Summary: Mrs X complained about the actions the Council took to identify long-term living arrangements for her brother, Mr Z, and the way it applied to the Court of Protection for deputyship for Mr Z. She also complained about the actions of social workers who she said were biased and hid information. There was no fault in the Council’s actions.

The complaint

1. Mrs X complained on behalf of herself, her sister, her mother and her brother, Mr Z, that the Council:
1. made inadequate long-term arrangements for Mr Z’s aftercare once he was discharged from detention under the Mental Health Act 1983, including considering placements too far from the family;
2. wrongly making negative statements about the family in reports and communications with others;
3. made a family member sign the notes from the best interest meeting on 1 May 2020 without them having sight of the minutes and then refused to allow them to be amended; and
4. persuaded the family to cancel their application to the Court of Protection to become Mr Z’s deputy by pressurising them and giving incomplete information, so the Council could itself apply to the Court of Protection to become Mr Z’s deputy.
2. Mrs X also complained about the actions of the social workers who she said were biased, hid information, passed wrong information to other agencies and provided her with incorrect advice.
3. Mrs X said that as a result, there was a deterioration in Mr Z’s health and the family was worn out emotionally, physically and financially.
4. Mrs X wants to be appointed as the deputy for Mr Z and for Mr Z to be transferred to the care of the Council area where the family is now living.

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What I have investigated

5. I have investigated the complaints in paragraphs 1a), 1b) and 1c) and in paragraph 2. I have not looked at the complaint in paragraph 1d) and explain why at the end of this decision statement.

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The Ombudsman’s role and powers

6. 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)
7. 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)
8. 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

9. I spoke to Mrs X and considered her view of her complaint.
10. I spoke to the Council social worker assigned to the family and considered their view of the case.
11. I made enquiries of the Council and considered the information it provided. This included complaints correspondence, the minutes of relevant meetings and Mr Z’s case notes.
12. I gave Mrs X and the Council an opportunity to comment on my draft decision.

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What I found

Capacity and best interest decisions

13. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out the steps organisations should take when considering whether someone lacks mental capacity.
14. A key principle of the MCA is that any act done for, or any decision made on behalf of, a person who lacks capacity must be done, or made, in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision-makers must follow to determine what is in a person’s best interests. This includes considering the person’s past and present wishes and feelings, the views of family and carers, whether the person is likely to recover capacity and the relevant medical and social circumstances.

Detention under sections 2 and 3 of the Mental Health Act 1983

15. Under the Mental Health Act 1983, when someone has a mental disorder and is putting their safety or someone else’s at risk they can be detained in hospital against their wishes.
16. The purpose of detention under section 2 of the Mental Health Act is to assess a patient’s mental health and to provide any treatment they might need. Patients can be detained under section 2 for a maximum of 28 days.
17. Detention under Section 3 of the Mental Health Act is to provide treatment. A patient can be detained for a maximum of six months. This can be renewed for another six months.
18. Before the person is discharged, a social care assessment should take place to assess if they have any social care needs that should be met. People who are discharged from section 3 detention will not have to pay for any aftercare they will need. This is known as section 117 aftercare.

Court of Protection and deputyship

19. If somebody lacks the mental capacity to make decisions for themselves, the Court of Protection may appoint a deputy to make decisions for that person. People may lack mental capacity because, for example they have had a serious brain injury or illness or they have severe learning disabilities.
20. A deputy is usually a friend or relative of the person who lacks capacity, but in some circumstances, it could be a professional such as a council, a solicitor or accountant, or another professional appointed by the court.
21. There are two types of deputy:
• Property and financial affairs where the deputy will do things like pay a person’s bills or organise their pension.
• Personal welfare where the deputy will make decisions about medical treatment and how someone is looked after.
22. If a person lacks mental capacity and needs to sign a tenancy, then anyone intending to sign it on their behalf can only do so if they are authorised by the Court of Protection (unless the person gave someone power of attorney when they still had capacity).

