Durham County Council (19 008 136)

Category : Adult care services > Other

Decision : Upheld

Decision date : 24 Mar 2020

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s actions as deputy for property and finances for his late father, Mr Y. He says it failed to ensure a new lease was in place for his father’s business before a change in tenant, or inspect it before the new tenant moved in. We found the Council acted appropriately to make decisions as Mr Y’s deputy regarding the tenancy transfer. However, it failed to act promptly to deal with reported damage to the property, or to visit it when the tenant left to check on its condition. It has agreed to apologise and pay Mr X £500 to remedy injustice caused by this fault.

The complaint

  1. Mr X complains the Council, acting as his late father Mr Y’s deputy, allowed a new tenant to take over Mr Y’s business property without ensuring a new lease was in place. He says it did not carry out an inspection of the property before the previous tenant left it in some disrepair.
  2. As a result, Mr X says he is now having to go to avoidable effort to remove the new tenant so he can sell the property.

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The Ombudsman’s role and powers

  1. 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)
  2. 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). I have only investigated the Council’s actions, as covered by Mr X’s complaint, dating from October 2018, when it became aware of the potential change to tenancy arrangements for Mr Y’s business. If Mr X had concerns about earlier actions, he could have complained about them to the Council.
  3. 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

  1. I spoke to Mr X about his complaint, asked the Council questions and considered case notes provided.
  2. I considered the Mental Capacity Act, Office of the Public Guardian standards for Deputies and the Council’s practice note for deputyship.
  3. I considered the Ombudsman’s guidance on remedies.
  4. I gave the Council and Mr X the opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Deputyship by councils

  1. Councils can act as someone’s deputy to manage their financial and property affairs where the person cannot do so themselves and has no one else able to take on the role. The Court of Protection appoints such deputies.
  2. The Office of the Public Guardian sets out guidance for deputies. It says that property and financial affairs deputies are responsible for making decisions about property on the person’s behalf. They must make sure decisions are in the person’s best interests, consider what they have done in the past and get relevant advice.
  3. The Office of the Public Guardian can consider complaints about the actions of deputies appointed by the Court of Protection. However, it cannot consider the actions of a deputy when the person for whom deputyship was granted has died. The Ombudsman can consider such complaints.
  4. This council’s instruction note for its Deputy team mainly refers to unoccupied properties. These are usually owned and occupied by service users when they are admitted to residential care. It requires the Council to regularly visit, report damage and arrange repair. It says the Council should get appropriate legal advice to make decisions about investments, savings and property.

Background

  1. The Council had been Mr Y’s deputy for financial affairs since 2016. Mr Y owned a retail business, let to a tenant, Mr Z. Mr Y had moved into a care home and paid for his care using rental income from the business. Rent from Mr Z was paid into Mr Y’s deputyship bank account, managed by the Council, until April 2019.
  2. The income was mainly used to meet Mr Y’s care and support needs. When it became Mr Y’s deputy, the Council sought legal advice about the lease and whether it had expired. The Council, having sought legal advice, decided its terms and relevant legislation (the Landlord and Tenant Act 1954) meant the lease would not end unless either Mr Z or Mr Y served notice. They had not done so.
  3. In May 2018 the Council was told water was leaking into the business through a wall, possibly causing damage. The Council inspected the property in May 2018 and recorded the visible damage. This was the first time the Council had inspected inside the property since taking on the Deputyship. It started to arrange quotes for repair work. It did not then arrange for any repairs to be made.
  4. In late 2018 Mr Z decided he wanted to transfer his lease to Ms B. The Council Deputyship team got legal advice about whether a new lease should be drawn up, and what rights Mr Z had as the tenant. It discussed the matter with Mr Z’s solicitors.
  5. In January 2019, Mr Z left the business, intending to hand it over to Ms B. The Council made a best interest decision about what should happen to the lease. It considered:
    • Mr Y’s earlier wish to rent out the property.
    • How important continued rental income was to meet Mr Y’s care costs.
    • The risk of not transferring the lease, meaning Mr Y losing rental income.
  6. It therefore decided it was in Mr Y’s best interests to allow Mr Z to continue as lease holder, but that from now on Ms B would occupy the business, paying rent to Mr Z. Mr Z then would continue to pay the Council (and therefore Mr Y’s deputyship bank account).
  7. The Council understood this arrangement would continue until a new lease could be drawn up in Ms B’s name. The Council continued working with solicitors to arrange a new lease. It also discussed repairs with Ms B, visiting the business property in February 2019. This was the second time it had inspected inside the business since taking on Deputyship. It says it was not able to inspect more regularly because the business was closed during the day.
  8. Mr Y died in March 2019. By then the new lease had not been finished and the Council had not arranged for the repairs. The Council now could not arrange for repairs as it no longer had authority to manage Mr Y’s finances after his death.
  9. Mr X complained to the Council that it had let Ms B take over the property without a lease or payment plan in place. He said the business had been let go into disrepair. The Council replied to Mr X’s complaint at stage two in August 2019. Some of its reply referred to matters not covered by Mr X’s complaint to us. With respect to this complaint, the Council said Mr Y had died before it had drawn up the lease for Ms B. It understood Mr X was seeking legal advice about this.
  10. It explained that as Mr Y was paying the full cost of his care, it had taken the best interests decision as his Deputy to allow the premises to continue to be let. This was so rental income could contribute towards his care costs. On Mr Y’s death, the Council reimbursed Mr X with the balance of Mr Y’s estate.
  11. Mr X told us his father had problems with the previous tenant and would not have agreed to have another tenant take over the business.

My findings

  1. The legality of Mr Z’s tenancy and its transfer to Ms B are best left to the courts to decide. The Council sought appropriate advice about the lease. It understood, based on that advice, that Mr Z had continued rights as tenant. Mr X is taking legal action concerning the tenancy and we cannot investigate that matter.
  2. When informed of Mr Z’s intention to end his occupancy and transfer it to Ms B, the Council took appropriate steps as Mr Y’s deputy. It made a best interest decision about the lease, having regard to relevant information, its understanding of Mr Y’s previous wishes, and of his financial circumstances. Although Mr X does not believe this is the decision Mr Y would have made, there was no fault in how the Council made its decision.
  3. However, as Mr Y’s deputy for property the Council only went inside the business twice during the three-year period of its deputyship. It did not promptly arrange repairs when alerted to the water leak and damage, despite agreeing this was necessary. It did not visit the property when Mr Z left to check on its condition. These were important actions to protect Mr Y’s best interests. They were actions that a responsible person would have taken about their property. The Council’s failure to take these actions is fault. If it was not able to carry out checks or arrange prompt repairs itself, it could have considered whether to appoint a property manager to do so on its behalf.
  4. Water damage to the property probably became worse because of this failure to promptly repair. It is now not possible, even on the balance of probabilities, to say what additional damage was directly caused by this delay, as opposed to being caused by the initial leak and would, in any case have been Mr Y’s responsibility as landlord. The Council has agreed my recommendations to apologise and pay a token remedy of £500 to Mr X, recognising the avoidable distress, time and trouble caused by its fault.

Agreed action

  1. Within one month of my final decision the Council has agreed to apologise to Mr X for not regularly checking the property or arranging prompt repairs. It has also agreed to pay Mr X £500.

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Final decision

  1. I have completed my investigation finding fault causing injustice to Mr X. The Council has agreed to take action to remedy this injustice.

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Investigator's decision on behalf of the Ombudsman

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