Summary: Mr X complained the Council did not provide appropriate support to Ms Y. There was no fault in the way the Council assessed Ms Y’s care needs or provided support. The Ombudsman therefore cannot question the merits of its decisions.

The complaint

Mr X, a solicitor, complained on behalf of Ms Y, his client. He said the Council accepted Ms Y is vulnerable and destitute but did not provide her with the support of a social worker when she attended appointments about her immigration case. It determined she could deal with her own affairs. Mr X said this negatively impacted upon Ms Y’s immigration case.

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The Ombudsman’s role and powers

1. 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)
2. 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

3. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant’s representative.
• Documents provided by the Council and its comments in response to my enquiries.
• The Care Act 2014.
• The Council’s guidance on the assistance it can provide to people with no recourse to public funds.
4. I have written to Mr X and the Council with my draft decision and given them an opportunity to comment.

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What I found

5. The Council has an immigration and asylum support service (IASS) which can assist people subject to immigration control who cannot access public funds, housing or support. Such people are categorised as having no recourse to public funds (NRPF). This mainly involves asylum seekers and refused asylum seekers with health and social care needs. Some state benefits are not classed as ‘public funds’, including support from social services, primary healthcare, compulsory psychiatric care, emergency medical treatment and education for children.
6. The Council can provide temporary financial support, accommodation and social care support to those eligible. The Council cannot act outside its legal duties.
7. The Council will check eligibility by looking at:

• Whether it has territorial responsibility, or whether the needs are urgent
• Immigration status (eligibility for access to public funds)
• Possible exclusion and if so carry out a human rights assessment to establish if the Council has an obligation to provide support
• Whether a person is destitute
• How a person has been living and support networks
• Physical and mental health and care needs

8. It will assess eligibility for care and support under the Care Act 2014, as well as looking at any duties owed under the Mental Health Act.
9. The Council may provide support or give information about other organisations who can help. It cannot provide immigration advice.

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What happened

10. Ms Y has lived in the UK since 2002. She applied to the Home Office for a voluntary return to her home country in 2017. This was approved but the process was put on hold as Ms Y needed a cataract operation.
11. Ms Y has been homeless since 2013 and has been living in temporary accommodation since August 2017.
12. Ms Y was referred to the Council for a needs assessment on 21 May 2018. When the Council found out Ms Y had NRPF it referred her to its IASS on 25 May 2018.
13. Ms Y’s case was allocated to a social worker who assessed her on 19 June 2018 to decide what support needs she had. The Council said Ms Y understood and actively engaged in the process. It said Ms Y provided most of the information it gathered.
14. The assessment stated Ms Y was partially sighted due to tumours, suffered from chronic arthritis, type 2 diabetes and back problems. She needed help to cook, dress, clean and manage her money but at that time she did not have eligible needs under the Care Act 2014. The social worker said Ms Y had capacity to make all decisions about her life and no mental health issues were identified.
15. Ms Y had an eye operation on 20 July 2018. As a result, she could not complete most daily tasks without support and the Council arranged for her to live in a nursing home where her needs could be met by carers until she is reviewed after her second eye operation. She was admitted on 15 August 2018.
16. The Council referred Ms Y to Mr X for legal advice after she received a removal notice from the Home Office in April 2019.
17. Mr X told me Ms Y did not know what to do when she received the removal notice and he was instructed to provide advice on a charitable basis due to Ms Y’s health problems and inability to deal with her affairs. He said Ms Y cannot understand her situation or make decisions about her immigration case. She needs things to be explained to her and will agree with anything suggested to her in a convincing way.
18. Mr X contacted the Council on 17 April 2019. He said Ms Y’s immigration case was now urgent and she had an appointment on 24 April 2019. He asked for a social worker to go with Ms Y and for the Council to provide evidence of her medical conditions so representations could be made on Ms Y’s behalf.
19. On 18 April 2019 Ms Y’s social worker replied to Mr X. He said he already had an appointment that day and could not attend but he would send Ms Y’s assessments and records.
20. Mr X asked the Council to send another social worker due to Ms Y’s high care needs.
21. Ms Y’s social worker told Mr X it was not part of his role to go with client’s to appointments where they can fully express themselves. He said Ms Y can express herself and provide information on her medical and immigration history.
22. Mr X said from his prior meetings with Ms Y it was clear she could not manage her own affairs. He said the Council owes a duty to Ms Y and if he could not put the necessary information together, he would stop the immigration appointment and leave it for the Council to help Ms Y further.
23. The social worker met with Ms Y on the morning of the appointment on 22 April 2019 to support to review her medical history and documentation, which she took with her to the appointment.
24. Mr X wrote to the Council on 27 April 2019 to raise concerns about the support it offered to Ms Y. He said he is supporting Ms Y as an act of charity and expects help from the Council, especially when Ms Y tells him she cannot deal with her own matters, has a tumour, and appears in a state of confusion at meetings. He said it is the Council who owe Ms Y a duty of care, not him. He said he expected a social worker to attend appointments to support Ms Y.
25. The Council dealt with Mr X’s concerns as a complaint. It sent its response on 16 May 2019. It said Ms Y had been assessed as having capacity to deal with her immigration case and she can understand and answer questions about her background. She provided information for the care needs assessment without help and showed she had capacity to do this herself. It said the social worker told Mr X he could not go with Ms Y to the appointment because of a prior appointment. Mr Y was also told Ms X could understand and provide information about her history. She also had a relative to support her. The Council said it helped with providing Ms Y’s assessments, getting records from the GP and seeking an extension of time from the Home Office so the social worker could follow up on any updates on her health. It said Ms Y’s social worker had adequately supported her, particularly as she had capacity to discuss her health with her solicitor. The Council signposted Mr X to the Ombudsman if he was dissatisfied.
26. Mr X was unhappy with the Council’s response and brought his complaint to the Ombudsman on 22 May 2019.