What happened

23. Mr Z has mental health conditions. He used to live abroad in a care home. Mr Z’s family were unhappy with his care and brought him to this country a number of years ago.
24. Mr Z lacks capacity. Mrs X had authority in the county abroad to make decisions on behalf of Mr Z. However, this authority was not valid in the United Kingdom. This meant that when the events complained about began, no one had deputyship for Mr Z.
25. In 2018, Mr Z was admitted to hospital under Section 3 of the Mental Health Act.
26. In December 2019, a meeting was held at the hospital. Attendees included a family representative, an interpreter, medical staff, an NHS social worker and the family’s Council social worker. Discussions took place about a suitable placement for Mr Z when he was ready to be discharged. The social workers mentioned a provider (Provider 1) who managed a number of supported living properties which they thought might be suitable for Mr Z. There was some discussion about the distance of these placements from the family home, but the family agreed to consider this option and get back to the social workers. The notes from the meeting record Mr Z’s mother wanted Mr Z to live with her with the right support package.
27. At the beginning of 2020, a different provider (Provider 2) was identified. This provider also managed a number of supported living properties, some of which were close to the family home. The Council social worker carried out two visits on 5 and 13 February 2020.
28. The supported living placement with either Provider 1 or 2 required a signed tenancy agreement. Mrs X said the family had power of attorney and sent the social worker the documentation. The social worker responded on 27 February and said that because the documentation was from a foreign court, it could not be used in the UK. The social worker said either the Council or the family could apply for deputyship. The family said it would do so.
29. On 3 March 2020, a meeting was held at the hospital and the move to one of Provider 2’s properties was discussed. Attendees included medical staff, a manager from Provider 2, the two social workers from the NHS and the Council, a representative of the family and an interpreter.
30. On 11 March 2020, Mr Z was suitable for discharge from hospital.
31. Another meeting was held on 19 March at the hospital with the two social workers, the Council social worker’s line manager and a representative from the family. The notes recorded all present had considered the Provider 2 property suitable for Mr Z. However, the property was situated in a different council area and when the Council social worker had made the referral, the other council had said it would not provide some of the essential therapy Mr Z required to clients placed from out of its area. Because this therapy was essential to the management of Mr Z’s condition, the property was no longer considered suitable for Mr Z.
32. In April 2020, the family requested the Council apply for deputyship for Mr Z. The Council requested advice from the Court of Protection in relation to whether the Council could be appointed as the deputy in order to sign the supported living tenancy.
33. On 1 May 2020, the Council held a best interest meeting at the hospital. A family representative, the two social workers and Mr Z’s independent mental capacity advocate (IMCA) were present.
34. The following placements were considered:
• a property managed by Provider 1;
• the family home; and
• a residential care home.
35. The notes stated “The identified supported living accommodation [owned by Provider 1] is the least restrictive option. [Mr Z] will be staying in the community and owning a tenancy. Whereas residential accommodation is the most restrictive option to [Mr Z]. And having him stay with family would not have met his care needs…placing [Mr Z] with his family would increase the risk of hospital re-admissions… all attendees unanimously agreed that it is in [Mr Z’s] best interest to be discharged in supported living provided by [Provider 1]. The care plan and the working documents were discussed and agreed by those present, including [Mr Z’s] sister… if the family is unhappy with something at this accommodation, they are not allowed to take [Mr Z] out… the family should… contact the [Council] and inform the social worker of their grievances… the social worker will inform the allocated IMCA”.
36. The Council social worker sent a copy of the notes to Mr Z’s sister who was present at the best interest meeting. The sister replied by email and said “I signed the document and I put a comment that we believe is important to be mentioned because [Mr Z’s] family is pointed in a way that put his life at risk and he ended in a hospital, we been caring him for all his life however we really appreciate all work and effort for that you are putting for him during this time. Thank you for send me the minutes”.
