Summary: Ms X complained about how long the Council took to make an application to the Court of Protection to sell her share of her former home. This has caused her unnecessary expense. The Ombudsman has found there has been some avoidable delay that has caused Ms X an injustice. To remedy this, the Council has agreed with the Ombudsman’s recommendation to apologise and cover Ms X’s rent for some of this time.

The complaint

1. The complainant, whom I shall refer to as Ms X, complains the Council, acting as her Deputy, has taken too long to make arrangements to sell her house. Because of this she has been paying rent for longer than necessary.
2. Ms X is represented by her brother, Mr P, in making this complaint.

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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. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

5. (Local Government Act 1974, section 26A(2), as amended)
6. 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

7. I discussed the complaint with Mr P and considered the written information he and another family member provided. I made written enquiries of the Council. I took account of all the information before reaching a draft decision on the complaint. This has been sent to both parties for comment.

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What I found

Court of Protection

8. The Court of Protection (“the Court”) deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
9. The Court of Protection may need to become involved in difficult cases or cases where there are disagreements that 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.

The facts

10. In 2015, Ms X had a stroke. This left her with partial paralysis and brain damage. In February 2016, she was discharged home from hospital. Ms X lived in property she part owned with a housing association. Ms X owned 15% but still paid rent on share of the property still owned by the housing association. Ms X struggled to manage at home and so moved to a care home in April 2016.
11. As time went on, it became clear that Ms X would be unable to live in her own home again. But she was still liable for rent and this was affecting her income. Her family said they were not able to deal her finances anymore because it was affecting their ongoing relationship with Ms X.
12. In November 2017, the family asked the Council to take over responsibility for Ms X’s property and affairs. At that time, it was recorded that the housing association was considering taking Ms X to court to repossess the property but that a mental capacity assessment indicated that Ms X did not have capacity to agree to this. The only way of releasing Ms X’s liability was for a Deputy to be appointed and to obtain an order from the Court. By this time, Ms X was already in arrears of £2000.
13. Ms X’s case was allocated to a new social worker in December 2017.
14. In January 2018, because Ms X was no longer returning home, her housing benefit stopped. From this date she was liable for all of the rent. The housing association agreed to allow the rent arrears to accrue and would be discharged when Ms X sold her part share.
15. Later that month, the Council completed a mental capacity assessment which determined Ms X did not have capacity to manage her property and finances. The Council also made a best interest decision to manage Ms X’s finances. In order to so, the Council had to make an application to the Court of Protection to become Ms X’s Deputy.
16. The social worker had to seek approval from the Council’s finance panel to proceed with the application. This panel advised the social worker to, “reassess Ms X with particular regard to the more complex issues such as her shared property ownership and the implications of the sale of her share”. The application was then paused whilst the necessary assessments were completed.
17. The application was submitted to the Court in March 2018.
18. The Court made the order appointing the Council as Ms X’s Deputy in June 2018.
19. This Order contained a clause stating any joint property could not be sold without a further order from the court appointing a second trustee.
20. A case record from July 2018 recorded a conversation between the social worker and Mr P. This said, “Unfortunately, it has now come to our notice that as a result of Ms X sharing ownership, a separate application is required to appoint a new trustee before any financial interest can be sold. I apologised to Mr P that this had not been identified prior to serving of the Order and the subsequent delay this will cause to prevent further debts being incurred”
21. After nearly a yeart, in April 2019, the Council decided because of the specialist nature of the transaction, that it could not be dealt with “in house” and was contracted out to external conveyancers. The application requesting permission to deal with the transfer of Ms X’s property was made in June 2019.
22. The family say the Council has taken too long to deal with the sale of Ms X’s property and this had led to her being financially disadvantaged. They say information was available on the Court of Protection website about the sale of jointly owned property, so it should have been aware a specific application was required at the outset.
23. They say if the Council had done things properly, it could have requested the appointment of a second trustee in March 2018.
24. The Council says it has visited the property on a regular basis and has kept Ms X’s family up to date with progress in the meantime.