Response to my enquiries

27. The Council told me it assessed Ms Y as needing a nursing home placement to maintain her safety because of her sensory impairment, poor mobility and poor management of her insulin.
28. The Council did not find Ms Y to be easily influenced. The information recorded in the needs assessment came from Ms Y and her assigned workers cannot verify its accuracy.
29. The Council’s IASS cannot provide immigration advice. Ms Y has a solicitor to represent her and he must have ensured Ms Y understood the process when he accepted her signed consent. There was no issue around Ms Y’s mental capacity.
30. The Council told me Mr X made contact about the immigration appointment at short notice and Ms Y’s social worker already had an appointment on that day. It offered to send her social worker as an escort for Ms Y on another date, but Mr X said he could only see Ms Y on that particular day.
31. The Council said the main role of the social worker is to support client’s social care needs. They cannot provide immigration advice and it is not a proper use of resources for a social worker to escort a client to an immigration appointment, especially when they have a solicitor acting for them.

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Analysis

32. Mr X thinks that Ms Y does not understand the process and is easily influenced. He thinks her support needs extend further than the help she receives with washing, cooking and cleaning. He thinks she cannot handle her personal affairs.
33. The Council assessed Ms Y as needing care and support due to her sight and mobility problems. The social worker who carried out Ms Y’s assessment considered she had capacity to make decisions about her life and did not find any issues with her ability to understand, or engage in, the process. The social worker assessed all relevant aspects of Ms Y’s background and history. He also examined the relevant outcomes as required by the Care Act 2014. He was therefore entitled to reach the view he came to. That was not fault.
34. This is ultimately a question of professional judgement and the social worker considered the relevant factors. The Ombudsman cannot substitute his opinion for that of the Council and there was no fault in the assessment process.
35. The Council has accepted a duty to Ms Y, but it can decide how best to carry out that duty. The Council has no specific duty to provide social workers to go with adults to immigration appointments. It provided Ms Y with accommodation and nursing support to meet her daily care needs. It also put her in touch with a solicitor to advise on her immigration case. Her ability to understand and engage in the process is different from her understanding of the legal issues associated with her immigration case. The social worker decided Ms Y could engage with a solicitor in the same way she had engaged during her needs assessment. There was no fault in the way the Council considered Ms Y’s needs or carried out its duty.
36. The Ombudsman cannot question the merits of a Council’s decision where there is no fault in how the decision was made.

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Final decision

37. I have completed my investigation. There was no fault in the way the Council assessed Ms Y’s care needs or provided support. The Ombudsman therefore cannot question the merits of its decisions.

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Investigator's decision on behalf of the Ombudsman