37. Another meeting was held on 1 June 2020 between the family and the social workers. The notes record the Court of Protection paperwork had been completed by the Council and was being reviewed by its legal team. A supported living placement managed by Provider 1 had been identified and was being held pending the signing of the tenancy agreement.
38. In June 2020, the Council submitted its application to the Court of Protection. Prior to doing so, the case notes record officers considered whether to apply for deputyship or to ask the Court to appoint someone to sign the tenancy on Mr Z’s behalf. The Council decided to continue with its application for deputyship.
39. On 9 July 2020, the Council gave approval for the financial package for the supported living tenancy with Provider 1.
40. On 21 July 2020, a discharge, care and treatment meeting was held at the hospital. The family, an interpreter, Mr Z’s IMCA and the two social workers were present as well as medical staff. The notes recorded the IMCA wanted to see how the placement worked for Mr Z and would visit him once he had settled in. Mr Z’s mother said she agreed for Mr Z to be supported by Provider 1 but the family would like to see the home.
41. The notes recorded Mrs X had identified another placement with Provider 2 which was closer to home but she was also happy with Provider 1 and did not want to delay the move. One of the meeting actions was that once the Court of Protection had agreed to the deputyship, the Council would sign the tenancy for Mr Z.
42. On the same day as the meeting, the Council social worker emailed Mrs X and said “I write this email to inform you that upon discussing the accommodation matter with Senior management and [Mr Z’s] IMCA. It was decided that it will be in the best interest for [Mr Z] to be discharged at [Provider 1], as this placement will best meet his care and support needs. Please note that this is not a permanent placement for [Mr Z], appropriate placement closer to the family home will be pursued in the future.
43. On 5,6,7 and 10 August 2020, Mrs X complained on behalf of the family to the Council about the actions of the hospital and the Council. The complaints relating to the Council for the purpose of this investigation were:
• the family wanted to revoke their permission for the Council to be appointed as deputy for Mr Z;
• the family wanted their Council social worker to be replaced for reasons including they had lost faith in her, she was biased against the family and failed to keep them up to date with plans for Mr Z’s placement; and
• at the best interest meeting in May 2020, the Council social worker had blamed the family for Mr Z’s readmittance to hospital because the minutes stated “The risk of placing [Mr Z] with his family, would increase the risk of hospital re-admissions, as has been evidenced in the past”. In addition, the family was unhappy with the wording of the working agreement which included “If the family is unhappy with something at this accommodation, they are not allowed to take [Mr Z] out” but should raise their concerns with either the local NHS Trust or the Council.
44. The Council responded on 26 August 2020. It said:
• there was no evidence the family was unhappy the Council was applying for deputyship until they complained in August 2020 and the Council would not withdraw its application;
• it would not appoint a new social worker because the social worker had acted professionally and in Mr Z’s best interests, regularly communicating with the family. It would not be fair on Mr Z to appoint a new social worker at this stage; and
• the family had been consulted on Mr Z’s placement plans.
45. Mrs X was unhappy with the Council’s response and complained again on 2 September. The Council responded on 18 September and adding to the above response, said:
• the working protocol agreement was put into place because the family had removed Mr Z from his care home twice and on both occasions, he had shortly afterwards been detained under the Mental Health Act. The Council said it would not amend the details because they were factually correct.
• the records clearly showed the family had been included in the decisions about Mr Z’s long-term placement.
46. Mrs X remained unhappy and complained to the Ombudsman. She made a later complaint during this investigation, that she had been unaware that if a placement at a residential home had been agreed, Mr Z could have been discharged from hospital earlier. This is because there was no requirement for a tenancy agreement for residential home placements, as opposed to supported living which required a tenancy agreement. Therefore, there would have been no need to wait for the application for deputyship to be heard at the Court of Protection. Mrs X complained Mr Z had, therefore, remained in hospital longer than necessary.
47. In January 2021, the Court of Protection heard the case. The Council informed the Court it would not oppose an application from the family to be Mr Z’s deputy. The Court appointed the family as Mr Z’s deputy.

