Summary: Mrs X complained about the Council’s management of her daughter’s (Miss D’s) support. There is fault in way the Council handled D’s financial support. This caused distress for Miss D and Mrs X. The Council has agreed to remedy this injustice.

The complaint

1. Mrs X is representing her daughter, Miss D who lives in supported accommodation. Mrs X complained:
• the Council moved a new temporary tenant into Miss D’s block. She says this had a negative impact on Miss D’s mental health and the support available to her;
• the Council was progressing a Court of Protection Order for Miss D. She says the Council had Miss D’s benefits but did not pay her bills; and
• the Council did not communicate adequately with her or Miss D about the Court of Protection process. She says this left them confused and distressed.

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What I have investigated

2. I have investigated:
• Mrs X’s complaint about the Council’s management of the situation related to the temporary tenant;
• the Council’s actions when acting as appointee for Miss D; and
• the Council’s actions leading up to the application to the Court of Protection.

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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 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)
5. 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

6. I have considered Mrs X and Miss D’s complaint and supporting information.
7. I have also considered the Council’s response to the complainants and to my enquiries.
8. I have spoken to both the complainants and the Council to gain clarity on the issues.
9. I have written to Mrs X and the Council with my draft decision and considered their comments.

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What I found

10. The Mental Capacity Act 2005 established the Court of Protection (COP). The COP makes decisions on financial or welfare matters for people who can’t make decisions at the time they need to be made (they ‘lack mental capacity’).
11. It appoints deputies to make ongoing decisions for people who lack mental capacity. A family member, friend or an organisation such as a council could apply to be a deputy.

Appointeeship

12. A person (or an organisation, like a Council) can apply to the Department of Work and Pensions (DWP) to deal with the benefits of someone who cannot manage their own affairs because they lack capacity.
13. Only one appointee can act on behalf of someone who is entitled to benefits.
14. For a change in the nominated appointee, the existing appointee would need to agree to relinquish their appointeeship with the DWP and the new appointee would need to apply by completing the relevant document.

Equality Act 2010

15. Under the Act, public sector organisations must make changes in their approach or provision to ensure that services are accessible to disabled people as well as everyone else. This is known as making ‘reasonable adjustments’.

What happened

Background

16. Miss D lives in her own flat in a supported living placement run by a charity supported by the Council. The charity supports people with autism, learning disabilities and mental health needs.
17. The charity provides care and support to the residents living in the flats. This support is based in and around the flats. Residents have their own flat as well as having access to a communal flat where social and group activities take place.
18. Mrs X has managed Miss D’s finances for a long time. In December 2018, Mrs X said she did not want to manage Miss D’s finances anymore. She said she wanted to make sure Miss D’s finances were secure in the future.

Temporary Tenant

19. In September 2018, the Council moved a tenant (Miss T) from her flat (elsewhere within the supported living accommodation) to live temporarily in the communal flat in Miss D’s block. Miss T had to move out of her flat after she badly damaged it.
20. Miss T slept in the communal flat for 10 months while the Council repaired her flat. She moved back into her flat in June 2019.
21. During the 10 month period, Mrs X said Miss T caused problems for Miss D. This meant Miss D rarely left her flat as she did not want to see Miss T. She said that Miss D (and the other residents) could not use the communal flat as Miss T was living there.
22. Miss D chose to move in with Mrs X temporarily. Mrs X said this was to protect Miss D’s mental health. Her GP wrote a ‘sick note’ to explain why Miss D was not staying in her flat. Miss D is due to move back into her flat in September 2019.
23. Mrs X complained, this situation meant Miss D did not had access to the care and support she is entitled to. She would like the Council to compensate Miss D for the loss of the support.
24. The Council said it was Miss D’s choice to move out of the flat. It said Miss D has a history of having issues with other residents. While the Council recognises it is a characteristic of Miss D’s condition, it said it is not responsible for Miss D’s decision to move out to avoid the situation. The Council will not compensate Miss D.

Court of Protection Order

25. The Council and Miss D’s GP completed the paperwork to start proceedings for a Court of Protection Order (COP). This would give the Council extended powers (‘deputyship’) for the general managements of Miss D’s finances.
26. The Council submitted the COP forms in April 2019. I cannot investigate the Council’s actions in relation to the COP after this date as it is out of the Ombudsman’s jurisdiction (see paragraph 51). The COP order was granted during the course of my investigation.

Leading up to submission of COP application

27. In March 2019, the Council carried out a Mental Capacity Assessment for Miss D. This was to assess Miss D’s capacity to manage her finances. The Council, with Mrs X and Miss D considered two options. They agreed the Council should managed Miss D’s finances. This option would:
• safeguard Miss D’s money;
• include accurate bookkeeping;
• take the responsibility off Mrs X; and
• stop Miss D spending large amounts of money.
28. During my investigation, the Council told me since January 2019, Mrs X and Miss D have changed their minds several times about the COP.

