (among other things):
• Permission to sell Mrs C’s house.
• The removal of the restriction that they could not use the funds from the sale of the house for litigation.
• An order prohibiting the Council’s staff from having contact with Mrs C.
• An order saying that Mrs C’s will from 2008 would not be contested.
• The Council to fund Mrs C’s care.
• Council K to be joined to the proceedings.
26. The court proceedings are ongoing and the matter is listed for a final hearing in November 2019. The Judge has appointed a solicitor as an interim deputy for Mrs C.

The restriction on Mrs B’s contact.

27. The current contact measures are:
• There is a single point of contact with a dedicated email address.
• Emails sent to other Council staff will be deleted unread.
• Mr and Mrs B are not permitted to contact the Council by telephone.
• Mrs C’s social worker will contact them as necessary.
• Emails and letters must be of no more than 250 words in length.
• Any communication must not contain any insulting or derogatory comments.
• When Mr and Mrs B attend the place of business of the Council, they must not behave in an aggressive, intimidating, insulting or disrespective manner.
• The Council will not deal with complaints that have been previously dealt with unless there is significant new information.
• Any safeguarding alerts or referrals must be sent to the single point of contact.
• The Council will consider new complaints on their merits.
• The Council does not give Mr and Mrs B permission to electronically record any conversation or incident involving Council staff.
28. The Council reviews the restriction on a six-monthly basis.
29. The Council wrote to Mr and Mrs B on 10 October 2018 and said:
• It had reviewed her contact over the last six months to decide whether restrictions were still required.
• Mr and Mrs B’s contact continued to be disproportionate, confusing and at times aggressive.
• Mr and Mrs B did not accept the explanation and advice given by officers and continually asked the same things to be considered and reconsidered.
• Mr B was subject to a single point of contact only regarding matters relating directly or indirectly to complaints regarding Mrs C’s care. Mr B could conduct other council business outside of this single point of contact.
• The Council would continue the contact arrangements. The requirements were a reasonable and proportionate means of allowing contact in a way that did not constitute harassment.
• If Mr and Mrs B continued to breach the requirements, the Council would consider legal action to apply for an injunction or other enforcement action.
• It informed them of their right of appeal.
30. The Council reviewed the measures on 10 April 2019 and wrote to Mr and Mrs B to inform them that the measures remained in place.
31. The Council said Mrs B continued to send a lot emails, which were longer than the allowed 250 words and she sent them to different people in the Council. For example, during the period from 1 April 2018 until 7 August 2018, Mrs B sent 54 emails. The Council said Mrs B also continued to call the Council and said that during these calls she was persistent in volume and abusive. It estimated she made at least 30 to 40 calls during the review period.

Carer’s assessment

32. The relevant dates are:
• The Council wrote to Mrs B on 2 March 2017 and gave her a venue, date and time for a carer’s assessment. It said that, if she was unable to make that appointment, she could suggest another one.
• The Council wrote to Mrs B on 28 July 2017 offering a carer’s assessment and asked her to propose a venue and date and time when she would be able to attend.
• The Council wrote to Mrs B on 28 February 2018 and 7 March 2018 as the CHC funding was due to end. It invited Mrs B to the assessment of Mrs C and offered dates. It said it would arrange a date for the carer’s assessment at Mrs C’s assessment.
• The Council wrote to Mrs B on 8 August 2018 offering a carer’s assessment.
• The Council wrote to Mr and Mrs B on 15 February 2019, 11 March 2019, 11 April 2019 and 5 June 2019 because the CHC funding had ended. The Council wanted to carry out assessments of Mrs C’s needs and finances and invited Mr and Mrs B so they could be involved in the assessments.
33. The Council says Mrs B has either not responded to the above correspondence or she has declined to attend.

Analysis

Restriction on contact

34. I have not investigated the Council’s original decision in 2012 to restrict Mrs B’s contact. The Ombudsman has already investigated this decision and found no fault. I have investigated whether there was any fault in the way the Council reviewed the measures in the last year.
35. I find no fault in the Council’s actions. The Council’s actions are in line with its own guidance and the Ombudsman’s guidance. The Council has set out clearly what the restrictions are on Mrs B’s contact. The restrictions allow for continued communication between Mrs B and the Council but protect the Council’s staff.
36. The Council says Mrs B has continued to breach the conditions. The Council has considered this in its review. I cannot question the merit of a decision if there is no fault in the way the decision was made.
37. The Council has reviewed the measures every six months. It has written to Mr and Mrs B to set out the outcome of the review and the reasons for its decision. It told them they had a right of appeal. The Council has followed the correct process to carry out a review and I find no evidence of fault.
38. I note that the Council has reviewed Mr B’s restrictions, as recommended in the Ombudsman’s previous decision and Mr B can now communicate with the Council without restriction on matters not related to Mrs C’s care.

Carer’s assessment

39. I find no fault in the Council’s actions. The Council has offered Mrs B a carer’s assessment on several occasions and has offered her involvement in the assessments of Mrs C. The Council cannot carry out a carer’s assessment if Mrs B does not cooperate.

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Final decision

40. I have completed my investigation and have not found fault by the Council.

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Parts of the complaint that I did not investigate

41. I have not investigated the following complaints:
• Complaints relating to the current court proceedings and anything discussed in those proceedings. These complaints relate to court proceedings and are therefore out of the Ombudsman’s jurisdiction.
• Complaints relating to the COP proceedings from 2012. These complaints are out of time and relate to court proceedings.
• Complaints relating to the Council’s consent to sell Mrs C’s house. This relates to an undertaking made at the COP in 2012 and is subject to current proceedings at the COP.
• Complaints relating to the historic or current funding of Mrs C’s care. Some of these complaints are out of time and the finances are the subject of current court proceedings.
• Complaints about the mental capacity assessments while Mrs C lived in a different area. These complaints relate to a different council and relate to events that are out of time.
• Complaints relating to the time when Mrs C’s care was funded by the CCG. These are out of the Local Government and Social Care Ombudsman’s jurisdiction. The Parliamentary and Health Services Ombudsman investigates complaints relating to the NHS and CCGs.

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Investigator's decision on behalf of the Ombudsman