My findings

The adequacy of Mr Z’s long-term placement

48. Mr Z lacked capacity. No one held deputyship or had power of attorney to make decisions on his behalf about his care or where he should live. Therefore, it was necessary for a best interest decision to be made about Mr Z’s long-term living arrangements.
49. The Council considered the views of family and carers, together with Mr Z’s IMCA and the relevant medical and social circumstances. An interpreter was also present to aid members of the family when necessary. The Council, the family and the IMCA considered previous arrangements, including a placement with Mr Z’s mother. The Council and the family decided at the best interest meeting in May 2020 that supported living was the best, and least restrictive option for Mr Z. The family remained in agreement with the plans for supported living up to August 2020, when they complained to the Council. There was no fault in the Council’s actions.
50. In relation to Mrs X’s later complaint about the need for a tenancy agreement delaying a placement for Mr Z, I have examined the notes of the meetings held with the family from May to July 2020. There is no record of what, if any, discussions took place about the differing requirements for tenancy agreements at different types of placements. However, even if the family was unaware that a residential home placement could have been arranged more quickly because there was no need for a tenancy agreement, it is unlikely this would have been the outcome for Mr Z. The Council and Mr Z’s IMCA were opposed to a residential home placement as it was the most restrictive type of placement. And it was also unlikely they would have agreed because any residential home placement would have been temporary, whilst the deputyship was finalised, thus requiring a second move for Mr Z. So even if the family had expressed a preference for a residential home placement, on the balance of probabilities, it is likely the decision for supported living would still have been made.
51. During this investigation, Mrs X also complained the Council delayed unnecessarily in its application to the Court of Protection.
52. Initially, the Council believed the family had the authority to sign Mr Z’s tenancy. When it transpired this was not the case, the family initially said they would apply for deputyship. Later, it asked the Council to do so. The Council began the process and submitted the papers around six weeks later. The Council did not delay in submitting its application. There was no fault in the Council’s actions.
53. Mrs X believes the Council did not need to apply for deputyship but could have asked the Court of Protection to appoint an officer to sign the tenancy. 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. The Council considered both courses of action. It decided, on the facts of this case, that deputyship was the preferred option. There was no fault in how the Council made that decision.

Statements about the family in reports and communications with others

54. Mrs X is unhappy about some of the statements the Council made about the family; in particular at the best interests meeting on 1 May 2020 and the associated working document.
55. The Council had concerns Mr Z’s care would be affected if the family removed him from any care it arranged. This had occurred in the past. The notes from the meeting and the working arrangement recorded this and requested the family any concerns with the Council so that the IMCA could become involved. These were appropriate steps to take to ensure the wellbeing of Mr Z. There was no fault in the Council’s actions.

Minutes of the best interest meeting on 1 May 2020

56. Mrs X says the social worker sent her sister, who attended the meeting, a blank document and made her sign this. She said the social worker would not allow her sister to comment on the minutes.
57. I spoke to the social worker about this who denied this had happened. I also examined the case files. These contained an email from Mrs X’s sister which said she had received the minutes and included her comments. There was no fault in the Council’s actions.

Actions of social workers

58. I have read the case files and records for the period August 2019 to August 2020. The social workers were not biased, did not hide information and did not provide Mrs X with incorrect information. The social workers and other officers provided factual information and reacted appropriately to the changing situation with Mr Z and requests from the family. There was no fault in the Council’s actions.

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Final decision

59. There was no fault in the Council’s actions. Therefore, I have completed my investigation.

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Parts of the complaint that I did not investigate

60. Mrs X complained in paragraph 1d) about the Council’s actions in applying to the Court of Protection for deputyship.
61. The law says we cannot investigate a complaint about the start of court action or what happened in court. An application to the Court of Protection is the start of court proceedings. Therefore, we cannot look at this part of the complaint.
62. Although we are not automatically precluded from looking at the Council’s actions leading up to the application for deputyship, Mrs X’s ultimate wish was to be granted deputyship in place of the Council. This is something that only the Court of Protection can decide and a decision on this has now been made. Any investigation by the Ombudsman would be into matters inextricably linked to the Court of Protection’s decision. Therefore, it would be inappropriate for us to look at these matters.

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Investigator's decision on behalf of the Ombudsman