Summary: Mrs B complains about the Council’s role as a court appointed deputy for her late brother, Mr C. 2. She says that as a result of the Council’s failings she was denied the right to protect her brother, his interests and his assets. There was fault in the Council failing to identify Mrs B before applying for deputyship and the Council will apologise for that. There is no evidence of fault in the Council’s administration of Mr C’s affairs.

The complaint

1. Mrs B complains about the Council’s role as a court appointed deputy for her late brother, Mr C. She says the Council failed to identify her as her brother’s next of kin when it applied for the deputyship and then there were failings in its administration of his affairs.
2. She says that she was denied the right to protect her brother, his interests and his assets.

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The Ombudsman’s role and powers

3. 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)
4. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome.

(Local Government Act 1974, section 24A(6), 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 considered the complaint and documents provided by Mrs B. I asked the Council to comment on the complaint and provide information. I sent a draft of this statement to Mrs B and the Council and considered their comments.

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What I found

Deputyship

7. A deputy is appointed by the Court of Protection to make decisions on behalf of someone who lacks capacity to make decisions for themselves. A deputy must send an annual report to the Office of the Public Guardian (OPG) each year explaining the decisions they’ve made. If someone has concerns about how a deputy is carrying out their duties, for instance about the misuse of money or decisions that are not in the best interests of the person they’re responsible for, then they should inform the OPG.
8. Once the person for whom the deputyship was granted has died the OPG has no powers to consider the matter.

What happened

9. Mrs B’s brother, Mr C, lived on his own in a privately rented property. The Council first had contact with him in 2013 when concerns had been raised about how he was managing.
10. In early 2015 officers working with Mr C were concerned about his ability to manage his financial affairs. The Council started the process for becoming a court appointed deputy. The deputyship was granted by the Court of Protection in July 2015.
11. Mr C died in February 2018. Mrs B was his only relative. Mr C had not had a will so Mrs B dealt with winding up his estate. It was at this point that she found out about the deputyship. She wrote to the Council and then made a formal complaint. She was dissatisfied with the responses she had from the Council so complained to the Ombudsman.

Analysis

The application for deputyship

12. In responding to Mrs B’s complaint the Council said it had no knowledge of Mrs B which is why it applied for deputyship. It said there was no mention of her in its adult social care records and Mr C never mentioned her to the officers involved in his care. This is not the case. In responding to my enquiries the Council has said that Mrs B was referred to in the case records and Mr C is noted as mentioning her at around the time deputyship was being considered.
13. There is fault here both in the way the Council responded to Mrs B which misrepresented the true position and on the basis of the Council’s application for deputyship.
14. Where there has been fault we have to consider what would have happened had that not occurred. The Council has said it would have asked Mr C about what he wanted to happen and would have asked Mrs B for her views. It may be that Mr C would always have preferred for the Council to act as deputy. There is nothing to show that he was unhappy with the arrangement or that he expressed any wish for Mrs B to be involved. I cannot, therefore, say that, on the balance of probabilities, the outcome of the deputyship would have been different. The Council should apologise to Mrs B for its failure to identify and contact her as part of its consideration of the application for deputyship but I cannot say there was further significant injustice to her that the Council should remedy.

The administration of the deputyship

15. Mrs B complained the Council did not administer Mr C’s financial affairs properly. She raised a number of detailed queries with the Council to which it responded in its complaint responses in March and April 2019.
16. The OPG is responsible for overseeing and supervision of the deputyship and can request accounts from the deputy. This happened in September 2016 and no concerns were raised by the OPG. The OPG did not request any further accounts from the Council during the deputyship. There was further contact between the Council and the OPG and the CoP in December 2016 and January 2017 about the investment of Mr C’s money.
17. The OPG was satisfied with the accounts provided by the Council in September 2016 and the investment of Mr C’s money was specifically approved by the OPG in January 2017. It is not for me to question decisions made by the OPG and I have no grounds to consider further those matters that were considered by the OPG.
18. I have considered the Council’s responses to Mrs B on the points she raised and I have also read the contemporaneous detailed case record notes of the Council’s involvement with Mr C. These support the Council’s explanations given to Mrs B. I do not consider there is evidence of fault in the Council’s administration of Mr C’s finances.

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Agreed action

19. Within one month of the final decision the Council will apologise to Mrs B.

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Final decision

20. There was fault in the Council failing to identify Mrs B before applying for deputyship and the Council will apologise for that. There is no evidence of fault in the Council’s administration of Mr C’s affairs.

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Investigator's decision on behalf of the Ombudsman