Analysis

25. As the Court-appointed Deputy, the Council took on responsibility to act in the best interest of Ms X. This duty would include making sure she was not financially disadvantaged. While her share in the property remains in her name she remains liable for rent. It must therefore be in her best interest for the sale of this property to be completed as quickly as possible.
26. Mr P says the Council has failed to act in her best interest and this amounts to maladministration. Since January 2018, when the Council first agreed to take over responsibility for Ms X’s financial affairs, 20 months has passed during which time Ms X has continued to accrue rental arrears that will be settled once the property if eventually sold.
27. In reaching my decision as to whether there is fault here, I have carefully considered the chronology of this matter.
28. It took four months from the date that Ms X’s family asked the Council to take over her responsibility for her financial affairs to submitting the application to the Court. Within this time, a new social worker took over the case, best interest and capacity assessments were completed, manager approval and financial information was obtained, including details of Ms X’s joint ownership.
29. It took over two months from the date of the first Court order in June 2018 for the matter to be referred to the Council’s legal department for advice on next steps.
30. It took just over nine months from the date of the first Court order for the Council to decide the matter could not be handled by its in-house legal department. During this time, the records show the social worker was obtaining information from the housing association about the lease. This involved some delay as the information was not provided promptly. But many months passed when nothing happened to progress the case and when it did, it was a decision to forward it to external solicitors. This led to a further delay of two months before the application was made to the Court of Protection for a second time.
31. In total, it took one year from the date of the first Court order to when the Council lodged its second application requesting an order for sale.
32. There has been delay in this case. But I can see not all is attributable to the Council.
33. There was some time spent at the outset deciding how to proceed and what options were available to the Council. While the Council has accepted there was some delay here, because of what was involved in submitting the application I do not consider this delay was so significant that it amounts to fault.
34. But I do find fault with what happened afterwards. It took too long for anything to happen after the first order was made. The Council has said it was a particularly busy time in its legal department. Even taking this into consideration, it is difficult to see how this could justify the nine months that at took for the decision to be made to refer the case to external solicitors. While some time was spent chasing the housing association for documents, the Council would have known these were required from the outset and so this should have happened much sooner in any event.
35. Leading on from the general complaint that the matter has been going on for far too long, Ms X’s family are of the opinion the Council should have applied for an order for sale at the time of the first application.
36. In order for me to reach a decision about this, I have carefully considered the original application papers to the Court of Protection and case records from this time.
37. The original application form included a reference to Ms X’s part ownership of the property, but the Council did not make a supplementary application to the Court for an order for the sale of Ms X’s share in the property. This was an option available to the Court. There is a question on the application form that states, “Is authority sought to sell the property?”. Neither box “yes” or “no” was ticked. Leading on from this, there was section underneath that asked the question, “if no, what are your plans for the property?”. This box was left blank. In the circumstances, I would have expected to see this section of the form to be completed.
38. The Council has provided a conflicting explanation for why an order for sale was not requested at this time. In the Council’s first response to the Ombudsman’s enquiries it said it was not aware of the shared ownership arrangements at the time of the first Court order.
39. This is incorrect because the application form states she owned a 15% share in the property with a housing association owning the other 85% share. Similarly, the capacity assessment form completed by the social worker includes the same information. In addition, the case notes record the social worker making enquiries of the landlord about the ownership details in January 2018.
40. Also of significance is the fact the form itself states, “IMPORTANT – if a property is held in joint names, the deputy, when appointed, will not have the legal authority to deal with its sale…please refer to guidance notes”. These guidance notes make it clear a separate application is required.
41. The capacity assessment form completed by the social worker referenced the debt accruing on the property and Ms X being aware she could no longer live there and her desire to move to a bungalow in the near future.
42. I must also have regard to the social worker’s record form her conversation with Mr P following the court order preventing sale without a further application being made. She apologised for this issue not being identified sooner.
43. Taking all this into consideration, on balance I find it was a mistake for the Council not to have applied for an order for sale at this time. The Council was fully aware of the joint ownership and information was readily available on the Court of Protection forms and website that a separate application was required.
44. I am satisfied that dealing with the property was one of the reasons for the application being made. This is supported by the apology being given to Mr P when the mistake was realised.
45. Because of this, most, but not all, of the delay that happened afterwards was avoidable. But I can see it is not a straightforward transaction and I do not criticise the Council for deciding it should be dealt with by external conveyancers. But this should have happened much sooner than it did. This is reflected in my recommendation below.

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Agreed action

46. Within four weeks from the date of my final decision, the Council has agreed to take the following action:
1. Apologise in writing to Ms X for the fault identified in this report.
2. Make arrangements with the housing association for the Council to pay Ms X’s rental liability from 18 June 2018 to 4 April 2019, when the lease arrangements were confirmed and the case referred to external solicitors. Confirmation of this should be sent to the Ombudsman.

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Final decision

47. I have found the Council was at fault in the way it dealt with an application to the Court of Protection in respect of Ms X’s partly owned property. I have recommended the Council should apologise to Ms X and pay some of her rent.

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Investigator's decision on behalf of the Ombudsman