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Devon County Council (21 000 248)

Category : Adult care services > Other

Decision : Upheld

Decision date : 27 Oct 2021

The Ombudsman's final decision:

Summary: Mr D complains the Council relayed unfounded concerns to the Office of the Public Guardian about his capacity to care for his wife and act as her lasting power of attorney. He also complains the Council failed to address poor time keeping by carers or investigate allegations he was rude to care staff. At this stage, we found the Council was at fault for failing to address the punctuality of care staff. This caused Mr D distress and uncertainty so we have recommended a number of remedies. There is no evidence to suggest any other fault by the Council. Further, we have no jurisdiction to investigate concerns raised about Mr D’s lasting power of attorney. This is because these matters were considered by the court of protection.

The complaint

  1. The complainant, who I refer to as Mr D, is making a complaint about the Council’s responsiveness and handling of care that his wife (Mrs D) received. Specifically, Mr D says the Council:
      1. Raised concerns with the Office of the Public Guardian (OPG) about whether Mrs D had sufficient capacity to grant Mr D a Lasting Power of Attorney.
      2. Reported unfounded concerns about the care he was able to provide Mrs D.
      3. Failed to investigate allegations of him being rude and bullying to carers. He says these were taken at face value, with no evidence.
      4. Did not address his concerns about poor time keeping by the carers.
      5. Failed to properly respond to his complaint, including not giving information about how he could complain about the care provider.
  2. Mr D says he felt unprotected and victimised by the Council and had to spend significant time preparing for legal proceedings. He said this time could have been spent with his wife before she died, causing him distress and inconvenience.

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What I have investigated

  1. I have investigated parts 1(c) to (e). I have not investigated parts 1(a) and (b) because we do not have jurisdiction to investigate any matter which has been subject to legal proceedings. This matter is detailed further in this statement.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  2. We cannot investigate a complaint about the start of court action or what happened in court during proceedings. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended).
  3. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
  4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word 'fault' to refer to these. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement with our reasons. (Local Government Act 1974, section 30(1B) and 34H(i), as amended).

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How I considered this complaint

  1. I have reviewed Mr D’s complaint to the Council and Ombudsman. I have also had regard to the responses of the Council, supporting documents and applicable legislation and policy. Both Mr D and the Council received an opportunity to comment on a draft of my decision. Each of their comments were considered before a final decision was made.

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My findings

Background and legislative framework

Lasting power of attorney (LPA)

  1. An LPA makes decisions as if they are the person and must act in the person’s best interest. The Council’s guidelines state that if there are concerns than an LPA is not acting in a person’s best interests, this needs to be discussed with them by professionals involved. If the matter cannot be resolved, it may be appropriate to refer the case to adult safeguarding. The Office of the Public Guardian can also monitor LPAs and assess their suitability.

Office of the Public Guardian (OPG)

  1. The OPG supports and promotes decision making for those who lack the capacity and would like to plan for their future, within the framework of the Mental Capacity Act (MCA) 2005. The statutory functions of the OPG, in relation to the mental capacity jurisdiction, include:
      1. establishing and maintaining a register of lasting powers of attorney (LPAs).
      2. establishing and maintaining a register of orders appointing deputies.
      3. supervising deputies appointed by the court.
      4. exercising its statutory duty to safeguard donors of LPAs.

Court of protection

  1. The court of protection make decisions on financial or welfare matters for people who cannot make decisions at the time they need to be made (they ‘lack mental capacity’). Safeguarding issues frequently underpin or arise in welfare proceedings in the court of protection. The Ombudsman strictly has no jurisdiction to investigate any matter which has been subject to legal proceedings in court, including the court of protection.

The Care Act 2014 (the Act).

  1. The Act introduced safeguarding responsibilities by creating new statutory duties for local authorities. There are now two specific safeguarding duties imposed on local authorities: the duty to promote well-being and the duty of enquiry.
  2. The Act imposes an over-arching duty on English local authorities to promote the well-being of individuals when discharging its statutory care and support functions. ‘Well-being’ is defined as including protection from abuse and neglect. Further, it introduced a statutory duty of enquiry where an English local authority has reasonable cause to suspect that an adult in its area (whether or not ordinarily resident there):
      1. has needs for care and support;
      2. is experiencing, or is at risk of, abuse or neglect, and;
      3. as a result of those needs is unable to protect themselves against abuse or neglect or the risk of it.
  3. The ability to apply to the court of protection is one of the most important powers that is available to local authorities in the adult protection context. As such, it is unsurprising that safeguarding concerns are at the heart of a significant proportion of welfare applications made by local authorities. Such applications are made because the local authority believes that an adult who lacks decision-making capacity has been subjected to, or is at risk of, harm.

Chronology of events

  1. Mrs D was in poor health and Mr D was her main carer, with help from an external care agency to meet all of Mrs D’s needs. Mr D also has care needs.
  2. In early 2020, the OPG sent Mr D a letter stating that he was under investigation for not acting in accordance with the terms of the LPA for his wife. The investigation began due to welfare concerns raised by the Council.
  3. A month later, Mr D complained to the Council about the appropriateness of an investigation. In summary, he said the Council were unjustified in raising concerns about his ability to care for his wife. He also complained about care staff often not arriving on time which impacted his and Mrs D’s medication times.
  4. In mid-2020, the OPG made an application to the court of protection requesting it make an order to void Mr D’s LPA for his wife. The OPG set out that it had concerns whether Mr D’s wife had mental capacity which was required in order for her to sign an LPA. In addition, and following safeguarding referrals from the Council, it raised concerns about Mr D's ability to care for his wife, as well as his conduct towards incoming carers.
  5. In late 2020, Mr D sought a change of care provider from the Council. He said they were responsible for sharing untruths with the Council about his capacity to care for his wife. Further, Mr D attended a meeting with a Council social worker and the care agency. During this, he complained again about care staff arriving outside the agreed times.
  6. In early 2021, the Council issued its final response to Mr D. It gave an overview of the reasoning why a welfare referral was made to the OPG. Further, it said it had accepted the accounts by the care provider relating to Mr D’s conduct in good faith. It also referred to Mr D’s complaint relating to the punctuality of his and his wife’s carers, though it did not explain how this would be acted on.