Miss D’s benefits and bills

29. Mrs X and Miss D have said the Council had Miss D’s benefits but have not been paying her bills. Mrs X said she has been paying Miss D’s bills which has left her at a financial disadvantage. During a recent meeting, the Council confirmed it would refund Mrs X for the payments she has had to make on behalf of Miss D.
30. Case notes from March 2019 show Mrs X closed Miss D’s bank account and cancelled all the direct debits. The Council’s notes suggested this was against the Council’s advice. Mrs X said the account was empty as the Council had Miss D’s money.
31. Since Mrs X closed Miss D’s bank account, the Council has been giving Miss D cash payments from her benefits. The Council has been paying Council charges (including Miss D’s accommodation). However, it said, it cannot pay bills owed to third parties as it has no legal right to do so. I have seen evidence it has paid a phone bill that Mrs X is now contesting.

Appointeeship

32. Mrs X and Miss D contacted the Department of Work and Pensions (DWP) about Miss D’s benefits. DWP informed them the Council has appointeeship for Miss D’s benefits. The Council had asked for Mrs X to be removed as appointee. Mrs X said she had not been informed about this.
33. I asked the Council about this. It explained that whilst it was waiting the COP decision, it obtained appointeeship to receive Miss D’s benefits.
34. Mrs X said the Council did not communicate adequately with her and Miss D about what to do in the period until the deputyship is granted. She said the Council had informed her that it did not offer appointeeship. She was not aware that the Council had replaced her as Miss D’s appointee.
35. She said she had repeatedly asked for information and advice to be written down. She said Miss D struggles to recall and understand information that she receives verbally. This request was a reasonable adjustment.

My Findings

Temporary tenant

36. From the evidence I have seen and heard, clearly Miss T living in the communal flat caused Miss D great distress. I can see that it contributed to her anxiety and affected her mental health. Miss D felt she had no choice other than to move to her mother’s (Mrs X’s).
37. However, I recognise the Council has a duty to Miss T as well as Miss D. While the Council repaired Miss T’s flat, it said it had no other option than to move her into the communal flat as she had nowhere else suitable to stay. It said, this was not unreasonable on a temporary basis.
38. Miss D’s care and support plan shows Miss D struggles with forming and maintaining relationships. This has caused issues with other tenants as well as care and support staff. The Council have said it provides Miss D with help and support on how to manage relationships.
39. Miss T has now moved out of the communal flat, back to her own flat. Mrs X said it took too long. I cannot comment on the time it took the Council to repair Miss T’s flat as I do not know the extent of the damage. However, the Council knew it was in the best interests of both Miss T and Miss D to complete the work as soon as possible.
40. There is no fault:
• with the way the Council decided to accommodate Miss T the communal flat;
• with the Council’s conclusion that it was Miss D’s choice to move out of her accommodation and in with her mother; and
• in the time it took the Council to move Miss T back into her own flat.

Court of Protection and Appointeeship

41. Mrs X approached the Council to ask it to apply for a COP order. This was because she wanted to ensure Miss D’s finances were properly managed in the long-term. The Council started proceedings for the COP in December 2018. The Council submitted the final COP application to the Courts in April 2019. Deputyship was granted during the course of my investigation.
42. The Council did not inform Mrs X and Miss D that it had contacted DWP and had become appointee for Miss D’s benefits.
43. The Council did not provide clear advice about the deputy and appointee process. This meant that Mrs X and Miss D were unclear about what to do regarding Miss D’s finances and bills in the period until the courts made a decision about the COP Order. This caused them both distress.
44. The Council had several meetings and conversations with Mrs X and Miss D. However, there is no evidence the Council provided clear written advice of the deputy and appointee process to Mrs X and Miss D.
45. Mrs X had asked for this on several occasions to assist Miss D’s understanding of matters.
46. There is fault with the Council as Miss D’s appointee. The Council:
• did not provide adequate information or advice to Mrs X and Miss D in relation to the appointeeship or COP process; and
• did not show due regard to its duties under the Equality Act by failing to properly consider Miss D’s/Mrs X’s request for reasonable adjustments when providing information.
47. The above fault caused Miss D and Mrs X avoidable distress. This included:
• uncertainty about the management of Miss D’s finances; and
• significant stress, inconvenience and frustration.

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Agreed action

48. Within 1 month of my final decision, the Council has agreed to:
1. Apologise to Mrs X and Miss D for the Council’s poor communication of information whilst it acted as Miss D’s appointee; and
2. Pay Miss D £200 for the distress caused by the Council’s poor communication, specifically the failure to provide written advice and information about the appointeeship and COP process.

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Parts of the complaint that I did not investigate

49. I cannot investigate Mrs X’s complaints about the COP process because they concern the commencement of legal proceedings.

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Final decision

50. There is fault with the Council’s actions in relation to its role as Miss D’s appointee. The Council has agreed to remedy the injustice caused by this fault.

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Investigator's decision on behalf of the Ombudsman