My assessment

Court of protection

  1. A significant part of Mr D’s complaint relates to concerns the Council made to the OPG about the validity of his LPA, as well as his ability to care for Mrs D. I, however, cannot by law investigate any matter which has been the subject of legal proceedings in a court of law. In mid-2020, the OPG made an application to the court of protection for the LPA Mr D held for Mrs D be made void. I have reviewed the court papers and matters 1(a) to (b), as listed above, are materially connected to those proceedings. This is because these issues were referred to as evidence by the OPG in those proceedings. I have no jurisdiction to investigate this matter and the restriction I describe at paragraph five therefore applies.

Time keeping

  1. The position of Mr D is the attendance and punctuality of carers was often inconsistent and unreliable. He also explained this would often interfere with mealtimes for both him and Mrs D since medication was meant to coincide with these. The evidence I have been provided suggests Mr D did raise this matter consistently with care staff and the Council. On review of complaint papers, I do not consider the Council adequately addressed this issue. Rather, it focussed exclusively on the issues relating to Mr D’s behaviour and the OPG.
  2. The Council has since confirmed there were issues relating to care visits operating outside of the planned timetable. It has also acknowledged the practical difficulties which arose for Mr D from the uncertainty about the timings of the care visits. It has said there is now ongoing dialogue with the care agency regarding the timing of visits. That said, there is no evidence to suggest discussions of this nature took place during the time Mr D complained and requested a change of care provider. Mrs D had eligible needs under the Act and the provision of care was designed to meet those needs. The Council maintained the care plan and was responsible for ensuring the relevant provision was provided responsibly.
  3. It is Mr D’s position is that he and his wife were discriminated against by the Council as it failed to acknowledge he and Mrs D had a disability when addressing his concerns. I have not seen any evidence Mr D or Mrs D was treated unfairly or suffered discrimination, as defined by the provisions of the Equality Act 2010, in connection with their disability. In my view, the Council did not properly respond to Mr D’s legitimate concerns relating to the timing of care visits, nor did it address them. I do not consider this to amount to discrimination.
  4. The Council was at fault in relation to the time keeping of the care agency. I cannot remedy any injustice to Mrs D because she has now died. However, this failure meant punctuality was not addressed which caused Mr D uncertainty and anxiety. I am therefore recommending a number of remedies.

Behaviour towards carers

  1. The accounts of the care agency and Council were that Mr D displayed unacceptable behaviour towards carers and care staff. These allegations were consistently reported and were supported by similar comments by paramedics who had visited Mr D’s property following a health incident involving Mrs D. Mr D strongly denies the allegations and says the Council failed to investigate the accuracy of the allegations.
  2. In my view, there is a clear conflict of accounts provided by Mr D and the care agency. I do not accept therefore that it would have been possible for the Council to test the accuracy of the allegations. In these circumstances, the Council can only rely on the information it is provided. From the Council’s perspective, allegations were made consistency and by multiple sources. On the evidence, I believe it is more likely than not that Mr D was at times was frustrated and abrupt to the care staff, most likely due to poor time keeping of carers. I believe the Council was therefore justified in arranging a meeting in late 2020 with Mr D and the care agency to discuss Mr D’s behaviour and caution him. There is no evidence to suggest the Council acted inappropriately or was at fault.

Complaints process

  1. In my view, the Council failed to adequately respond to Mr D’s complaint concerning the punctuality of care staff. I believe this issue became lost in the other areas of Mr D’s complaint. In particular, the Council’s complaint response was effectively silent on the issue and provided no means of redress. As a result, there was fault in how Mr D’s complaint was considered. As mentioned, I believe this led Mr D to experience a degree of uncertainty and distress. That being said, I believe the Council made clear its position on all other areas of Mr D’s complaint and correctly signposted him to the Ombudsman if he remained dissatisfied.

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Agreed action

  1. To remedy the fault and injustice identified in this statement, the Council will, within one month of this final decision, take the following actions:
      1. Provide a written apology to Mr D which acknowledges the specific fault and injustice identified in this statement.
      2. Pay Mr D £400 to acknowledge the uncertainty and distress he has suffered, as well as for time and trouble in pursuing his complaint.
      3. Remind the care agency of the importance of care staff adhering to the planned timetable, particularly when the support involves medication times.
      4. Ensure all complaint outcomes are properly addressed in formal responses to service users.

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Final decision

  1. The Council was at fault for failing to address to the punctuality of carers. It also failed to address this matter through its complaints process. This caused Mr D an injustice and so I have recommended several remedies. I have not however seen any evidence of fault to suggest the Council was not justified in challenging Mr D’s behaviour, as reported by the care agency.

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Parts of the complaint that I did not investigate

  1. I have not investigated parts 1(a) and (b) because we do not have jurisdiction to investigate any matter which has been subject to legal proceedings.

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Investigator's decision on behalf of the Ombudsman

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